Second Circuit Rejects 5th and 8th Amendment Arguments Against Removal for Unlawful Presence in the United States

 

Introduction

On March 27, 2017, the United States Court of Appeals for the Second Circuit issued a decision in Marin-Marin v. Sessions, 15-2074 [PDF version].

The case concerned a petitioner who sought review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge ordering him removed from the United States. The petitioner sought review, arguing that immigration judges are required to determine whether removal is constitutionally proportionate to the grounds for removal. The Second Circuit rejected the petitioner's argument and denied the petition for review on the basis that removal is not a punishment and thus not subject to proportionality review. In this article, we will examine briefly the facts of the case, the petitioner's arguments, and the Second Circuit's reasons for issuing the decision.

Marin-Marin v. Sessions

Facts and Procedural History

In 2013, the petitioner, Marin-Marin, a native and citizen of Ecuador, entered the United States without inspection. At the time of entry, he was considered to be an unaccompanied juvenile of 17 years of age. He entered the United States to live with his mother in Connecticut.

After entry, the Department of Homeland Security (DHS) charged Marin-Marin as removable based on his unlawful presence in the United States.

In proceedings before an Immigration Judge, Marin-Marin conceded that he was removable and declined to apply for relief from removal (the decision notes that he acknowledged that he was not eligible for special immigrant juvenile status). Marin-Marin sought to terminate removal proceedings on the basis that his removal would be disproportionate to the ground for removability. He argued that removal would either constitute excessive punishment in violation of the Eighth Amendment of the U.S. Constitution, or a grossly excessive penalty in violation of the Fifth Amendment's Due Process Clause.

The Immigration Judge concluded that he did not have jurisdiction to consider Marin-Marin's constitutional arguments or to conduct a proportionality analysis. Accordingly, the Immigration Judge ordered Marin-Marin removed. On appeal, the BIA affirmed the Immigration Judge's decision without opinion. Marin-Marin filed a timely petition for review to the Second Circuit.

Second Circuit Discussion and Decision

The Second Circuit disagreed with the petitioner's (Marin-Marin's) arguments and found them to be without merit. We will examine the Second Circuit's analysis to understand how it reached this conclusion.

The Second Circuit began by quoting from its published decision in Santelises v. Immigration and Naturalization Service, 491 F.2d 1254, 1255-56 (2d Cir. 1974) [PDF version]: “It is settled that deportation, being a civil procedure, is not punishment and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not applicable.” The Second Circuit also cited to the Supreme Court decision in Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) [PDF version], in support of this conclusion.

The Second Circuit explained that the Government did not seek to remove the petitioner as a result of criminal conduct, “but rather based solely on his unauthorized presence in the United States.” Furthermore, the Second Circuit stated that, even when removal is predicated on a criminal act, an alien is not being punished for the criminal act, but is instead being held to the terms under which he or she was admitted. To this effect, the decision cites to the Supreme Court decision in Reno v. Am-Arab Anti Discrimination Comm., 525 U.S. 471, 491 (1999) [PDF version].

To support his claims, the petitioner cited to Padilla v. Kentucky, 559 U.S. 356, 365 (2010) [PDF version], to the effect that the Opinion of the Court in that case stated that “deportation is a particularly severe penalty.” However, the Second Circuit agreed with the First Circuit decision in Hinds v. Lynch, 790 F.3d 259, 265 (1st Cir. 2015) [PDF version], where that court held that “the [Supreme] Court's mere description of deportation as a 'penalty' [in Padilla] … does not call into question the continuing vitality of the Court's precedent holding that the Eighth Amendment is not implicated by a noncitizen's removal.” The Second Circuit further noted that the Supreme Court held in Padilla that deportation “is not, in a strict sense, a criminal sanction.” Padilla itself addressed a challenge to a criminal conviction and pertained to the obligation of counsel to inform noncitizen criminal defendants of the possible immigration consequences of a guilty plea to criminal charges.

The petitioner also argued, relying in part on State Farm Mutual Auto Ins. Co. v. Campbell„ 538 U.S. 408 (2003) [PDF version], that proportionality review is required by the Fifth Amendment's Due Process Clause. In short, the petitioner wanted the Second Circuit to hold that the Immigration Judge erred by not considering whether the removal order was proportional to his ground for removal (being present in the United States without legal authorization).

The Second Circuit found the petitioner's reliance on State Farm to be unavailing. It explained that State Farm, and the decisions which preceded it, “were predicated on problems of fair notice not present in this case.” To highlight the point, the Second Circuit noted that “removal following unauthorized entry is neither novel nor unexpected.” The Second Circuit quoted from its published decision in Cervantes-Ascencio v. U.S. Immigration and Naturalization Service, 326 F.3d 83, 86 (2d Cir. 2003) [PDF version]: “In immigration cases, the Due Process clause requires only that an alien receive notice and a fair hearing where the [Government] must prove my clear, unequivocal, and convincing evidence that an alien is subject to deportation.” The Second Circuit explained in its decision in the instant case that, “[g]iven the clear statutory consequences of entry without inspection, the due process concerns that motivated the State Farm court are simply inapplicable in this case, and thus cannot mandate proportionality review.” The Second Circuit also noted that in Herrera-Molina v. Holder, 597 F.3d 128, 133-34 (2d Cir. 2010) [PDF version], it held that (as described in the instant opinion) “in the context of retroactivity analysis, [] the application of clear immigration statutes does not implicate fair notice concerns.”

For the foregoing reasons, the Second Circuit found that the petitioner's constitutional arguments failed, and it denied his petition for review.

Conclusion

In Marin-Marin, the Second Circuit followed the First Circuit in holding that the Supreme Court's decision in Padilla does not supersede its longstanding precedent that the Eighth Amendment is not applicable in the removal and deportation contexts. Furthermore, it held that the petitioner's Fifth Amendment arguments failed because the due process cases that he relied upon were inapplicable to the civil removal process for an alien who was charged with being present without legal authorization.

Many of the issues in this case stemmed from the civil nature of immigration proceedings. That immigration proceedings are civil in nature is a key point that distinguishes them from criminal proceedings. For examples where we discuss this issue on site in other contexts, please see our articles on Vladimirov v. Lynch, 805 F.3d 955 [see article] and the oral arguments before the Supreme Court in Sessions v. Dimaya [see article].

An alien who is charged with removal for any reason should consult with an experienced immigration attorney immediately. An immigration attorney will be able to evaluate the case and determine if there are any plausible means by which to contest the immigration charges or to otherwise seek relief from removal.