First Circuit to decide whether removal requires proportionality review

The U.S. Court of Appeals for the First Circuit heard oral arguments on April 9, 2014 about the role of proportionality in removal decisions. Hinds v. Holder, No. 13-2129 (1st Cir. 2014). Is removal and the inability to return to the United States simply too weighty a sanction for the law to mete out?

This case involves a 58-year-old Jamaican citizen, Rogelio Blackman Hinds, who has lived in the United Since 1975, was honorably discharged from the U.S. Marines, has five U.S. citizen children, and a U.S. citizen wife. He also has a serious criminal history, having been convicted of federal drug offenses and sentenced to 25 years in prison. Brief for Petitioner, Hinds v. Holder, No. 13-2129, at 1, 4 (1st Cir. Nov. 22, 2013). Blackman (his attorney refers to him as Mr. Blackman so I’ll use that name here) was transferred into ICE custody immediately upon completing his criminal sentence. He was subsequently ordered removed as a result of having been convicted of an aggravated felony.

Blackman claims that his removal would violate the Fifth Amendment Due Process Clause and the Eighth Amendment’s prohibition against imposition of cruel and unusual punishment as well as excessive fines, and INA § 240(c)(1)(A). Essentially, he argues that his removal and inability to lawfully return (as a result of having been convicted of an aggravated felony) would constitute a particularly severe penalty meriting proportionality review under the DPC. Pet. Brief at 10. Likewise, he argues that Padilla v. Kentucky, 599 U.S. 356 (2010), calls into question the continuing validity of older Supreme Court decisions suggesting that the Eighth Amendment doesn’t apply to removal questions because deportation is formally categorized as a civil sanction rather than punishment. Pet. Brief. at 24. These are fascinating arguments that I’ll let Blackman’s attorney make in more detail in his briefs (opening brief is here and reply brief is here).

In its response brief, the government pointed to existing case law indicating that, in its estimation, is “abundantly clear and binding” that Blackman’s arguments are losers (a phrase it uses when referring to Blackman’s Eighth Amendment claim, but that could just as well characterize the brief’s take on his Fifth Amendment argument).

What strikes me most about the government’s argument is that it largely fails to address the theme that lays just beneath the surface of Blackman’s argument: the sea changes in immigration law over the last 25 years or so that Padilla acknowledged mean it’s time to reconsider old presumptions. Padilla, Blackman’s attorneys seem to be saying, recognized that immigration law in the early twenty-first century isn’t the immigration law of the early or mid-twentieth century when the Court said on multiple occasions that immigration law isn’t subject to the constitutional protections that normally apply in criminal proceedings. Perhaps somewhat self-centeredly, I read Blackman’s attorneys to be arguing that Padilla recognized that, for many migrants, distinguishing between criminal law and immigration law is, at best, artificial. Criminal consequences and immigration consequences are merely two ends of a single spectrum. A spectrum that I call crimmigration law and that Blackman claims entitles him to individualized proportionality review.

A host of notable amici lined up to support Blackman’s claim. Their briefs are available here.

In time the First Circuit will hopefully answer Blackman. For now, though, what’s clear is that this is cutting-edge litigation with the potential to make groundbreaking law.