15-2074
Marin-Marin v. Sessions


                                      In the
                          United States Court of Appeals
                             For the Second Circuit

                                   ___________________

                                    August Term, 2016

           (Submitted: November 4, 2016                Decided: March 27, 2017)

                                   Docket No. 15-2074
                                   ___________________

                              ANTONIO PAUL MARIN-MARIN,

                                                                         Petitioner,
                                            –v. –

           JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

                                                                         Respondent.
                                   ___________________

Before:
              HALL, LIVINGSTON, Circuit Judges, GARAUFIS,* District Judge.

       Petitioner Antonio Paul Marin-Marin seeks review of an order of the Board of
Immigration Appeals affirming a decision of an Immigration Judge ordering him
removed from the United States. Marin-Marin argues that, before issuing a removal
order, immigration judges are required to determine whether removal is
constitutionally proportionate to the grounds for removal. Marin-Marin’s
proportionality argument fails because removal is not a punishment.

       PETITION DENIED.
                                   ___________________

                             JAMES A. WELCOME, Waterbury, CT, for Petitioner.
                                                            
*
   Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of
New York, sitting by designation. 

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                         JESSICA A. DAWGERT, Senior Litigation Counsel, Office of
                         Immigration Litigation, Civil Division (Benjamin C.
                         Mizer, Principal Deputy Assistant Attorney General,
                         Melissa Neiman-Kelting, Senior Litigation Counsel, on
                         the brief), United States Department of Justice,
                         Washington, D.C., for Respondent.

                               ___________________

PER CURIAM:

      Petitioner Antonio Paul Marin-Marin, a native and citizen of Ecuador, seeks

review of a May 28, 2015 order of the Board of Immigration Appeals (“BIA”) and the

underlying January 16, 2014 decision of an Immigration Judge (“IJ”) finding him

removable based on his unlawful entry to the United States. The issue before us is

whether either the Fifth Amendment’s due process clause or the Eighth

Amendment’s prohibition on cruel and unusual punishment requires consideration

and weighing of the proportionality of removal against the grounds for removability.

Because removal is not punitive and no fair notice considerations are present here,

we hold that no such consideration is necessary.

                                 BACKGROUND

      In 2013, Marin-Marin, a native and citizen of Ecuador, entered the United

States without inspection. At the time, he was an unaccompanied juvenile of 17 who

had entered the country to live with his mother in Connecticut. The U.S.

Department of Homeland Security charged that Marin-Marin was subject to

removal based on his unlawful presence in the United States.




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      Before an IJ, Marin-Marin, through counsel, conceded that he was removable

as charged and declined to apply for relief from removal.1 Instead, Marin-Marin

moved to terminate his removal proceedings, arguing that his removal would be

disproportionate to the ground for his removability, and thus would constitute

either excessive punishment in violation of the Eighth Amendment or a grossly

excessive penalty in violation of the Fifth Amendment’s Due Process Clause. The IJ

concluded that he did not have jurisdiction to consider Marin-Marin’s constitutional

arguments or conduct a proportionality analysis. The BIA affirmed the IJ’s decision

without opinion. Marin-Marin has filed a timely petition for review of that decision.

                                   DISCUSSION

      Marin-Marin     argues   that   the       agency   was   required   to   conduct   a

proportionality analysis to determine whether his removal is excessive when

compared to the noncriminal ground for his removal. We disagree and hold that

there is no merit to Marin-Marin’s claim that the agency is constitutionally required

to consider whether removal is proportionate to the grounds for removability.

      “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.” Santelises v. Immigration and Naturalization Serv., 491 F.2d 1254,

1255–56 (2d Cir. 1974); see also Harisiades v. Shaughnessy, 342 U.S. 580, 594

(1952); Sunday v. Att’y Gen., 832 F.3d 211, 218–19 (3d Cir. 2016); Hinds v. Lynch,

790 F.3d 259, 264–68 (1st Cir. 2015). The Government here did not seek to remove

                                                            
1 Marin-Marin was 18 years old at the time he was ordered removed and acknowledged that

he was not eligible for special immigrant juvenile status.

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Marin-Marin as a result of criminal conduct but rather based solely on his

unauthorized presence in the United States. And, in general, when removal is

predicated on a criminal act, “the alien is not being punished for that act (criminal

charges may be available for that separate purpose) but is merely being held to the

terms under which he was admitted.” Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 491 (1999).

      Marin-Marin notes that in Padilla v. Kentucky, the Supreme Court stated

that “deportation is a particularly severe penalty.” 559 U.S. 356, 365 (2010).

However, “the Court’s mere description of deportation as a ‘penalty’ . . . 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.” Hinds, 790 F.3d at

265. Indeed, in Padilla, the Court reiterated that deportation “is not, in a strict

sense, a criminal sanction,” and held only that counsel must inform noncitizen

criminal defendants of potential immigration consequences of a guilty plea. 559 U.S.

at 365–66; cf. Chaidez v. United States, 133 S. Ct. 1103, 1110–11 (2013)

(characterizing Padilla as “holding that the failure to advise about a non-criminal

consequence could violate the Sixth Amendment” (emphasis added)).

      Relying on decisions like State Farm Mutual Auto Ins. Co. v. Campbell, 538

U.S. 408 (2003), Marin-Marin argues that proportionality review is required by the

Fifth Amendment’s Due Process Clause. But State Farm, and the decisions which

preceded it, were predicated on problems of fair notice not present in this case,

where removal following unauthorized entry is neither novel nor unexpected. See id.



                                           4
at 417 (explaining that the reason procedural and substantive restrictions on

punitive damage awards exist is because “elementary notions of fairness enshrined

in our constitutional jurisprudence dictate that a person receive fair notice not only

of the conduct that will subject him to punishment, but also of the severity of the

penalty that a State may impose”). As we have explained, “[i]n immigration cases,

the Due Process clause requires only that an alien receive notice and a fair hearing

where the [Government] must prove by clear, unequivocal, and convincing evidence

that an alien is subject to deportation.” Cervantes-Ascencio v. U.S. Immigration and

Naturalization Serv., 326 F.3d 83, 86 (2d Cir. 2003). Given 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. See Herrera-Molina v. Holder, 597 F.3d 128, 133–34 (2d Cir.

2010) (explaining, in the context of retroactivity analysis, that the application of

clear immigration statutes does not implicate fair notice concerns).

      For the reasons stated, Marin-Marin’s constitutional arguments fail. We need

not further consider his argument that the IJ deprived him an opportunity to apply

for relief from removal. Not only is this argument plainly belied by the record, but

Marin-Marin failed to exhaust that argument before the BIA. See Steevenez v.

Gonzales, 476 F.3d 114, 117 (2d Cir. 2007); see also Theodoropoulos v. Immigration

and Naturalization Serv., 358 F.3d 162, 172 (2d Cir. 2004).

                                  CONCLUSION

      For the foregoing reasons, the petition for review is DENIED.



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