             United States Court of Appeals
                        For the First Circuit



No. 13-2129

                       ROGELIO BLACKMAN HINDS,

                             Petitioner,

                                  v.

    LORETTA E. LYNCH, Attorney General of the United States,*

                             Respondent.



                PETITION FOR REVIEW OF AN ORDER OF THE
                     BOARD OF IMMIGRATION APPEALS



                                Before

                          Howard, Chief Judge,
                        Thompson, Circuit Judge,
                    and Laplante,** District Judge.




     D. Zachary Hudson, with whom Bancroft PLLC was on brief, for
petitioner.
     Dror Ladin, Judy Rabinovitz, ACLU Foundation Immigrants'
Rights Project, Matthew R. Segal, and ACLU Foundation of
Massachusetts on brief for American Civil Liberties Union
Foundation Immigrants' Rights Project and The American Civil

     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
     **   Of the District of New Hampshire, sitting by designation.
Liberties Union of Massachusetts, amici curiae.
     Beth Werlin and American Immigration Council on brief for
American Immigration Counsel and the Post-Deportation Human Rights
Project, amici curiae.
     Sarah H. Paoletti, Diepiriye A. Anga, Mariam Khokhar, Law
School Representatives and Transnational Legal Clinic, University
of Pennsylvania Law School on brief for International and Human
Rights Law Professors and Clinicians, amici curiae.
     Shayana Kadidal and Sunita Patel on brief for The Center for
Constitutional Rights, amicus curiae.
     Aimee J. Carmichael, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, with whom Stuart
F. Delery, Assistant Attorney General, Civil Division and Jennifer
L. Lightbody, Senior Litigation Counsel, Office of Immigration
Litigation, for respondent.



                          June 24, 2015
          HOWARD, Chief Judge.        In this case, we must determine

whether the Supreme Court's description of deportation in Padilla

v. Kentucky as "an integral part . . . of the penalty that may be

imposed on noncitizen defendants who plead guilty to specified

crimes," 559 U.S. 356, 364 (2010), has altered the longstanding

notion that removal is non-punitive and thus does not implicate

the Eighth Amendment's prohibition on cruel and unusual punishment

or   related   constitutional   protections.        Petitioner    Rogelio

Blackman Hinds was convicted of a felony requiring his removal,

and the Board of Immigration Appeals ("BIA") affirmed an order

that he be removed.     Blackman challenges the BIA's decision by

arguing   that,   because   Padilla     described   deportation    as    a

"penalty," his removal violates the Constitution unless a court

conducts an individualized assessment to determine whether his

order of removal is a proportional punishment relative to his

underlying criminal conviction.       As explained below, we conclude

that Padilla has not signaled a break from long-settled law. Thus,

we deny Blackman's petition for review.

                                  I.

          Blackman, a sixty-year-old native of Panama, has been a

lawful permanent resident of the United States since 1975.              In

April 1994, after a jury trial, he was convicted by a federal court

in New York on ten drug and firearm charges.              Blackman was

sentenced to twenty-five years imprisonment, but received credit


                                - 3 -
for good conduct during his incarceration and was released in 2012.

Upon his release, the Department of Homeland Security promptly

issued Blackman a Notice to Appear in removal proceedings, charging

him with removability as an alien convicted of an "aggravated

felony" drug trafficking crime.            See 8 U.S.C. §§ 1101(a)(43)(B);

1227(a)(2)(A)(iii).

            Through counsel, Blackman admitted the allegations in

the   Notice     to    Appear,    but   nevertheless        denied    removability.

Seeking     no      asylum,   withholding,      or   other     relief    from     the

Immigration      Judge    ("IJ"),   Blackman's       sole    ground    for   denying

removability was that his removal would violate his Fifth Amendment

right to due process.             Although he did not testify, Blackman

submitted      an     affidavit   describing     various      factors     that,    he

claimed, should weigh in his favor and against removal.                           For

example, Blackman indicated that he had served honorably in the

United States Marine Corps for four years -- enlisting only a few

months after his arrival in the United States at age twenty.                      He

and his United States-citizen wife now have four children, and

Blackman asserted that his presence in the United States is

necessary to help care for their son, who was seriously injured in

a 1998 car accident.           Finally, Blackman expressed fear that he

would be harmed or killed by gang members if removed to Panama.




                                        - 4 -
He pointed to a prison beating he had suffered in the United States

at the instigation of a co-defendant who now resides in Panama.1

           The    IJ   concluded    that   he   "lack[ed]    authority     to

consider" Blackman's constitutional challenges.         See, e.g., Matter

of C-, 20 I. & N. Dec. 529, 532 (B.I.A. 1992) ("[I]t is settled

that the immigration judge and [the BIA] lack jurisdiction to rule

upon the constitutionality of the [Immigration and Nationality]

Act and the regulations.").        Because Blackman asserted no other

substantive defense to removal, the IJ ordered him removed.               The

BIA affirmed on the same ground, and this petition followed.

                                    II.

           Consistent with his arguments before the IJ and the BIA,

Blackman does not contest that he was convicted of an aggravated

felony   that    renders   him   removable.     Nor   has   he   sought   any

substantive relief from removal. Thus, in order for us to overturn

the BIA's decision, Blackman must show that his removal would be

unconstitutional.      See 8 U.S.C. § 1252(a)(2)(D).

           The Constitution vests Congress with plenary power to

set the circumstances under which noncitizens are permitted to

enter and remain in the United States.           See, e.g., Flemming v.


     1 While not determinative, we note that Blackman repeatedly
refers to his "decades of lawful residence in this country." The
record refutes this suggestion. Blackman arrived in the United
States in 1975, was arrested in 1990 for activities that presumably
pre-dated his arrest date, and then served eighteen years in prison
following his 1994 conviction.


                                   - 5 -
Nestor,     363   U.S.   603,   616     (1960).      In     undertaking   that

responsibility, Congress has at times regulated by reference to an

alien's criminal convictions.           Pursuant to statute, aliens who

commit certain enumerated crimes are automatically removable.

What an alien may see as a simple criminal infraction may in fact

pose serious consequences for her continued presence in the United

States.

            In light of this reality, a majority of the Supreme Court

held in Padilla that defense counsel in a criminal case provides

constitutionally ineffective assistance, and deprives a noncitizen

of the Sixth Amendment right to counsel, if she fails to "inform

her client whether his plea carries a risk of deportation."                 559

U.S. 356, 374 (2010).      Noting that "immigration reforms over time

have expanded the class of deportable offenses and limited the

authority    of   judges   to   alleviate     the   harsh    consequences    of

deportation," id. at 360, the Court found it compelling that

"deportation is an integral part -- indeed sometimes the most

important part -- of the penalty that may be imposed on noncitizen

defendants who plead guilty to specified crimes,"2 id. at 364

(emphasis added) (footnote omitted).



     2  Instead of "deportation," Congress now uses the term
"removal." See Calcano-Martinez v. I.N.S., 533 U.S. 348, 350 n.1
(2001). Because Padilla refers to deportation, and because many
of the Supreme Court's decisions in this arena pre-date the change,
we use the terms interchangeably throughout this opinion.


                                      - 6 -
            Padilla dealt only with defense counsel's obligation in

a criminal case to apprise a noncitizen defendant of her plea's

immigration consequences.3       But Blackman asserts that the Court's

description of deportation as a "penalty" has dramatic and far-

reaching      consequences     and      has    necessarily   altered    the

administrative removal process as well.          Placing heavy reliance on

Padilla's description of removal as a "penalty," Blackman argues

that the Constitution mandates that an IJ, or this court, assess

whether the sting of deportation and its accompanying reentry bar

is   a    proportionate      sanction    for    his   underlying   criminal

conviction.    When "those penalties would be disproportionate under

the circumstances of the individual case," Blackman contends that

"a lawful permanent resident cannot be removed and barred from re-

entry."    In essence, he claims that the equities of an alien's

particular case might require that an alien remain in the United

States, either temporarily or permanently, despite Congress's

statutory mandate that he be removed.

            Blackman grounds this argument in two distinct, but (at

least in these circumstances) related, constitutional provisions:



     3 Citing Padilla, Blackman makes a fleeting reference to the
"possibility" that his defense counsel failed to apprise him of
the immigration consequences of his conviction. Not only is this
argument undeveloped, but Padilla is entirely inapposite because,
while Blackman was convicted after a jury trial, Padilla pled
guilty and his counsel's failure thus may have prevented Padilla
from making an informed decision whether to enter that plea.


                                     - 7 -
the   Eighth     Amendment    prohibition         against   cruel    and    unusual

punishment,      and    the   Fifth       Amendment's    due   process      clause.

Together, these two clauses impose "substantive limits" on the

government's discretion to impose "criminal penalties and punitive

damages."   Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532

U.S. 424, 433 (2001). In either case, the government exceeds those

limits    when     it    imposes      a     punishment      that    is     "'grossly

disproportional to the gravity of defendants' offenses.'"                    Id. at

434 (ellipses and alterations omitted) (quoting United States v.

Bajakajian, 524 U.S. 321, 344 (1998)).4

            Yet, federal courts have long described removal orders

as non-punitive and, therefore, not punishment.                     As we explain

below, we reject Blackman's contention that Padilla heralded a

dramatic change in this long-settled view.



      4Because the Court has described the two clauses in tandem,
and their limitations together, see Cooper Indus., 532 U.S. at
433-34, our discussion of the Eighth Amendment largely disposes of
Blackman's due process argument.       For that same reason, and
although the government curiously has not pressed waiver here, we
excuse Blackman's failure to present his Eighth Amendment claim to
the BIA. The "BIA is without jurisdiction to adjudicate purely
constitutional issues," Ravindran v. I.N.S., 976 F.2d 754, 762
(1st Cir. 1992), and we have explained that some claims of
"deprivation of constitutional rights . . . are exempt from th[e]
exhaustion requirement because the BIA has no power to address
them," Bernal-Vallejo v. I.N.S., 195 F.3d 56, 64 (1st Cir. 1999).
Here, because the BIA expressly held that it was without "authority
to rule on the constitutionality or validity of the Act or the
regulations it administers," we have no doubt that the BIA would
similarly have held that it was unable to consider Blackman's
Eighth Amendment attack. Thus, we will review it.


                                          - 8 -
A.   The Eighth Amendment

             Blackman first contends that the Eighth Amendment, which

prohibits a punishment "if it is grossly disproportionate to the

underlying offense," United States v. Lyons, 740 F.3d 702, 731

(1st Cir. 2014) (internal quotation marks and citation omitted),

demands a proportionality inquiry in the removal context.

             Despite    the    close    association     between   criminal

convictions and removal, however, for more than a century federal

courts have described orders of removal as non-punitive.                 See,

e.g., Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893);

see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

491 (1999).       When noncitizens are removed because they have

committed serious state or federal offenses, Congress has simply

determined     that    those   aliens   are   among   the   categories     of

noncitizens who pose a particular concern to the nation's welfare.

Mahler v. Eby, 264 U.S. 32, 39 (1924).         By referencing a crime as

a justification for removing an alien, Congress does not seek to

punish an alien either generally or for her particular federal or

state offense.    Id.    Instead, if the government seeks to remove an

alien because of "some act the alien has committed," he "is merely

being held to the terms under which he was admitted."             Am.-Arab

Anti-Discrimination Comm., 525 U.S. at 491.           For this reason, and

"however severe its consequences," the Court has "consistently




                                   - 9 -
classified" removal "as a civil rather than a criminal procedure."

Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952).

           Moreover, although the outcome is undeniably severe for

an alien, because removal is not intended to punish, federal courts

have consistently held that the Eighth Amendment, the ex post facto

clause, the double jeopardy clause, and other attendant criminal

protections do not apply to orders of removal.        Accordingly -- and

again for over a century -- the description of deportation as non-

punitive     has   expressly     foreclosed      Blackman's     argument.

Constitutionally   speaking,    there   is   a   categorical   difference

between a civil prohibition and a criminal punishment.             "In the

few cases where the Court has had occasion to confront claims that

impositions outside the criminal process constituted cruel and

unusual punishment, it has had no difficulty finding the Eighth

Amendment inapplicable."    Ingraham v. Wright, 430 U.S. 651, 667-

68 (1977).    Thus, the Court has concluded that the amendment is

entirely   "inapplicable   to   the   deportation   of   aliens"   because

"deportation is not a punishment for crime."        Id. at 668 (internal

quotation marks omitted); see also Fong Yue Ting, 149 U.S. at 730.

For similar reasons, the ex post facto clause does not apply to

deportation proceedings, and "legislation retroactively making

past criminal activity a new basis for deportation has been

repeatedly upheld."   United States v. Bodre, 948 F.2d 28, 32 (1st

Cir. 1991); see also Galvan v. Press, 347 U.S. 522, 531 (1954)


                                 - 10 -
(noting   that   the   ex   post    facto    clause's      inapplicability      to

deportation "has been the unbroken rule").           And because it is non-

punitive, we have also rejected the double jeopardy clause's

application to deportation.5        See Arevalo v. Ashcroft, 344 F.3d 1,

10 n.6 (1st Cir. 2003); accord De La Teja v. United States, 321

F.3d 1357, 1364-65 (11th Cir. 2003).

           The thrust of Blackman's argument is that the Court's

decision in Padilla effected a sea change in the way the Court

views removal, upset this unbroken line of authority, and "calls

the continuing validity of those statements into question."                     In

our assessment, however, Padilla has not altered this law.

           To the extent that Blackman seeks refuge in the Court's

mere description of deportation as a "penalty," that term 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    label,    alone,      has   never    been



     5 The common inquiry across the Court's Eighth Amendment, ex
post facto, and double jeopardy jurisprudence is determining
whether the government's sanction is punitive in nature and
intended to serve as punishment. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 & nn.22-28 (1963).      When answering that
question, the Court considers several factors which are "designed
to apply in various constitutional contexts." Smith v. Doe, 538
U.S. 84, 97 (2003). Accordingly, where useful, we rely on ex post
facto and double jeopardy cases to determine whether removal can
be classified as punishment. The Supreme Court has done the same
when analyzing these types of cases. See, e.g., id. at 94 (citing
double jeopardy precedent when deciding an ex post facto
challenge).


                                    - 11 -
dispositive.     "[B]oth criminal and civil sanctions may be labeled

'penalties'" so any reliance on the descriptor is "unavailing."

United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364

n.6 (1984) (holding that forfeiture proceeding was not barred by

the   double   jeopardy     clause    because     it   was     not    intended    as

punishment).        In   Padilla,    itself,     the   Court    was    careful    to

reiterate that removal "is not, in a strict sense, a criminal

sanction."     559 U.S. at 365.      Indeed, to the extent that semantics

are informative, the Court continues to refer to removal merely as

a "consequence" of a conviction, not as a penalty for criminal

conduct.     See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015)

(describing     a    conviction      as   "the    trigger      for    immigration

consequences"); id. at 1990 n.11 (referring to removal and other

"immigration consequences to controlled-substance offenses").

             Instead, although he never fully explains it, Blackman's

implicit argument may be that the Court signaled that it now views

removal as a punishment for an underlying crime for which a

noncitizen has been convicted when it described deportation as a

"penalty."     We disagree.

             To be sure, Padilla accurately recognized that "[o]ur

law   has    enmeshed     criminal    convictions      and     the    penalty     of

deportation for nearly a century," making "removal nearly an

automatic result for a broad class of noncitizen offenders."                     559

U.S. at 365-66.      No one can dispute that fact.           Although narcotics


                                     - 12 -
offenses have "provided a distinct basis for deportation as early

as 1922," Congress has identified an increasingly broadening set

of criminal convictions -- including the expansive category of

"aggravated felonies" within which Blackman's drug convictions

fall -- that will render a noncitizen removable.               See generally

id. at 360.     At the same time, Congress has conversely narrowed

the circumstances in which courts and the Attorney General may

grant discretionary relief from removal.            Id. at 363-64.   Thus, as

Blackman's case puts into sharp relief, removal is a natural and

inescapable    consequence        that    follows   from   many    noncitizen

offenders' criminal convictions.

            Yet, there is a critical distinction between recognizing

that a particular consequence might follow -- nearly automatically

-- from a criminal conviction and classifying that consequence as

a sanction intended to punish a noncitizen for that criminal

activity.     Indeed, there are a whole host of consequences that

flow indelibly from a conviction.            The mere fact that a criminal

conviction triggers a consequence has never been the operative

test to determine whether that consequence is punitive or otherwise

implicates the cruel and unusual punishment clause, the double

jeopardy    clause,   the    ex    post    facto    clause,   or   any   other

constitutional protection.         See, e.g., Smith v. Doe, 538 U.S. 84,

92, 105-06 (2003) (holding that Alaska sex offender registration

law was non-punitive and permissible under the ex post facto


                                    - 13 -
clause); Hudson v. United States, 522 U.S. 93, 104 (1997) (noting

that occupational debarment has not "historically been viewed as

punishment,"    and    holding   that    a     law   barring    individuals     who

violated federal banking statutes from further participation in

the banking industry did not violate the double jeopardy clause);

Hawker v. New York, 170 U.S. 189 (1898) (same regarding revocation

of medical license); Simmons v. Galvin, 575 F.3d 24, 44-45 (1st

Cir. 2009) (noting that "felon disenfranchisement has historically

not been regarded as punitive").

             And even the fact that the Court or a legislative body

believes that a consequence is significant enough that it requires

some notice to the defendant, does not transform that consequence

into a criminal punishment.           The Court has definitively said so.

"The policy to alert convicted offenders to the civil consequences

of   their   criminal    conduct      does   not     render    the     consequences

themselves punitive."      Smith, 538 U.S. at 95-96.                 Thus, the mere

fact that the Court in Padilla held that a criminal defendant must

be adequately advised about the immigration consequences of a

guilty plea does not similarly indicate that the consequence is a

punitive, criminal one that may not be imposed unless it is a

proportional sanction relative to the underlying criminal offense.

             If we had any doubt about Padilla's import, the Court's

subsequent decision in Chaidez v. United States would resolve it.

There,   the   Court    held   that    Padilla       set   a   new    rule   without


                                      - 14 -
retroactive effect in habeas proceedings.         133 S. Ct. 1103, 1105

(2013).   Its analysis makes clear that the Court did not intend to

upset settled law in Padilla simply by characterizing removal as

a "penalty."        The Chaidez majority explained that Padilla had

"breach[ed] the previously chink-free wall between [the] direct

and collateral consequences" of criminal convictions. Id. at 1110.

Before Padilla, federal courts had "almost unanimously concluded"

that the Sixth Amendment did not require "attorneys to inform their

clients   of    a   conviction's   collateral   consequences,    including

deportation."       Id. at 1109.     But in the Court's understanding,

Padilla broke entirely new ground when it held that defense

counsel's advice about a conviction's "non-criminal consequences,"

including      deportation,   were    not   wholly   beyond     the   Sixth

Amendment's reach.6     Id. at 1110.    It would be far from consistent

-- indeed, altogether incongruous -- for the Court to so heavily

emphasize how Padilla charted a new course by extending Sixth

Amendment protections to a conviction's non-criminal consequences

while all the while intending to bring removal into the ambit of

"punishment," with all of its attendant safeguards.              In short,


     6 While Chaidez appears to describe deportation consequences
as one of many "collateral consequences of a guilty plea," 133 S.
Ct. at 1109, the Court was more equivocal in Padilla, noting only
that "[d]eportation as a consequence of a criminal conviction is
. . . uniquely difficult to classify as either a direct or a
collateral consequence."   559 U.S. at 366.   Collateral or not,
however, it is clear that the Court did not intend to change its
conception of a removal order as non-punishment.


                                   - 15 -
Blackman's reading of Padilla is irreconcilable with the Court's

continuing description of removal as involving simply a non-

criminal consequence of a guilty plea.

          Claiming that removal's civil character is immaterial

for application of the Eighth Amendment, Blackman also relies on

Austin v. United States, where the Court eschewed a clean line

between civil and criminal proceedings and held that the Eighth

Amendment's Excessive Fines clause applied to civil forfeiture.

509 U.S. 602, 607-10 (1993). For two distinct reasons any reliance

on Austin is misplaced.      First, and quite obviously, the case has

no application because removal is not the imposition of a fine and

does not implicate the Excessive Fines clause.            Accord Zamora-

Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir. 2008).           The Court

made that limitation clear in a later case, where it explained

that classifying civil forfeiture as an excessive fine did not,

categorically,   transform    all   civil   forfeitures   into    criminal

sanctions. United States v. Ursery, 518 U.S. 267, 287 (1996) ("The

holding of Austin was limited to the Excessive Fines Clause of the

Eighth Amendment, and we decline to import the analysis of Austin

into our double jeopardy jurisprudence.").         We similarly think

that the Court would be reticent to import Austin's analysis into

the removal context.

          But even more tellingly -- although the Court would later

state that Austin did not hold that civil forfeitures "are so


                                 - 16 -
punitive as to constitute punishment for the purposes of double

jeopardy," Ursery, 518 U.S. at 287 -- the crux of the Court's

decision in Austin was its recognition that, at least in some

respects, "'[t]he notion of punishment, as we commonly understand

it, cuts across the division between the civil and criminal law,'"

509 U.S. at 610.   The Court's analysis hinged on its view that the

civil forfeiture statute at issue there implicated the Eighth

Amendment's Excessive Fines clause because the statute served, at

least in some part, as punishment.      Id.   The Court concluded that

both at the founding and at the time of its decision civil

forfeiture served "to deter and to punish."           Id. at 621-22.

Because we have already concluded that Padilla does not indicate

that the Supreme Court has come to view removal as punishment,

Blackman's reliance on Austin is necessarily unavailing.

          At bottom, despite Blackman's heavy, undue reliance on

Padilla's description of the removal as a "penalty" that flows

from a criminal conviction, we do not think the Court intended to

signal an implicit about-face from over a century of precedent

through its passing semantic choice of a particular word.7      Such a


     7 Blackman repeatedly emphasizes the Court's description of
deportation as an "integral" or "important part" of "the penalty
that may be imposed on noncitizen defendants who plead guilty to
specified crimes." Padilla, 559 U.S. at 364. Yet, the remark's
context and the amicus brief that the Court cites to support it
make clear that the Court was referencing the relative importance
to the alien of particular consequences that flow from a guilty
plea, not deportation's importance to the government as a


                               - 17 -
holding "would have represented a major innovation, and a lower

court should be slow to assume that the Supreme Court has taken a

significant doctrinal step by indirection or innuendo."       ConnectU

LLC v. Zuckerberg, 522 F.3d 82, 93 (1st Cir. 2008).     To be sure,

given Congress's increasing list of criminal prohibitions that

subject a noncitizen to removal, it may no longer be accurate to

classify the "coincidence of the local penal law with the policy

of Congress" as merely "an accident."     Bugajewitz v. Adams, 228

U.S. 585, 591 (1913). We nevertheless think that removal continues

to operate simply as "a refusal by the government to harbor persons

whom it does not want," id., not as a punishment within the meaning

of the Constitution intended to acutely sanction a noncitizen for

his underlying criminal conviction.

           Our holding aligns with the conclusions of the other

circuits that have considered this question since Padilla --

although   those   circuits   reached   their   conclusions    in   an

unpublished opinion, see Veras-Martinez v. Holder, No. 14-428,

2015 WL 1381500, at *1 (2d Cir. Mar. 27, 2015), or without

referencing Padilla, see Eid v. Thompson, 740 F.3d 118, 126 (3d


particularly compelling sanction.    See id.; see also Brief for
Asian American Justice Center et al. as Amici Curiae Supporting
Petitioner at 12, Padilla v. Kentucky, 559 U.S. 356 (2010) (No.
08-651) (noting that "[f]or many non-citizens facing criminal
prosecutions, the most important consideration in deciding whether
to accept a guilty plea is the effect that the decision will have
on their ability to remain in the United States with their
families" (emphasis added)).


                               - 18 -
Cir. 2014).     Other circuits have likewise concluded, in the course

of rejecting ex post facto arguments, that the Supreme Court's

decision in Padilla did not indicate that it now views removal as

punishment.      See Morris v. Holder, 676 F.3d 309, 317 (2d Cir.

2012); Alvarado-Fonseca v. Holder, 631 F.3d 385, 391-92 (7th Cir.

2011).

            We further note what may, by now, be obvious.           To accept

Blackman's argument and hold that removal proceedings impose a

criminal penalty would seem to implicate all of those "other

rubrics" that apply to criminal proceedings.            See Arevalo, 344

F.3d at 10 n.6.        Yet, odd results would obtain if those rubrics

were to apply to orders of removal.         Because a noncitizen removed

on the basis of a felony conviction likely would have already been

sentenced for that conviction, the double jeopardy clause would

appear     to   bar   altogether   his   deportation    as   a    successive

punishment.     That result would, in effect, gut Congress's entire

removal scheme.       In addition, another curious result of Blackman's

argument would seem to be that noncitizens convicted of a removable

offense (and thus for whom deportation might be called a criminal

punishment)      would     have    the   benefit   of    a       case-by-case

proportionality assessment under the Eighth Amendment, while those

who are removed on other, non-criminal grounds would not.             But it

is illogical that a conviction should somehow inure to an alien's

benefit.


                                   - 19 -
           For   all    these   reasons    we   conclude    that     the   Eighth

Amendment continues to be inapplicable, and that Blackman is not

entitled to a proportional weighing of his circumstances.

B.   The Due Process Clause

           In    a   similar    vein,   Blackman   argues     that   the    Fifth

Amendment's due process clause8 requires that the immigration

consequences of his conviction be proportionate to his criminal

conduct.   With respect to punitive damages, the Court has held

that due process prohibits punitive damages or other penalties

that are "'grossly excessive' in relation to" the government's

"legitimate interests in punishment and deterrence."                  BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 568 (1996); see also id. at 575

(setting forth three-factor test to evaluate constitutionality of

a punitive damages award).

           Beyond      the   fact   that   Blackman   cites    no    case    even

suggesting that Gore and its progeny apply beyond the punitive

damages setting, his argument suffers from a more basic infirmity.

It fails for the simple reason that the entire underpinning of the

Court's doctrine is that punitive damages awards "serve the same

purposes as criminal penalties."           State Farm Mut. Auto. Ins. Co.


     8 Because Blackman contests the federal government's order of
removal, his claim is predicated on the Fifth Amendment, not the
Fourteenth Amendment.     Nevertheless, despite the government's
claim to the contrary, we treat cases decided by the Supreme Court
under both amendments equivalently. See United States v. Neto,
659 F.3d 194, 201 n.7 (1st Cir. 2011).


                                    - 20 -
v. Campbell, 538 U.S. 408, 417 (2003). As the Court has explained,

"[t]he Due Process Clause of the Fourteenth Amendment prohibits

the imposition of grossly excessive or arbitrary punishments on a

tortfeasor."   Id. at 416 (emphasis added).    "The reason is that

'[e]lementary 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.'" Id. at 417

(quoting Gore, 517 U.S. at 574).

          Because we do not think the Court's description of

removal as a penalty has changed its assessment that removal is

not a punishment -- for the underlying conviction for which a

noncitizen felon is removed or for any other reason -- we likewise

think the Fifth Amendment does not require the proportionality

assessment Blackman demands.9   Cf. Cooper Indus., 532 U.S. at 433-

34 (discussing the Eighth Amendment and due process together).


     9 Punitive damages serve a deterrent purpose, Gore, 517 U.S.
at 568, and to determine whether a measure is a criminal penalty
more generally, the Court likewise considers whether the measure
"promote[s] the traditional aims of punishment -- retribution and
deterrence,'" Hudson v. United States, 522 U.S. 93, 99 (1997)
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69
(1963)).   To bring himself within this doctrine, in a passing
footnote Blackman cites legislative history suggesting that
reentry bars, which are "attendant to deportation," Dada v.
Mukasey, 554 U.S. 1, 11-12 (2008), serve to deter repeated unlawful
entry into the United States.
     For two reasons this description, even if accurate, does not
alter our analysis. First, one must be precise about the relevant
conduct a measure is intended to deter.      To be consistent with


                                - 21 -
C.   Constitutional Avoidance

             Finally, Blackman claims that we need not definitively

hold that the Constitution requires a proportionality analysis.

Instead, citing the canon of constitutional avoidance, he urges us

to interpret 8 U.S.C. § 1229a(c)(1)(A) to avoid any constitutional

infirmities and, thus, to require an IJ to consider proportionality

when determining whether an alien is removable.         See 8 U.S.C. §

1229a(c)(1)(A)("At       the   conclusion   of   the   proceeding     the

immigration judge shall decide whether an alien is removable from

the United States.").      This argument necessarily fails.     Because

an alien's categorical removal absent a proportionality review

poses   no     serious    constitutional    problem,   this   canon    of

construction is altogether inapplicable. See, e.g., Warger v.




Blackman's claim that Padilla recognized deportation as a penalty
for an underlying criminal conviction, removal bars would need to
deter that underlying criminal conduct.       But the legislative
history speaks of deterring individuals from unlawfully re-
entering the country. It says nothing about whether those bars
deter individuals from committing the underlying criminal offenses
for which they are being deported. Second, even if reentry bars
did in some respect deter criminal conduct, a penalty that serves
merely an incidental deterrent function does not automatically
transform that penalty into a punishment. See Hudson, 522 U.S. at
105 (noting that the "mere presence" of a deterrent purpose is
"insufficient to render a sanction criminal, as deterrence may
serve civil as well as criminal goals" (internal quotation marks
omitted)); accord Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995).
"Any number of governmental programs might deter crime without
imposing punishment." Smith, 538 U.S. at 102.


                                  - 22 -
Shauers, 135 S. Ct. 521, 529 (2014); United States v. Dwinells,

508 F.3d 63, 70 (1st Cir. 2007).

                                            III.

            In the end, our holding is bolstered by the dramatic

separation of powers consequences that would follow if we accepted

Blackman's reading of Padilla.                   His argument boils down to an

assertion that in seemingly any removal proceeding an IJ or a

reviewing       court    is   required      to     assess    whether     removal    is   a

proportional penalty for the alien's crime.                       But, in urging us to

endorse     a    case-by-case        weighing        of     an    alien's   individual

circumstances against the penalty of removal, Blackman's argument

is in effect "an impermissible effort to shift to the judiciary

the power to expel or retain aliens."                     Enwonwu v. Gonzales, 438

F.3d 22, 28 (1st Cir. 2006).                The Constitution, however, assigns

to Congress "the tasks of defining how aliens are admitted to the

United States, whether and under what conditions they may stay,

and under what conditions such an alien will be removed or may

avoid removal."         Id.

            We do not deny that lawful permanent residents, like

Blackman,       "enjoy[]      the   full    protection       of    the   United    States

Constitution."          Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st

Cir. 2000). Nor do we gainsay that "the Due Process Clause applies

to all 'persons' within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary, or


                                           - 23 -
permanent."    Zadvydas v. Davis, 533 U.S. 678, 693 (2001).             But, at

least when delineating those classes of aliens who are removable,

the   Constitution     in   its   fullest    application      places    little

substantive limit on Congress's reasonable policy decisions.               See

Enwonwu, 438 F.3d at 30-31 (citing Galvan, 347 U.S. at 530-33).

"Deportation is strictly a Congressional policy question in which

the judiciary will not intervene as long as procedural due process

requirements have been met."       LeTourneur v. I.N.S., 538 F.2d 1368,

1370 (9th Cir. 1976).

             Unless and until the Supreme Court conceives of removal

as a punishment, or otherwise holds that the Eighth Amendment or

the   due    process   clause     requires   a    wholesale     case-by-case

assessment of the wisdom of removing a particular alien, we refuse

to take that adventurous leap on our own and "substitute our

political judgment for that of . . . Congress."            Fiallo v. Bell,

430 U.S. 787, 798 (1977).         We decline to impose such an extra-

legislative     discretionary     weighing   regime   in   the     place     of

Congress's    categorical    policy   judgments    about   which       criminal

convictions should subject an alien to removal.

             Accordingly, Blackman's petition for review is denied.




                                   - 24 -
