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April 10, 2014

First Circuit hears argument on whether Eighth Amendment might limit deportation as collateral consequence

This National Law Journal piece, headlined "Court Weighs Whether Deportation Fits Crime," reports on an interesting case that was argued before the First Circuit yesterday.  Here are highlights:

A federal appellate court heard oral arguments Wednesday about whether immigration judges must consider whether deportation amounts to disproportional punishment for a legal permanent resident following a criminal conviction.  The U.S. Court of Appeals for the First Circuit weighed that question in Hinds v. Holder.  

Rogelio Blackman Hinds, 59, a U.S. Marine Corps veteran, is fighting an August 2013 Board of Immigration Appeals ruling upholding his removal.  U.S. Immigration Judge Steven Day ordered Hinds ordered Hinds removed to Panama in March 2013 because of drug and firearms convictions for which he served 18 years in prison.

Hinds claims he should be allowed to stay because he’s lived in the United States for nearly 40 years, is married to a U.S. citizen and fears being targeted by a Panamanian gang to which he says his co-defendant belongs.  Moreover, one of his five adult children is severely mentally and physically disabled and requires constant care.

Hinds also claims severe health problems that may be linked to his military service, including epilepsy, anemia, high blood pressure and post-traumatic stress headaches. His brief argues that the Fifth Amendment and Eighth Amendment, which bans cruel and unusual punishment, require proportionality review....

Amici who have lined up to support Hinds include the Center for Constitutional Rights, the American Immigration Council, the Post-Deportation Human Rights Project at Boston College, the American Civil Liberties Union and a group of law professors.

Judges Jeffrey Howard and O. Rogeriee Thompson sat on the panel with District of New Hampshire Chief Judge Joseph Laplante, sitting by designation.  Howard asked Hinds’ lawyer, Zac Hudson, an associate at Washington’s Bancroft, “What would be the mechanics of doing the balancing you want to have done?”

Hudson replied that if the court ruled in Hinds’ favor without reaching the constitutional questions it “wouldn’t have to delineate a standard.”  The review would be based on the judge’s individual analysis, he said.

Howard then asked Hudson which precedent best supports his argument. “It’s all the due-process cases we cite,” Hudson replied. “Lawful permanent residents have the full protection of the U.S. Constitution.”

Aimee Carmichael of the Justice Department’s Office of Immigration Litigation argued that Hinds wants criminal protections extended to civil proceedings. “The Eighth Amendment does not apply [and he] has not demonstrated that the agency has denied him due process,” she said.

April 10, 2014 at 11:46 AM | Permalink


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||+ Hinds claims he should be allowed to stay because he’s lived in the United States for nearly 40 years +||

If he served 18 years in prison after spending more time committing the crimes for which he was convicted,
this defence seems cartoonish (Al Sharpton-ish?).

Posted by: Adamakis | Apr 10, 2014 3:47:35 PM

The death penalty is supported in the constitution. Exile is considered beyond the pale and not allowed even in the 18th Century version.

(The pale is a stick marking a boundary, in the above, the boundary of decency. Also as in, "The heart of an appellate judge must be impaled to stop the evil escaping forth.")

Posted by: Supremacy Claus | Apr 10, 2014 11:01:46 PM

The Padilla court did say that deportation is part of the penalty for non-citizen offenders (and indeed the most important part of the penalty for many of them), so the idea that removal proceedings are still totally separate civil matters might be hard to swallow.

Posted by: Jonathan Edelstein | Apr 11, 2014 10:34:04 AM

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