Marin-Marin v. Sessions

Filing

OPINION, the petition for review is denied, per curiam, by PWH, DAL, N. GARAUFIS, FILED.[1997700] [15-2074]

Case 15-2074, Document 79-1, 03/27/2017, 1997700, Page1 of 5

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,
___________________
Before:

Respondent.

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.

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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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