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2nd Circ. Says Removal Not Punishment In Deportation Case

2nd Circ. Says Removal Not Punishment In Deportation Case

The Second Circuit on March 28 declined to revive an Ecuadorian man’s petition to escape removal proceedings, ruling that immigration judges needn’t weigh whether deportation is “proportional” to an immigrant’s actions because removal isn’t a punishment.

According to the precedential opinion, Antonio Paul Marin-Marin tried to invoke the Fifth Amendment’s due process clause and the Eighth Amendment’s barring of cruel and unusual punishment, but the court said neither applies to removal as a civil procedure.

“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,” according to the opinion.

Marin-Marin traveled to the U.S. at the age of 17 to live with his mother in Connecticut. Although undocumented, he entered the U.S. safely without inspection, according to the opinion.

The U.S. Department of Homeland Security later designated him as removable because he came into the country illegally, according to the opinion. Marin-Marin agreed he is eligible for deportation but argued “that his removal would be disproportionate to the ground for his removability.”

He said deportation could qualify as “excessive punishment” under the Eighth Amendment or “a grossly excessive penalty” under the Fifth Amendment, the opinion said.

An immigration judge didn’t have authority to consider the constitutionality arguments or to examine the proportionality factor, and the Board of Immigration appeals affirmed without opinion, the filing said.

But the Second Circuit shut down Marin-Marin’s argument that the agency should have conducted a proportionality analysis to determine whether he is removable. The court emphasized that deportation is a “civil procedure” and not a “punishment.”

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