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, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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.
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 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
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 (BIA 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.
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. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (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, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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, 130 S.Ct. 1473, 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,"
Blackman grounds this argument in two distinct, but (at least in these circumstances) related, constitutional provisions: 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, 121 S.Ct. 1678, 149 L.Ed.2d 674 (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, 121 S.Ct. 1678 (ellipses and alterations omitted) (quoting United States v. Bajakajian, 524 U.S. 321, 344, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)).
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.
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.
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, 97 S.Ct. 1401, 51 L.Ed.2d 711 (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, 97 S.Ct. 1401 (internal quotation marks omitted); see also Fong Yue Ting, 149 U.S. at 730, 13 S.Ct. 1016. 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, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (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.
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 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, 104 S.Ct. 1099, 79 L.Ed.2d 361 (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, 130 S.Ct. 1473. 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, ___ U.S. ___, 135 S.Ct. 1980, 1986, ___ L.Ed.2d ___ (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, 130 S.Ct. 1473. No one can dispute that fact. Although narcotics 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, 130 S.Ct. 1473. 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, 130 S.Ct. 1473. 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,
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, 123 S.Ct. 1140. 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 retroactive effect in habeas proceedings. ___ U.S. ___, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (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.
Claiming that removal's civil character is immaterial for application of the Eighth
But even more tellingly — although the Court would later state that Austin did not hold that civil forfeitures "are so punitive as to constitute punishment for the purposes of double jeopardy," Ursery, 518 U.S. at 287, 116 S.Ct. 2135 — 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, 113 S.Ct. 2801. 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, 113 S.Ct. 2801. 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.
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, 604 Fed.Appx. 46, 47-48, 2015 WL 1381500, at *1 (2d Cir. Mar. 27, 2015), or without referencing Padilla, see Eid v. Thompson, 740 F.3d 118, 126 (3d 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.
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.
In a similar vein, Blackman argues that the Fifth Amendment's due process clause
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
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.
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. Shauers, ___ U.S. ___, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014);
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 permanent." Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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, 74 S.Ct. 737). "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, 97 S.Ct. 1473, 52 L.Ed.2d 50 (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
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 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, 118 S.Ct. 488 (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, 123 S.Ct. 1140.