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 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.
“A lawful permanent resident cannot be removed and barred from re-entry when those penalties would be disproportionate under the circumstances of the individual case,” the brief said.
Finally, he argued that the relevant U.S. Code governing immigration removal must be read to 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.
Sheri Qualters can be contacted at email@example.com.