Blackman Hinds v. Holder, 790 F.3d 259

Background

Blackman Hinds, a Panama native and longtime U.S. permanent resident, was convicted in 1994 on multiple drug and firearm offenses and sentenced to 25 years, later released in 2012.
Upon release, DHS issued a Notice to Appear charging removability as an alien convicted of an aggravated felony drug offense.
Blackman admitted removability but challenged removal on Fifth Amendment due process grounds, offering personal factors (military service, family, care for a disabled son, fear of harm) in support of relief.
IJ and BIA held they lacked authority to address constitutional challenges to the INA and removal order, leading to petition for review in this court.
The central issue is whether Padilla v. Kentucky’s description of deportation as a 'penalty' signals a due process or Eighth Amendment proportionality requirement for removal, or whether removal remains non-punitive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removal is subject to proportionality review under the Eighth Amendment.	Blackman contends Padilla changes removal to punishable.	Lynch argues removal remains non-punitive constitutionally.	Eighth Amendment remains inapplicable; no proportionality review required.
Whether Padilla's description of deportation as a 'penalty' signaled a constitutional shift on removal.	Blackman relies on Padilla to require case-by-case proportional weighing.	Definitive doctrinal framework remains; Padilla did not recast removal as punishment.	Padilla did not alter long-settled classification of removal as non-punitive.
Whether due process requires proportionality review of immigration consequences.	Blackman argues due process prohibits grossly disproportionate removal.	Removal lacks punitive intent; due process does not require proportionality here.	Due process does not require proportionality review for removal.
Whether constitutional avoidance can require IJ to consider proportionality under 8 U.S.C. § 1229a(c)(1)(A).	Statutory construction should avoid constitutional issues and require proportionality analysis.	No constitutional defect in the statute; avoidance not applicable here.	Constitutional avoidance not triggered; no proportionality review mandated.

Key Cases Cited

Padilla v. Kentucky, 559 U.S. 356 (2010) (removal consequences are immigration penalties in context of counsel's advice)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla rule not retroactive in habeas cases; confirms separation of direct/collateral consequences)
Fong Yue Ting v. United States, 149 U.S. 698 (1893) (removal described as civil, not punitive)
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (removal consistent with civil procedure; non-punitive characterization)
Mahler v. Eby, 264 U.S. 32 (1924) (policy of regulatory confinement tied to welfare; not punishment)
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (removal viewed as civil procedure, not punishment)
Smith v. Doe, 538 U.S. 84 (2003) (civil consequences of convictions may be non-punitive; warning not punitive)
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (factors for determining punitive nature of sanctions)
Hudson v. United States, 522 U.S. 93 (1997) (deterrence/punishment framework; civil measures may have civil purposes)
Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424 (2001) (separation of punitive and civil penalties; due process considerations)
United States v. Bodre, 948 F.2d 28 (1991) (Ex post facto considerations in deportation context)
Galvan v. Press, 347 U.S. 522 (1954) (ex post facto applicability to deportation context)
Ingraham v. Wright, 430 U.S. 651 (1977) (civil vs. criminal distinction in punishment)
Arevalo v. Ashcroft, 344 F.3d 1 (2003) (removal-related constitutional claims and limits of BIA authority)
Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (conviction as trigger for immigration consequences; removal described as consequence)