Piscil-Gonzalez v. Sessions
685 F. App'x 31
2d Cir.2017Background
- Petitioner Jose Luis Piscil-Gonzalez, a Mexican national, faced removal proceedings and moved to terminate those proceedings; the IJ denied the motion and the BIA affirmed.
- IJ decision dated May 1, 2014; BIA affirmed on October 28, 2015.
- Petitioner argued removal was a disproportionate penalty for unlawful presence, invoking the Eighth Amendment and Due Process.
- He also contended the IJ deprived him of a meaningful opportunity to be heard.
- The IJ allowed counsel to argue proportionality and received a supporting brief; the IJ asked about other relief, but petitioner declined.
- The Second Circuit reviewed legal and constitutional questions de novo and considered both the IJ and BIA opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal is a punishment subject to Eighth Amendment proportionality review | Piscil-Gonzalez: removal is a severe penalty and disproportionate to unlawful presence | Gov: removal is civil, not punishment; Eighth Amendment inapplicable | Removal is civil; Eighth Amendment does not apply |
| Whether Due Process requires proportionality analysis comparing removal to grounds for removal | Piscil-Gonzalez: Due Process forbids excessive deportation | Gov: Due Process does not require such an assessment for civil removal | Due Process does not require proportionality analysis for removal |
| Whether IJ denied petitioner opportunity to be heard | Piscil-Gonzalez: IJ deprived him of hearing on termination motion | Gov: petitioner had full opportunity; counsel argued and filed a brief; petitioner declined other relief | Claim not exhausted before BIA; in any event, petitioner had opportunity to be heard |
| Whether the petition for review should be granted | Piscil-Gonzalez: seeks relief overturning denial of termination | Gov: BIA and IJ decisions were correct | Petition for review denied |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court considered both IJ and BIA decisions)
- Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) (questions of law and constitutional claims reviewed de novo)
- Santelises v. INS, 491 F.2d 1254 (2d Cir. 1974) (deportation is civil, not punishment)
- INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (recognizing deportation's civil nature)
- State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (Due Process prohibits grossly excessive punitive sanctions)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation is severe but not a criminal sanction)
- Steevenez v. Gonzales, 476 F.3d 114 (2d Cir. 2007) (exhaustion requirement for BIA review)