Sina Sunday v. Attorney General United States
2016 U.S. App. LEXIS 13878
| 3rd Cir. | 2016Background
- Petitioner Sina Sunday, a Nigerian national, entered the U.S. in 1995, overstayed, and was placed in removal proceedings after criminal convictions (including bail jumping).
- Sunday applied for a U nonimmigrant visa (U visa) with USCIS but was inadmissible (no valid passport; criminal record); USCIS denied a § 1182 waiver.
- Sunday then sought a § 212(d)(3)(A)(ii) waiver of inadmissibility from an Immigration Judge (IJ); the IJ and later the BIA concluded the IJ lacked jurisdiction to grant such a waiver.
- The BIA reasoned DHS (USCIS) has exclusive authority to adjudicate U-visa waiver requests per DHS form/regulatory instructions and that DOJ/ IJ waiver authority under § 212(d)(3) is limited to applicants "seeking admission."
- Sunday also argued removal violated the Eighth and Fifth Amendments as disproportionate punishment; the IJ and BIA rejected this, holding removal is not punishment for constitutional purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an IJ has authority to grant a § 212(d)(3)(A)(ii) waiver for a U‑visa applicant already admitted and in removal proceedings | Sunday: § 212(d)(3) authorizes the Attorney General (and by delegation, an IJ) to grant a waiver even for those already admitted; IJ can grant waiver here | Government/BIA: § 212(d)(3) waivers are limited to aliens "seeking admission" (pre‑entry); DOJ regs limit IJ consideration to renewals only after prior district director (DHS) application | Held: IJ lacked jurisdiction; § 212(d)(3) applies to those seeking admission and DOJ regs restrict IJ authority to post‑denial renewals following a district director application; waiver belongs to DHS/USCIS |
| Whether removal constitutes unconstitutional Eighth Amendment cruel and unusual punishment | Sunday: removal is excessive/disproportionate punishment given conduct and long residence; requires proportionality review like State Farm | Government/BIA: Removal is not punishment; longstanding Supreme Court precedent treats deportation as regulatory/sovereign action, not criminal punishment | Held: Eighth Amendment claim fails; removal is not punishment. Fifth Amendment substantive‑due‑process proportionality claim likewise fails |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (Sup. Ct. 2001) (distinguishes aliens who have effected entry from those who have not in immigration law)
- Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) (§ 212(d)(3) applies to those "seeking admission," not already admitted)
- L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) (held IJ could consider a U‑visa waiver for an unlawfully present entrant; court did not analyze DOJ regulatory scheme)
- I.N.S. v. Lopez‑Mendoza, 468 U.S. 1032 (Sup. Ct. 1984) (deportation is not punitive; it aims to end continuing immigration violations)
- Ingraham v. Wright, 430 U.S. 651 (Sup. Ct. 1977) (Eighth Amendment inapplicable to deportation)
- Fong Yue Ting v. United States, 149 U.S. 698 (Sup. Ct. 1893) (deportation as government refusal to harbor unwanted noncitizens)
- Padilla v. Kentucky, 559 U.S. 356 (Sup. Ct. 2010) (attorney must advise about immigration consequences of guilty plea; characterized removal as having penal effects but not a strict criminal sanction)
- State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (Sup. Ct. 2003) (set three guideposts for reviewing excessiveness of punitive damages)
- Eid v. Thompson, 740 F.3d 118 (3d Cir. 2014) (reaffirmed that removal is not an Eighth Amendment punishment)