The procedural rights available to non-citizens in deportation proceedings should be determined through a combination of “the hard floor constitutional rights model, used in criminal proceedings. BMW vs. Gore as well as Padilla vs. Kentucky 559 U.S. 356 (2010) this case mark a sharp departure from the Court’s century long characterization of immigration consequences as “purely civil” both cases opened the door for the extension of a constitutional protection traditionally reserved for criminal realm into civil proceedings. In BMW vs Gore 517 U.S.559 (1996) United States Supreme Court limited punitive damage under the due process clause of the 14th Amendment. The Court found that the excessive punitive damages must be reasonably necessary to vindicate the State’s legitimate interest in punishment and deterrence. In making this determination the Court applied the degree of reprehensibility of the accused conduct and the penalties that could be imposed for comparable misconduct. Punishment, regardless of whether it is civil or criminal, is subject to various constitutional restraints.
In contrast to characterization of immigration deportations, the Court in Padilla alluded that deportation is the penalty for a crime, then as such the criminal law norm of proportionality and penalties, rooted in the 8th and 14th Amendment, should equally apply.
The fact that the results from a criminal conviction are an integral part that may be imposed on immigrant’s defendants who plead guilty to specified crimes, it should be argued that if deportation is part of a criminal penalty, other protections afforded criminal defendants should extend to removal proceedings, at least where these results are directly from convictions. Moreover, if deportation is the penalty for a crime, as the Court said in Padilla, constitutional protections should apply to those immigrants facing deportation as consequences for crimes committed.
Deportations triggered solely by a criminal conviction is a part of the penalty for the underlying criminal behavior, demand the Court to explore the question of what other constitutional limits that can be placed on the imposition of that punishment considering the principle grounded in the 8th Amendment which a penalty should be proportionate to the crime it punishes. The appropriateness of any given punishment is assessed in large part by how fitting it is to the crime committed, and Eighth amendment governs the boundaries of permissible punishment by forbidding punishment that is cruel and unusual.
Due to lack of proportionality principle from our current law of deportation for crimes, aggravated felony category imposes deportation equally for, among other offenses, murder, petty theft and failure to appear in court. Similarly, the sanction is the same regardless of an individual’s history or connections in the community and applies equally to an undocumented individual who entered the country yesterday without permission and to a long-term lawful permanent resident who may have deep roots in the community such as dependent U.S. Citizen family members. Thus, an immigrant convicted of theft at Vons and a rapist results are the same …deportation!
Much of the sense of injustice that results from the operation of our current criminal deportation law comes from recognition of the blatant disproportion between the sanction of automatic deportation and the circumstances under which it is imposed.
In addition to the centrality of proportion to our sense of just punishment, Eight Amendment jurisprudence is an attractive place to begin exploring amendment reach, because the jurisprudence has already been extended to prohibit certain-non-criminal sanctions where these were found to be penal in nature, even if not in name or explicit intent.
In Sum the under the Eight Amendment the court should step in, and review the proportionality of removal as a criminal sanction. This could take the form of the review of individual cases in which deportation may be disproportionate to the offense. It might also take form of consideration of categorical challenges to certain aspects of the criminal removal scheme at large, such as the “aggravated felony” provisions and their inclusion of manifestly minor offenses.
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