JOSE LUIS PISCIL GONZALEZ AKA JOSE LUIS PIZZI GONZALEZ AKA JOES LUIS PISE GONZALEZ v. JEFFERSON SESSIONS III UNITED STATES ATTORNEY GENERAL (2017)

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review be, and hereby is, DENIED.

Petitioner Jose Luis Piscil-Gonzalez, a native and citizen of Mexico, seeks review of an October 28, 2015 decision of the BIA affirming the May 1, 2014 decision of an Immigration Judge (“IJ”) denying his motion to terminate his removal proceedings. In re Jose Luis Piscil-Gonzalez, No. A205 277 374 (B.I.A. Oct. 28, 2015), aff'g No. A205 277 374 (Immig. Ct. Hartford May 1, 2014). We assume the parties' familiarity with the underlying facts, procedural history of the case, and the issues on appeal.

Under the circumstances of this case, we have considered both the IJ's and the BIA's decisions “for the sake of completeness.” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review questions of law and constitutional claims de novo. Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011).

Piscil-Gonzalez argues that his removal constitutes a penalty that is disproportionate to his unlawful presence in violation of the Eighth Amendment and the Due Process Clause. His proportionality argument is meritless: the IJ was not “required to conduct a proportionality analysis to determine whether his removal is excessive when compared to the noncriminal ground for his removal.” Marin-Marin v. Sessions, No. 15-2074, 2017 WL 1130182, at *1 (2d Cir. Mar. 27, 2017). It is well settled “that deportation, being a civil procedure, is not punishment and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not applicable.” Santelises v. INS, 491 F.2d 1254, 1255-56 (2d Cir. 1974); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). Moreover, because removal is not a punishment, the Due Process Clause does not require an assessment of whether removal is excessive when compared to the grounds for removal. Marin-Marin, 2017 WL 1130182, at *2; cf. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17 (2003) (recognizing that the Due Process Clause prohibits “grossly excessive or arbitrary punishments on a tortfeasor” because such punitive damages “serve the same purposes as criminal penalties”). And, while the Supreme Court in Padilla v. Kentucky acknowledged that “deportation is a particularly severe ‘penalty,’ ” it stated that “it is not, in a strict sense, a criminal sanction.” 559 U.S. 356, 365 (2010).

Piscil-Gonzalez further argues that the IJ violated his due process rights by depriving him of an opportunity to be heard, but he failed to exhaust that argument on appeal to the BIA. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). In any event, Piscil-Gonzalez was provided a full opportunity to be heard on his motion to terminate, as counsel argued proportionality before the IJ and filed a brief in support of that argument. The IJ asked Piscil-Gonzalez whether he wanted to apply for other forms of relief from removal, but he declined and he expressly stated his intent to seek termination only.

CONCLUSION

We have reviewed all of the arguments raised by the petitioner on appeal and find them to be without merit. For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk