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Proportionality Review

Last Updated: 
Mon, Feb 18, 2013

Under the current immigration system, many noncitizens, including lawful permanent residents, face automatic removal as a consequence of a criminal conviction, without any consideration of the circumstances of his or her particular case.  Scholars and advocates have begun arguing that the Constitution requires a proportionality review in immigration proceedings; that is, that the Fifth and Eighth Amendments bar entry of a removal order without any consideration of whether removal would visit an impermissibly disproportionate penalty under the circumstances.



Blackman Hinds v. Holder, No. 13-2129 (1st Cir. amicus brief filed Nov. 29, 2013).  At issue in the case is whether the Constitution and the immigration laws allow the immigration judge to enter a removal order without considering whether removal would be a disproportionate penalty under the circumstances. The Immigration Council’s brief, one of several amicus briefs filed in support of the petitioner, tells the stories of five individuals who either already have or soon will face the extreme penalty of deportation and a permanent reentry bar for minor or nonviolent crimes committed years earlier. The men and women featured in the brief share many attributes: all were lawful permanent residents; all established significant ties to this country; all left (or will leave) behind U.S. citizen family members; all committed nonviolent crimes; all have demonstrated rehabilitation; and none was afforded the opportunity to explain to the immigration judge why forcible removal from the country was unjustified under the circumstances. The brief throws into stark relief the real life human consequences of stripping judges of the ability to consider the totality of the circumstances before entering an order of removal.  Read our blog about this case and the need for proportionality review.


Proportionality in Immigration Law:  Does the Punishment Fit the Crime in Immigration Court, Michael Wishnie (IPC Perspectives April 2012)