In a novel approach, a petitioner appealed his removal order on the ground that it would violate his Eighth Amendment rights, as a punishment disproportionate to his unlawful acts.  Blackman had been convicted of a drug trafficking aggravated felony, and he sought no relief from removal, but instead submitted evidence of the severe hardship his removal would cause.  Blackman indicated that he had served honorably in the United States Marine Corps for four years -- enlisting only a few months after his arrival in the United States at age twenty. He and his United States-citizen wife now have four children, and Blackman asserted that his presence in the United States is necessary to help care for their son, who was seriously injured in a 1998 car accident. Finally, though he did not apply for asylum or related humanitarian benefits, Blackman expressed fear that he would be harmed or killed by gang members if removed to Panama.

Blackman simply argued that his removal would be unconstitutional.  Specifically, in light of the Supreme Court's decision in Padilla v. Kentucky, which Blackman argued classified removal as a penalty, he argued that the Constitution mandates that an IJ, or a federal court, assess whether the sting of deportation and its accompanying reentry bar is a proportionate sanction for his underlying criminal conviction.  If it is not, he must be permitted, under the Eighth and Fifth Amendments, to remain in the United States, despite his conviction for a deportable offense.

The First Circuit began its analysis with a reminder that historically, the federal courts have considered removal to be a non-punitive, civil consequence, and thus, the Eighth Amendment is inapplicable.  The Supreme Court's decision in Padilla did not alter that.  "[T]here is a critical distinction between recognizing that a particular consequence might follow -- nearly automatically -- from a criminal conviction and classifying that consequence as a sanction intended to punish a noncitizen for that criminal activity."  For the same reason, the Fifth Amendment does not apply to Blackman's case.

The full text of Blackman Hinds v. Lynch can be found here: