16‐2376 Patel v. Sessions BIA Straus, IJ A206 066 098 A206 057 302

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of February, two thousand eighteen.

PRESENT: RALPH K. WINTER, GERALD E. LYNCH, DENNY CHIN, Circuit Judges.

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RASHMIKABAHEN PARESHKUMAR PATEL, PARESHKUMAR PRAVINBHAI PATEL,

Petitioners,

v. 16‐2376‐ag

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent.

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FOR PETITIONERS: James A. Welcome, Law Offices of James A. Welcome, Waterbury, CT.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General, Civil Division, Jeffrey R. Leist, Senior Litigation Counsel, Brett F. Kinney, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a decision

of the Board of Immigration Appeals (the ʺBIAʺ), IT IS ORDERED, ADJUDGED, AND

DECREED that the petition for review is hereby DENIED.

Petitioners Rashmikabahen Pareshkumar Patel and Pareshkumar

Pravinbhai Patel, natives and citizens of India, seek review of a June 30, 2016, decision

of the BIA, affirming the September 23, 2014, decision of an Immigration Judge (ʺIJʺ)

denying their motion to terminate removal proceedings and ordering their removal. In

re Rashmikabahen Pareshkumar Patel, Pareshkumar Pravinbhai Patel, Nos. A206 066 098,

A206 057 302 (B.I.A. June 30, 2016), aff’g Nos. A206 066 098, A206 057 302 (Immig. Ct.

Hartford Oct. 23, 2014). We assume the partiesʹ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we consider both the IJ’s and the

BIAʹs decisions ʺfor the sake of completeness.ʺ Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). We uphold the IJʹs or BIAʹs factual findings if they are

supported by substantial evidence in the record. See Xue Hong Yang v. U.S. Depʹt of

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Justice,

(2d Cir. 2005). We review questions of law and constitutional

claims de novo. See Richmond v. Holder,

(2d Cir. 2013); Luna v. Holder,

(2d Cir. 2011).

Petitioners present two arguments: (1) their removal violates the Eighth

Amendment because it is a disproportionate punishment for their immigration

violation of unlawful presence, and (2) the IJ violated the Due Process Clause by

ordering their removal without an opportunity to be heard. Both arguments fail.

Petitionersʹ proportionality argument is foreclosed by our decision in

Marin‐Marin v. Sessions,

(2d Cir. 2017). In that case, we held that ʺ[i]t is

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.ʺ

at 194 (quoting Santelises v. INS,

, 1255–56 (2d Cir. 1974)). Thus, because

the Eighth Amendment does not apply to deportation, this claim fails.

Petitionersʹ due process argument is similarly unavailing. Although

petitioners argue that the IJ violated their due process rights by depriving them of an

opportunity to be heard, they failed to exhaust this argument on appeal to the BIA. See

Steevenez v. Gonzales,

(2d Cir. 2007).

Even if they had exhausted this argument, their claim fails on the merits.

To prevail on a due process claim, petitioners must show (1) that they were ʺdenied a

full and fair opportunity to present [their] claims or that the IJ or BIA otherwise

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deprived [them] of fundamental fairness,ʺ Burger v. Gonzales,

(2d Cir.

2007) (internal quotation marks and citation omitted), and (2) ʺcognizable prejudice

fairly attributable to the challenged process,ʺ Garcia‐Villeda v. Mukasey,

(2d Cir. 2008); see also Marin‐Marin v. Sessions,

(2d Cir. 2017) (holding

that in immigration context, ʺthe Due Process clause requires only that an alien receive

notice and a fair hearing where the [Government] must prove by clear, unequivocal,

and convincing evidence that an alien is subject to deportationʺ) (alteration in original)

(quoting Cervantes‐Ascencio v. INS,

(2d Cir. 2003)).

Here, petitioners were provided a full opportunity to be heard on their

motion to terminate, as counsel argued proportionality before the IJ and filed a brief in

support of that argument. When the IJ asked them whether they wanted to apply for

other forms of relief from removal, they declined and expressly stated their intent to

seek termination only. Therefore, petitionersʹ due process claim fails as well.

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk

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