Immigration Law and the Proportionality Requirement

University of California Irvine Law Review, Forthcoming

48 Pages Posted: 2 Nov 2011 Last revised: 22 Mar 2012

Date Written: October 1, 2011


Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense. The principle is ancient and nearly uncontestable, and its operation is well-established in numerous areas of criminal and civil law, in the United States and abroad. Immigration law, which is formally civil but functionally quasi-criminal, has not previously been subject to review for conformity to constitutional proportionality principles arising under the Eighth Amendment’s Cruel and Unusual Punishment Clause, nor under the Fifth Amendment’s Due Process Clause.

This essay contends that there is no reason in principle or precedent that removal orders should not be subject to constitutional proportionality review. A removal order is sufficiently punitive to trigger proportionality review, and metrics adapted from the criminal sentencing and civil punitive damages context are available to conduct in practice the sort of proportionality review that is well-established in many other areas of law. Moreover, the statutory provision requiring an immigration judge to “decide whether an alien is removable from the United States” at the conclusion of removal proceedings must be understood to incorporate Fifth and Eighth Amendment proportionality requirements, pursuant to the constitutional doubt canon of statutory interpretation.

Proportionality review rarely results in a court displacing a criminal sentence, punitive damages award, or other sanction. Nevertheless, an immigration judge may not impose, and a reviewing court must set aside, a removal order that is grossly disproportionate to the gravity of the underlying misconduct, just as the Fifth and Eighth Amendments require in punitive damages awards, civil fines, land use exactions, and capital and noncapital criminal sentencing.

Suggested Citation

Wishnie, Michael J., Immigration Law and the Proportionality Requirement (October 1, 2011). University of California Irvine Law Review, Forthcoming, Available at SSRN:

Michael J. Wishnie (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4800 (Phone)
203-432-1426 (Fax)

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