Simmonds v. Lynch , 649 F. App'x 44 ( 2016 )

14-4472
Simmonds v. Lynch
BIA
Reid, IJ
A034 062 738
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 COURT=S 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 20th day
4 of May, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12 ROGER ANTHONY SIMMONDS, AKA RONALD
13 PARKER, AKA ANTHONY SIMMONDS,
14
15 Petitioner,
16
17 v. 14-4472
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: MARCELLA COBURN, Law Student,
26 Appellate Litigation Clinic, Yale Law
27 School, New Haven, Connecticut (with
28 Benjamin M. Daniels and Tadhg A. J.
29 Dooley, Wiggin and Dana LLP, New Haven,
1 Connecticut, on the brief).
2
3 FOR RESPONDENT: JEREMY M. BYLUND (with Benjamin C.
4 Mizer, Blair T. O’Connor, and Edward C.
5 Durant on the brief), Office of
6 Immigration Litigation, United States
7 Department of Justice, Washington,
8 D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a Board
11 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
12 ADJUDGED, AND DECREED that the petition for review is DENIED.
13 Petitioner Roger Anthony Simmonds, a native and citizen of
14 Jamaica, seeks review of a November 19, 2014 decision of the BIA
15 affirming the July 14, 2014 decision of an Immigration Judge (“IJ”),
16 finding Simmonds removable on the ground that his 1986 murder
17 conviction was an aggravated felony and denying a waiver of
18 removability. In re Roger Anthony Simmonds, No. A034 062 738 (B.I.A.
19 Nov. 19, 2014), aff’g No. A034 062 738 (Immig. Ct. Batavia July 14,
20 2014). We assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 Under the circumstances of this case, we have reviewed the IJ’s
23 decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417
24 F.3d 268, 271 (2d Cir. 2005). Although we lack jurisdiction to
25 review a final order of removal based on a finding that an alien,
26 like Simmonds, is removable by reason of having committed an
27 aggravated felony, we retain jurisdiction to consider questions of
28 law, which we review de novo. 8 U.S.C. § 1252(a)(2)(C), (D);
2
1 Richmond v. Holder, 714 F.3d 725, 728 (2d Cir. 2013). Simmonds
2 raises a question of law over which we have jurisdiction: whether
3 § 7344 of the 1988 Anti-Drug Abuse Act (“ADAA”), expressly stating
4 that the newly-created aggravated felony ground of removal would
5 apply prospectively only, has been repealed by subsequent
6 immigration legislation.
7 Simmonds was admitted to the United States in 1974 as a lawful
8 permanent resident and, in 1986, he was convicted of second-degree
9 murder, in violation of New York law. In 1997, Simmonds was charged
10 as removable on the ground that his murder conviction was an
11 aggravated felony. In 1988, the ADAA created the aggravated felony
12 ground of removal -- including murder -- and § 7344(b) of the ADAA
13 expressly prohibited removal based on convictions occurring before
14 the ADAA was enacted in 1988. This prospective application
15 provision was rendered “obsolete,” however, by § 602(d) of the
16 Immigration Act (“IMMAct”) of 1990, which provides that removal for
17 an aggravated felony based on a pre-1988 conviction is permissible
18 if the notice of deportation proceeding is given after March 1, 1991.
19 See Bell v. Reno, 218 F.3d 86, 94-96 (2d Cir. 2000).
20 Simmonds argues that § 7344(b) was never expressly or impliedly
21 repealed, and that Bell has been called into question by subsequent
22 Supreme Court precedents, Vartelas v. Holder, 132 S. Ct. 1479 (2012),
23 National Association of Home Builders v. Defenders of Wildlife, 551
3
1 U.S. 644 (2007), Branch v. Smith, 538 U.S. 254 (2003), and INS v.
2 St. Cyr, 533 U.S. 289 (2001), which affirmed the strong presumption
3 against implied repeals.
4 Retroactivity of a statute is determined in two steps. First,
5 we determine if congressional intent is clear; if so, it governs.
6 See Landgraf v. USI Film Prods., 511 U.S. 244, 264, 280 (1994); see
7 also St. Cyr, 533 U.S. at 316. If congressional intent is unclear,
8 and if the statute attaches “a new disability” to past wrongful
9 conduct, it may not be applied retrospectively. See Landgraf, 511
10 U.S. at 269-70; see also Vartelas, 132 S. Ct. at 1488, 1491.
11 As explained above, we have answered the first question in the
12 affirmative. Bell held that Congress’s intent was made clear by the
13 effective date provision in IMMAct § 602(d) and that ADAA § 7344(b)
14 did not survive that provision. Bell, 218 F.3d at 96. We have
15 reiterated the holding on two occasions. See Gelman v. Ashcroft,
16 372 F.3d 495, 498-500 (2d Cir. 2004); Kuhali v. Reno, 266 F.3d 93,
17 110-11 (2d Cir. 2001). Further, both St. Cyr and Vartelas
18 specifically cited the aggravated felony provisions § 321(b) and its
19 current iteration § 1101(a)(43), as examples of Congress’s clear
20 intent to apply a statute retroactively. See St. Cyr, 533 U.S. at
21 318-19 (noting Congress’ willingness “to indicate unambiguously its
22 intention to apply specific provisions retroactively. IIRIRA’s
23 amendment of the definition of ‘aggravated felony,’ for example,
4
1 clearly states that it applies with respect to ‘conviction[s]. . .
2 entered before, on, or after’ the statute’s enactment date.
3 § 321(b).” (alterations in original)); Vartelas, 132 S. Ct. at 1487
4 (noting that “[s]everal other provisions of IIRIRA, in contrast to
5 [the one at issue], expressly direct retroactive application, e.g.,
6 8 U.S.C. § 1101(a)(43) (IIRIRA’s amendment of the ‘aggravated
7 felony’ definition applies expressly to ‘conviction[s] ... entered
8 before, on, or after’ the statute’s enactment date)”). These
9 statements support Bell’s conclusion that Congress intended to
10 repeal § 7344(b). Accordingly, we are bound by Bell and its
11 determination that § 602(d) rendered § 7344(b) obsolete. See Union
12 of Needletrades, Indus. and Textile Emps. v. U.S. INS, 336 F.3d 200,
13 210 (2d Cir. 2003) (“[A]s a general rule, one panel of this Court
14 cannot overrule a prior decision of another panel.”).
15 Simmonds also argues that our holdings have been called into
16 question by Home Builders and Branch. He argues that Bell considered
17 only retroactivity and did not consider an implied repeal analysis.
18 However, Home Builders and Branch make clear that the first step to
19 determining whether a statute repeals an earlier iteration remains
20 an inquiry into congressional intent. Home Builders, 551 U.S. at
21 662; Branch, 538 U.S. at 273. And in Bell, we held that Congress’s
22 intent to render § 7344(b) obsolete was clear. Bell, 218 F.3d at
23 94. Accordingly, we are “bound by the decisions of prior panels
5
1 until such time as they are overruled either by an en banc panel of
2 our Court or by the Supreme Court.” United States v. Wilkerson, 361
3 F.3d 717, 732 (2d Cir. 2004).
4 An exception exists “where there has been an intervening Supreme
5 Court decision that casts doubt on our controlling precedent.”
6 Union of Needletrades, 336 F.3d at 210. However, Home Builders and
7 Branch largely rely on long-standing Supreme Court precedents as
8 opposed to creating “new” law. Home Builders, 551 U.S. at 662;
9 Branch, 538 U.S. at 273. Further, we already conducted our own
10 analysis of the varying statutes and legislative history at play --
11 we simply came to a different conclusion than the Seventh and Ninth
12 Circuits’ decisions that Simmonds urges us to adopt. See Kuhali,
13 266 F.3d at 111 (“[W]e have already explained in considerable detail
14 that the specific statute on which petitioner relies was rendered
15 obsolete by other intervening congressional enactments, and we will
16 not repeat that discussion here.” (citing Bell, 218 F.3d at 94-96));
17 see also Zivkovic v. Holder, 724 F.3d 894, 911 (7th Cir. 2013);
18 Ledezma-Galicia v. Holder, 636 F.3d 1059, 1079 (9th Cir. 2010).
19 Accordingly, because Bell remains good law, it is dispositive of
20 Simmonds’s claim.
21
22
23
6
1 For the foregoing reasons, the petition for review is DENIED.
2 As we have completed our review, the stay of removal that the Court
3 previously granted is VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
7