Simmonds v. Lynch

SUMMARY ORDER Petitioner Roger Anthony Simmonds, a native and citizen of Jamaica, seeks review of a November 19, 2014 decision of the BIA affirming the July 14, 2014 decision of an Immigration Judge (“IJ”), finding Simmonds removable on the ground that his 1986 murder conviction was an aggravated felony and denying a waiver of removability. In re Roger Anthony Simmonds, No. A034 062 738 (B.I.A. Nov. 19, 2014), aff'g No. A034 062 738 (Immig. Ct. Batavia July *45 14, 2014). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005), Although we lack jurisdiction to review a final order of removal based on a finding that an alien, like Simmonds, is removable by reason of having committed an aggravated felony, we retain jurisdiction to consider questions of law, which we review de novo. 8 U.S.C. § 1252(a)(2)(C), (D); Richmond v. Holder, 714 F.3d 725, 728 (2d Cir.2013). Simmonds raises a question of law over which we have jurisdiction: whether § 7344 of the 1988 Anti-Drug Abuse Act (“ADAA”), expressly stating that the newly-created aggravated felony ground of removal would apply prospectively only, has been repealed by subsequent immigration legislation. Simmonds was admitted to the United States in 1974 as a lawful permanent resident and, in 1986, he was convicted of second-degree murder, in violation of New York law. In 1997, Simmonds was charged as removable on the ground that his murder conviction was an aggravated felony. In 1988, the ADAA created the aggravated felony ground of removal — including murder — and § 7344(b) of the ADAA expressly prohibited removal based on convictions occurring before the ADAA was enacted in 1988. This prospective application provision was rendered “obsolete,” however, by § 602(d) of the Immigration Act (“IMMAct”) of 1990, which provides that removal for an aggravated felony based on a pre-1988 conviction is permissible if the notice of deportation proceeding is given after March 1, 1991. See Bell v. Reno, 218 F.3d 86, 94-96 (2d Cir.2000). Simmonds argues that § 7344(b) was never expressly or impliedly repealed, and that Bell has been called into question by subsequent Supreme Court precedents, Vartelas v. Holder, — U.S. -, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct 2518, 168 L.Ed.2d 467 (2007), Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003), and INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which affirmed the strong presumption against implied repeals. Retroactivity of a statute is determined in two steps. First, we determine if congressional intent is clear; if so, it governs. See Landgraf v. USI Film Prods., 511 U.S. 244, 264, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see also St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. If congressional intent is unclear, and if the statute attaches “a new disability” to past wrongful conduct, it may not be applied retrospectively. See Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483; see also Vartelas, 132 S.Ct. at 1488, 1491. As explained above, we have answered the first question in the affirmative. Bell held that Congress’s intent was made clear by the effective date provision in IMMAct § 602(d) and that ADAA § 7344(b) did not survive that provision. Bell, 218 F.3d at 96, We have reiterated the holding on two occasions. See Gelman v. Ashcroft, 372 F.3d 495, 498-500 (2d Cir.2004); Kuhali v. Reno, 266 F.3d 93, 110-11 (2d Cir.2001). Further, both St. Cyr and Varíelas specifically cited the aggravated felony provisions § 321(b) and its current iteration § 1101(a)(43), as examples of Congress’s clear intent to apply a statute retroactively. See St. Cyr, 533 U.S. at 318-19, 121 S.Ct. 2271 (noting Congress’ willingness “to indicate unambiguously its intention to apply' specific provisions retroactively. IIRIRA’s amendment of the definition of ‘aggravated felony,’ for example, clearly states that it applies with respect to ‘con *46 viction[s] ... entered before, on, or after’ the statute’s enactment date. § 321(b).” (alterations in original)); Vartelas, 132 S.Ct. at 1487 (noting that “[s]everal other provisions of IIRIRA, in contrast to [the one at issue], expressly direct retroactive application, e.g., 8 U.S.C. § 1101(a)(43) (IIRIRA’s amendment of the ‘aggravated felony definition applies expressly to ‘conviction[s] ... entered before, on, or after’ the statute’s enactment date)”). These statements support Bell’s conclusion that Congress intended to repeal § 7344(b). Accordingly, we are bound by Bell and its determination that § 602(d) rendered § 7344(b) obsolete. See Union of Needletrades, Indus. and Textile Emps. v. U.S. INS, 336 F.3d 200, 210 (2d Cir.2003) (“[A]s a general rule, one panel of this Court cannot overrule a prior decision of another panel.”). Simmonds also argues that our holdings have been called into question by Home Builders and Branch. He argues that Bell considered only retroactivity and did not consider an implied repeal analysis. However, Home Builders and Branch make clear that the first step to determining whether a statute repeals an earlier iteration remains an inquiry into congressional intent. Home Builders, 551 U.S. at 662, 127 S.Ct. 2518; Branch, 538 U.S. at 273, 123 S.Ct. 1429. And in Bell, we held that Congress’s intent to render § 7344(b) obsolete was clear. Bell, 218 F.3d at 94. Accordingly, we are “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.” United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004). An exception exists “where there has been an intervening Supreme Court decision that casts doubt on our controlling precedent.” Union of Needletrades, 336 F.3d at 210. However, Home Builders and Branch largely rely on long-standing Supreme Court precedents as opposed to creating “new” law. Home Builders, 551 U.S. at 662, 127 S.Ct. 2518; Branch, 538 U.S. at 273, 123 S.Ct. 1429. Further, we already conducted our own analysis of the varying statutes and legislative history at play — we simply came to a different conclusion than the Seventh and Ninth Circuits’ decisions that Simmonds urges us to adopt. See Kuhali, 266 F.3d at 111 (“[W]e have already explained in considerable detail that the specific statute on which petitioner relies was rendered obsolete by other intervening congressional enactments, and we will not repeat that discussion here.” (citing Bell, 218 F.3d at 94-96)); see also Zivkovic v. Holder, 724 F.3d 894, 911 (7th Cir.2013); Ledezma-Galicia v. Holder, 636 F.3d 1059, 1079 (9th Cir.2010). Accordingly, because Bell remains good law, it is dispositive of Simmonds’s claim. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the stay of removal that the Court previously granted is VACATED.