Holder v. Lynch

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and Paul J. Barbadoro,* U.S. District Judge. Published. *Of the District of New Hampshire, sitting by designation. [15-1864]

Case: 15-1864

Document: 00117119535

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Date Filed: 02/17/2017

Entry ID: 6070601

United States Court of Appeals
For the First Circuit
No. 15-1864
KEITH DESMOND HOLDER,
Petitioner,
v.
JEFFERSON B. SESSIONS III,*
Attorney General of the United States,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before
Thompson and Kayatta, Circuit Judges,
Barbadoro,** District Judge.

Randy Olen for petitioner.
Christina Greer, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Civil Division, U.S. Department
of Justice, Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of Justice, and Wendy
Benner-León, Trial Attorney, Office of Immigration Litigation,
U.S. Department of Justice, were on brief, for respondent.

February 17, 2017

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Jefferson B. Sessions III has been substituted for Loretta E. Lynch
as Attorney General.
**

Of the District of New Hampshire, sitting by designation.

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KAYATTA, Circuit Judge.

Date Filed: 02/17/2017

Entry ID: 6070601

In May 1990, Petitioner Keith

Desmond Holder (a lawful permanent resident) committed kidnapping
for ransom, a felony under California law.
crime rendered him deportable.
(H), 1227(a)(2)(A)(iii).

Conviction for such a

See 8 U.S.C. §§ 1101(a)(43)(F),

At the time Holder committed the crime,

§ 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
("§ 212(c)") (repealed 1996), nevertheless would have allowed the
Attorney General of the United States, if so inclined, to grant
Holder a waiver from the full effect of his criminal conduct under
the immigration laws.

But six months after Holder committed the

crime, Congress enacted the Immigration Act of 1990 ("IMMACT"),
divesting the Attorney General of the discretion to grant such a
waiver to any person who served five or more years of incarceration
for an aggravated felony.1

By its express terms, IMMACT took

effect in November 1990,2 right before Holder was convicted in
December 1990 and long before his removal proceedings began in
2014, when Holder was released from prison.

1

Section 511(a) of IMMACT eliminated eligibility for § 212(c)
relief for any "alien who has been convicted of an aggravated
felony and has served a term of imprisonment of at least 5 years."
IMMACT, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978 (1990)
(codified at 8 U.S.C. § 1182(c) (1994) (repealed 1996)).
2

See IMMACT, Pub. L. No. 101–649, § 511(b), 104 Stat. 4978
(Nov. 29, 1990) ("The amendment made by subsection (a) shall apply
to admissions occurring after the date of enactment of this Act.").

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The issue thus posed when Holder ventured to seek relief
under § 212(c) was whether IMMACT's curtailment of the Attorney
General's discretion under that provision applied to Holder given
that his criminal conduct predated IMMACT's enactment, while his
conviction postdated it.
ruled

that

the

The Board of Immigration Appeals ("BIA")

post-enactment

date

of

conviction

controlled,

rendering § 212(c) relief unavailable to Holder. For the following
reasons, we find that our controlling precedent is in accord.
I.
To sustain Holder's position that the BIA has applied
IMMACT to him in an improperly retroactive manner, we would need
to make two findings.

First, we would need to find that IMMACT

itself did not contain a "clear indication from Congress that it
intended" the law to apply retrospectively.
533 U.S. 289, 316 (2001).

I.N.S. v. St. Cyr,

Second, we would need to find that

applying IMMACT to Holder, who was convicted of a disqualifying
offense

after

IMMACT

was

enacted,

impermissible retroactive effect."

would

"produce[]

an

Id. at 320.

Holder and the government argue over whether Congress
"directed with the requisite clarity" that IMMACT be applied
retrospectively.

Id. at 316.

In Barreiro v. I.N.S., 989 F.2d 62

(1st Cir. 1993), we found that Congress did "clearly" intend
IMMACT's narrowing of § 212(c) to apply to a petitioner seeking
waiver under § 212(c) where the petitioner had been convicted prior

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to IMMACT's enactment.

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Date Filed: 02/17/2017

Id. at 64.

Entry ID: 6070601

A fortiori, it would apply

where the conviction took place after IMMACT's enactment.
Since Barreiro, though, the Supreme Court has written at
length on the subject of statutory retroactivity in general, see,
e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 265–73 (1994),
and

specifically

on

the

potential

retroactivity

of

other

immigration statutes that have narrowed or repealed § 212(c), see
St. Cyr, 533 U.S. at 314–15 (addressing the retroactive application
of a provision of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA") to bar eligibility for
§ 212(c) relief); Vartelas v. Holder, 566 U.S. 257, 260–61 (2012)
(considering
eligibility

the
for

retroactive
§

212(c)

application

relief).

of

Holder

IIRIRA
argues

to

bar

that

the

cumulative thrust of those opinions, each rejecting claims that
Congress adequately decreed retrospective application of changes
to § 212(c), undermines Barreiro's admittedly cryptic analysis and
permits us to depart from our general rule of stare decisis.

See

United States v. Carter, 752 F.3d 8, 18 n.11 (1st Cir. 2014) ("[W]e
may

depart

from

an

existing

panel

decision

when

subsequent

controlling authority--such as a Supreme Court opinion, First
Circuit en banc opinion, or a new statute--undermines our earlier
opinion."); United States v. Rodriguez-Pacheco, 475 F.3d 434, 442
(1st Cir. 2007) (recognizing the "limited exception that permits
one panel to overrule another in 'those relatively rare instances

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in which authority that postdates the original decision, although
not directly controlling, nevertheless offers a sound reason for
believing that the former panel, in light of fresh developments,
would change its collective mind'" (quoting Williams v. Ashland
Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995))).
Ultimately, we need not agree or disagree with that
contention. Even if we were to find that IMMACT contained no clear
indication that it was to be applied retrospectively, Holder's
argument would still fail at the second step of the retroactivity
analysis.

This is so because our precedent firmly holds that a

statute excluding a conviction from the scope of potential § 212(c)
relief

can

properly

be

applied,

without

express

or

clear

congressional direction, to a conviction that postdated the change
in the law.

See Lawrence v. Gonzales, 446 F.3d 221, 224–25 (1st

Cir. 2006); Cruz-Bucheli v. Gonzales, 463 F.3d 105, 108 (1st Cir.
2006) (per curiam).
In Lawrence, the petitioner committed larceny prior to
the 1996 repeal of § 212(c) effected by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA") and IIRIRA, but his
controlling conviction, by guilty plea, was entered after the
repeal.

Relying on St. Cyr, we ruled that the law applied as it

stood at the time of his conviction.

In so doing, we rejected his

argument that "the availability of § 212(c) relief should be
determined based upon when the conduct underlying his conviction

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Lawrence, 446 F.3d at 225 (emphasis omitted).

We

construed St. Cyr similarly in Cruz-Bucheli, finding that "the
date of criminal conduct is irrelevant" in determining whether
AEDPA's change to § 212(c) could properly be applied.

Cruz-

Bucheli, 463 F.3d at 108 (quoting Lawrence, 446 F.3d at 225).
The particular statutory changes to § 212(c) at issue in
Lawrence and Cruz-Bucheli were not the same as the change at issue
here--in those cases, the petitioners were deemed to have lost
access to § 212(c) relief when Congress passed IIRIRA and/or AEDPA,
whereas here, Holder was deemed to have lost access when Congress
passed

IMMACT

identical:

in

1990.

The

legal

issue

posed,

however,

is

assuming Congress did not clearly direct that those

statutes applied retrospectively, we considered whether applying
them to deny access to § 212(c) relief to a person convicted after
the relevant statute's enactment was improperly retroactive when
the underlying criminal conduct occurred before enactment.
found that it was not.
the

language

conclusion.

or

effect

We

Holder, in turn, points to nothing about
of

IMMACT

that

calls

for

a

contrary

We therefore cannot find for Holder without rejecting

the reasoning that was central to our directly analogous holdings
in Lawrence and Cruz-Bucheli.

Cf. Cruz-Bucheli, 463 F.3d at 108

n.6 (explaining that "[a]lthough St. Cyr dealt with the retroactive
application of IIRIRA, . . . its logic is equally applicable to

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similarly configured cases where AEDPA would bar a waiver of
removal under § 212(c)").
II.
There nevertheless does remain one loose end.

In 2012,

long after we decided Lawrence and Cruz-Bucheli, the Supreme Court
decided Vartelas.

The subject of Vartelas was a provision of

IIRIRA that turned certain convictions into triggers for removal
proceedings when a lawful permanent resident returned from a trip
abroad.

Vartelas, 566 U.S. at 260-61.

The Court held that "the

legal regime in force at the time of [the petitioner's] conviction"
controlled whether the new IIRIRA provision applied:
conviction post-dated IIRIRA, the new law applied.
did not.

if the

Otherwise, it

Id. at 261.
This focus on the date of conviction as defining the

line

between

retrospective

and

non-retrospective

application

neatly fits with our holdings in Lawrence and Cruz-Bucheli. Holder
nevertheless points to several references in Vartelas to relevant
past "events" as including the "offense, guilty plea, conviction,
and

punishment."

Id.

at

266.

The

Court,

in

turn,

quoted

Landgraf's broad framing of the inquiry at step two as "whether
the

new

provision

attaches

new

legal

completed before its enactment."
511 U.S. at 269–70).

consequences

to

events

Id. at 273 (quoting Landgraf,

Reasons Holder, we should read Vartelas as

logically signaling that it is actually the date of the offense

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conduct,

not

the

date

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of

Date Filed: 02/17/2017

conviction,

that

Entry ID: 6070601

distinguishes

retrospective from non-retrospective application.
The Second Circuit recently rejected exactly this same
reading of Vartelas in Centurion v. Holder, 755 F.3d 115, 123–24
(2d Cir. 2014).

It observed that in Vartelas, the Supreme Court

did not have occasion to consider whether a preconviction statutory
change could apply where the conduct giving rise to that conviction
predated the statutory change.

Id. at 123.

In expressing its

actual holding, the Court nevertheless used language indicating
that the laws that applied to the petitioner were those in effect
at the time the petitioner was convicted.
261.

Vartelas, 566 U.S. at

And while the opinion does include references to "past

wrongful conduct," Vartelas, 566 U.S. at 269, those references "do
not necessarily conflict with a focus on the date of conviction
because this language choice may be attributable to the statutory
wording considered in Vartelas ('committed an offense')" rather
than the wording of the statute at issue in Centurion (and here)
referring

to

aliens

"convicted

Centurion, 755 F.3d at 123–24.

of"

aggravated

felonies.

In sum, the best that can be said

of Vartelas for Holder is that it has mixed language and does not
reject his position that the date of the conduct should control.
We therefore agree with the Second Circuit that Vartelas
does not provide a sufficiently clear indication that the Supreme
Court would go beyond its conviction-centric reasoning so as to

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require us to disregard our own precedent identifying the date of
conviction

as

the

boundary

between

non-retrospective

and

retrospective application of a change to § 212(c).
Conclusion
Finding no proper basis upon which to disregard the force
and logic of our holdings in Lawrence and Cruz-Bucheli, we dismiss
Holder's petition for review.

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