     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




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