FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
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.
Thompson and Kayatta, Circuit Judges, Barbadoro,
KAYATTA, CIRCUIT JUDGE.
1990, Petitioner Keith Desmond Holder (a lawful permanent
resident) committed kidnapping for ransom, a felony under
California law. Conviction for such a crime rendered him
deportable. See 8 U.S.C. §§
1101(a)(43)(F), (H), 1227(a)(2)(A)(iii). 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212(c)") (repealed 1996), nevertheless would have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. By its express terms, IMMACT took effect
in November 1990,  right before Holder was convicted in
December 1990 and long before his removal proceedings began
in 2014, when Holder was released from prison.
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.
The Board of Immigration Appeals ("BIA") ruled that
the 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.
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.
I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001). Second,
we would need to find that applying IMMACT to Holder, who was
convicted of a disqualifying offense after IMMACT was
enacted, would "produce an impermissible retroactive
effect." Id. at 320.
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 to IMMACT's enactment. Id. at
64. A fortiori, it would apply where the conviction took
place after IMMACT's enactment.
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 the
retroactive application of IIRIRA to bar eligibility for
§ 212(c) relief). Holder argues 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 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))).
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).
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 took place."
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).
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 in
1990. The legal issue posed, however, is identical: 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. We found that it was not. Holder, in turn,
points to nothing about the language or effect of IMMACT that
calls for a contrary conclusion. We therefore cannot find for
Holder without rejecting the reasoning that was central to
our directly analogous holdings in Lawrence and
Cruz-Bucheli. Cf. ...