Holder v. Sessions, 021717 FED1, 15-1864

Court:United States Courts of Appeals, Court of Appeals for the First Circuit
Attorney: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 Att...
Judge Panel:Before Thompson and Kayatta, Circuit Judges, Barbadoro, District Judge.
Opinion Judge:KAYATTA, CIRCUIT JUDGE.
Party Name:KEITH DESMOND HOLDER, Petitioner, v. JEFFERSON B. SESSIONS III, [*] Attorney General of the United States, Respondent.
Case Date:February 17, 2017
Docket Nº:15-1864
 
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KEITH DESMOND HOLDER, Petitioner,

v.

JEFFERSON B. SESSIONS III, [*]Attorney General of the United States, Respondent.

No. 15-1864

United States Court of Appeals, First Circuit

February 17, 2017

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

          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.

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

          KAYATTA, CIRCUIT JUDGE.

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the time Holder committed the crime, § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) ("§ 212(c)") (repealed 1996), nevertheless would have allowed the Attorney General of the United States, if so inclined, to grant Holder a waiver from the full effect of his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

         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. 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.

         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. 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.

         Holder and the government argue over whether Congress "directed with the requisite clarity" that IMMACT be applied retrospectively. Id. at 316. In Barreiro v. ...

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