PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
-------------------------------------------
FILED
No. 97-5283
U.S. COURT OF APPEALS
-------------------------------------------- ELEVENTH CIRCUIT
2/26/99
INS No. A17 599 144 THOMAS K. KAHN
CLERK
ROBERT A. LETTMAN,
Petitioner,
versus
JANET RENO, Attorney General, IMMIGRATION
AND NATURALIZATION SERVICE,
Respondents.
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Petition for Review of an Order of the
Immigration and Naturalization Service
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(February 26, 1999)
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
PER CURIAM:
Petitioner, Robert A. Lettman, appeals
a decision of the Board of Immigration
Appeals (BIA) ordering him deported to
Jamaica. We reverse.
Background
Lettman entered the United States
from Jamaica in 1968. In 1987,
Lettman was convicted of a third-degree
murder in this country. In 1996, the INS
2
arrested Lettman and detained him for
deportation. After a hearing, an
Immigration Judge ordered Lettman
deported. The BIA affirmed the order in
a 1997 per curiam opinion. Lettman
filed a timely appeal.
Discussion
3
Before we can discuss Lettman’s
deportability, we must decide if we have
jurisdiction to determine our
jurisdiction, under the Illegal
Immigration and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-
208, § 309(c)(4)(G), 110 Stat. 3009, 3626-27
(IIRIRA). If we have jurisdiction to
decide jurisdiction, we can decide whether
Lettman is a deportable alien, within the
meaning of the Immigration and
Nationality Act § 241(a)(2)(A)(iii), 8 U.S.C.
4
§ 1227(a)(2)(A)(iii) (West Supp. 1998)
(INA). If Lettman is a deportable alien,
we must dismiss his appeal for lack of
jurisdiction; but if he is not deportable,
we must reverse the BIA’s order. See
IIRIRA, § 309(c)(4)(G), 110 Stat. at 3626-
27.
A. Jurisdiction to Decide Jurisdiction
5
The IIRIRA applies to aliens in
exclusion or deportation proceedings
before 1 April 1997. See id. § 309(c)(1), 110
Stat. at 625. For aliens in deportation
proceedings before 1 April 1997, who
receive a final order of deportation on
or after 31 October 1996, unique
transitional rules of the IIRIRA apply.
See id. § 309(c)(4), 110 Stat. at 3626-27.
See generally Berehe v. INS, 114 F.3d 159,
160-61 (10th Cir. 1997) (explaining effective
date of IIRIRA’s transitional rules).
6
Because Lettman was in deportation
proceedings beginning in 1996, the
IIRIRA applies to him. Lettman is
covered by the IIRIRA’s transitional
rules because the BIA issued a final order
of deportation on 7 July 1997.
Section 309(c)(4)(G) of the IIRIRA’s
transitional rules, provides:
[T]here shall be no appeal
permitted in the case of an alien
who is inadmissible or deportable
by reason of having committed
[an aggravated felony].
7
Lettman was convicted of murder:
an aggravated felony according to INA
§ 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). We
must decide whether Section 309(c)(4)(G)
prevents appeal (thereby depriving us of
jurisdiction) when the BIA decides an
alien is deportable or whether we have
jurisdiction to decide if an alien is
deportable. If the BIA’s determination
is binding on us, then we must dismiss
this appeal. If we can decide whether
Lettman is deportable, then we retain
8
jurisdiction until we conclude he is
deportable.
“When judicial review depends on a
particular fact or legal conclusion, then
a court may determine whether that
condition exists. The doctrine that a
court has jurisdiction to determine
whether it has jurisdiction rests on this
understanding.” Yang v. INS, 109 F.3d 1185,
1192 (7th Cir. 1997) (citing Land v. Dollar,
67 S. Ct. 1009, 1013 (1947)). The Supreme
Court relied on this doctrine in Adamo
9
Wrecking Co. v. United States, 98 S. Ct. 566
(1978).
In Adamo Wrecking, an
environmental statute made it unlawful
to emit pollutants in excess of EPA
“emission standard[s].” See id. at 568.
The statute further provided that review
of the EPA’s decision “in promulgating . . .
any emission standard . . . . shall not be
subject to judicial review . . . .” Id. at 569
(quoting 42 U.S.C. § 1857h-5(b) (1970 ed.,
Supp. V)). The Sixth Circuit reasoned that
10
deciding what constituted an emission
standard was left to the EPA and,
therefore, a defendant could not defend
against prosecution in a federal court by
arguing that the statute at issue was not
an emission standard. See id. at 569. The
Supreme Court reversed, stating that
someone charged with violating the Clean
Air Act “may defend on the ground that
the ‘emission standard’ which he is
charged with having violated was not an
‘emission standard.’ ” Id. at 570.
11
This case is not too different from
Adamo Wrecking. If federal courts had
jurisdiction to decide whether a
regulation is an emission standard,
despite a provision otherwise barring
judicial review, we think we have
jurisdiction to decide if an alien is
deportable, despite a provision otherwise
barring appeals. We are not alone in
this conclusion. See Hall v. INS, (4th Cir.
1999); see also Okoro v. INS, 125 F.3d 920,
925 n.10 (5th Cir. 1997) (statutory
12
provision barring judicial review for
“deportable” aliens allows decision on
whether alien is deportable); Yang, 109 F.3d
1
at 1192 (same). We conclude, therefore,
1
We, like the Okoro and Hall courts, are
not persuaded by Berehe v. INS, 114 F.3d 159,
161 (10th Cir. 1997). Berehe is more similar
to this appeal than Okoro and Yang
because Berehe construed Section
309(c)(4)(G) of the IIRIRA, but Okoro and
Yang applied portions of the
Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996) similar to IIRIRA. The
Berehe court distinguished Yang on two
grounds. First, the court found the
statutory language of the IIRIRA (“there
shall be no appeal permitted”) clearer in
foreclosing review than the language of
13
that we have jurisdiction to decide
whether we have jurisdiction; but our
the statute in Yang (“shall not be subject
to review by any court”). See Berehe, 114
F.3d at 161. Second, Berehe noted the
IIRIRA’s legislative intent to expedite
deportation of criminals. See id. at 162.
We are unconvinced that the
distinctions made by the Berehe court
require a different result than Yang and
Okoro. We do not think the differences
in statutory language are significant;
the legislative intent is not sufficiently
clear on this point. See Hall, (rejecting
Berehe’s reading of Section 309(c)(4)(G)).
Moreover, the Berehe court never
attempted to reconcile its decision with
Adamo Wrecking.
14
jurisdiction disappears if Lettman is deportable
B. Jurisdiction Based on Lettman’s
Deportability
Lettman argues that he is not
deportable because he committed his
aggravated felony in 1987 and that a
crime committed in 1987 cannot be the
basis for deportation. To understand
Lettman’s argument requires an
15
explanation of several acts amending
the INA.
Congress passed the Anti-Drug Abuse
Act of 1988 (ADAA) and defined
“aggravated felony” for the first time.
The definition included murder. See Pub. L.
No. 100-690, §7342, 102 Stat. 4181, 4469-70
(1988) (amending 8 U.S.C. § 1101(a)(43)).
Congress gave no effective date for the
definition. We conclude, as all other
circuit courts examining this question
have concluded, that the definition of
16
aggravated felony applies to all crimes
whether committed before, on, or after
the effective date of the ADAA. See
United States v. Baca-Valenzuela, 118 F.3d
1223, 1228-30 (8th Cir. 1997) (discussing
effective date and summarizing cases);
Scheidemann v. INS, 83 F.3d 1517, 1523-25
(3rd Cir. 1996); see also Matter of A-A-, 20
I&N Dec. 492, 498 (B.I.A. 1992).
Moreover, unless the definition of
“aggravated felony” in the ADAA includes
convictions before the ADAA’s
17
enactment, the six sections of the ADAA
that attach adverse consequences to an
aggravated felony conviction do not
make sense. For example, Section
7345(a)(2) of the ADAA provides
criminal penalties for the illegal
reentry of aliens “whose deportation
was subsequent to a conviction for
commission of an aggravated felony.”
The penalties apply to an “alien who
enters, attempts to enter, or is found
in, the United States on or after the date
18
of the enactment” of the ADAA. Section
7345(b), 102 Stat. at 4471. To use the new
penalties against an alien who arrived
on the date of the ADAA’s enactment, the
aggravated felony conviction would have
had to occur before the ADAA’s
enactment.
Section 7349 of the ADAA is similar
to Section 7345. See 102 Stat. at 4473.
Section 7349(b) bars reentry to the
United States for 10 years following
deportation, for aliens convicted of an
19
aggravated felony. The 10-year bar for
reentry applies to aggravated felons who
seek admission on or after the date of
the ADAA’s enactment. For this bar to
apply to aliens seeking admission on the
date of the ADAA’s enactment, the
aggravated felony conviction must occur
before the enactment of the ADAA.
A number of amendments have been
made to the definition of aggravated
felony, but none have altered the
effective date for cases where the alien
20
2
has been convicted of murder. We
conclude, therefore, that the definition of
aggravated felony applies to murders
committed before, on, or after the
enactment of the ADAA.
As we just recounted, however, the
sections that attach immigration
consequences to aggravated felony
2
Section 321(b) of the IIRIRA, as
explained below, may provide an
alternate ground for deciding that no
temporal restrictions exist on the
definition of “aggravated felony.” We do
not decide that issue today, however.
21
convictions (like Section 7345 and
Section 7349) have their own unique
effective dates. Deportation is such a
consequence. See Scheidemann, 83 F.3d at
1524 (citing ADAA § 7344, governing
deportability, as a “specific adverse
immigration consequence[]”). To deport
an aggravated felon, therefore, the
aggravated felon’s conviction must occur
after the effective date of the
deportation “consequence.”
22
Section 7344 of the ADAA allows
deportation of aggravated felons. See
102 Stat. at 4470-71. This deportation
ground applies only to an aggravated felon
“convicted, on or after the date of the enactment” of the
ADAA. See id.; Matter of A-A-, 20 I&N Dec. at 497
(interpreting Section 7344 in this manner to show that “where
Congress desired to limit the reach of a disabling provision
in the [ADAA] to certain aggravated felons -- such as those
convicted on or after a certain date -- it expressly did so”).
The INS insists that Section 321 of
3
the IIRIRA eliminated the distinction
3
Section 321 provides in pertinent
part:
23
Sec. 321 Amended Definition of
Aggravated Felony.
(a) IN GENERAL.--Section 101(a)(43) . . . is
amended--
(1) in subparagraph (A), by inserting “,
rape, or sexual abuse of a minor” after
“murder”;
. . . .
(b) EFFECTIVE DATE OF DEFINITION.--
Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is
amended by adding at the end the
following sentence: “Notwithstanding
any other provision of law (including
effective date), the term applies
regardless of whether the conviction was
entered before, on, or after the date of
enactment of this paragraph.”.
(c)EFFECTIVE DATE.--The amendments
made by this section shall apply to
actions taken on or after the date of the
enactment of this Act, regardless of
when the conviction occurred, and shall
24
between temporal restrictions on the
definition of “aggravated felony” and
temporal restrictions on related
immigration consequences. We think the
INS is mistaken.
Before the IIRIRA (as discussed above),
it is indisputable that a distinction
existed between the effective date of
immigration “consequences” like
apply under section 276(b) of the
Immigration and Nationality Act only
to violations of section 276(a) of such
Act occurring on or after such date.
25
deportation and the effective date of
crimes considered an “aggravated
felony.” See Scheidemann, 83 F.3d at 1523-
24; Matter of A-A-, 20 I&N Dec. at 495-
4
98. Congress is presumed to know the
4
The INS’s reliance on Lopez-Amaro v.
INS, 25 F.3d 986 (11th Cir. 1994), to prove
otherwise is misplaced. Lopez-Amaro
concluded that a conviction for a
firearms offense before 1988 allowed
deportation. See id. at 988. But, Lopez-
Amaro was not faced with separate
statutory provisions for the definition
of a crime and the crime’s immigration
consequences. In addition, Lopez-Amaro
relied, in significant part, on Section
602(c) of the Immigration Act of 1990
(IMMACT). See id. Section 602(c)
26
current law of the area in which they
are legislating. See, e.g., Cannon v.
University of Chicago, 441 U.S. 677, 696-98
(1979). So, we can presume that Congress
was aware of the difference between the
effective dates of “consequences” and the
specifically amended the effective date of
the deportation consequence in Section
241(a)(2)(C) of the INA associated with a
firearms conviction. See 104 Stat. at
5077. As we have said, no such
amendment exists in this case to the
effective date of the deportation
consequence associated with an
aggravated felony. This distinction is
sufficient to make Lopez-Amaro
unpersuasive in this case.
27
effective dates of crimes constituting
an aggravated felony. Section 321,
however, falls within the definition
section of the IIRIRA. If Congress
wanted the immigration consequences
fully retroactive, we believe that
Congress would make those changes in the
portion of the statute addressing the
immigration consequences. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 432 (1987)
(noting that, where Congress includes
particular language in one section of
28
statute but omits it from another
section, it is generally presumed that
Congress acted intentionally and
purposely in omission or inclusion).
When Congress has altered the effective
date of a consequence, they have done so
in the portion of the statute dealing
with the consequence. See Miscellaneous
and Technical Immigration and
Naturalization Amendments of 1991, Pub.
L. No. 102-232, § 306(a)(13), 105 Stat. 1733,
1752 (1991) (MTINA) (amending the
29
Immigration Act of 1990, Pub. L. No. 101-
649, § 514(b)(1), 104 Stat. 4978, 5053 (1990)
(IMMACT) to bar asylum for aliens
convicted of aggravated felony before,
on, or after enactment of the MTINA
rather than only those aggravated felons
convicted on or after enactment of
IMMACT).
30
5
We think Section 321(b) is intended to
eliminate the temporal restrictions that
existed for the different kinds of
6
aggravated felonies. In 1990, Congress
amended the definition of “aggravated
felony” to include additional offenses, like
some drug crimes, and expressly provided
5
Our discussion concerns Section 321(b),
as we think Section 321(c) is no more
than an effective date for the other
changes made by Section 321.
6
This interpretation seems a superior
explanation of Section 321 than the
explanation given by the government,
but is not necessary to our result.
31
that these new crimes only constituted
aggravated felonies for convictions
occurring after the amendment’s
enactment. See Immigration Act of
1990, Pub. L. No. 101-649, § 501(b), 104 Stat.
4978, 5048 (1990). Other crimes were
added by a later amendment, and these
crimes also applied prospectively. See
Immigration and Nationality Technical
Corrections Act of 1994, Pub. L. No. 103-416, §
222(b), 108 Stat. 4305, 4322 (1994).
After the 1994 statute, the crimes
32
generally constituting an aggravated
felony in the ADAA still contained no
temporal restrictions, but many of the
crimes added to the definitions by the
1990 and 1994 acts applied only if the
conviction occurred after the
enactment of the pertinent act. So, we
think Section 321 can be best understood
as eliminating the temporal
7
restrictions on the 1990 and 1994 acts.
7
We note that, in regulations produced
after IIRIRA, the INS appears to accept
that the immigration consequences of
33
the ADAA with an explicit effective date
were unaffected by the IIRIRA. Section
7343(c) of the ADAA governing
voluntary departure of aggravated
felons -- similar to Section 7344(b) of the
ADAA governing deportability of
aggravated felons -- sets out a
“consequence” of being an alien convicted
of an aggravated felony that is purely
prospective: aliens convicted of an
aggravated felony are ineligible for
voluntary departure if the conviction
occurred “on or after the date of the
enactment of this Act.” The current
regulations on voluntary departure
contain this provision: “[A]n alien who
is deportable because of a conviction on
or after [enactment of the ADAA], for
an aggravated felony as defined in
section 101(a)(43) of the [INA] shall not be
eligible for voluntary departure . . . .”
Suspension of Deportation and
34
The only evidence suggesting that
Section 321 was intended to eliminate
the temporal restrictions associated
with the consequences of being an
aggravated felon is the apparent
congressional desire to expedite
deportation of criminal aliens. The
Senate Judiciary Report preceding the
IIRIRA expressed a desire to “expedite[]
Voluntary Departure, 8 C.F.R. § 240.56
(1998). The pertinent provision was
issued in 1997: after the IIRIRA. See 62
Fed. Reg. 10377 (1997).
35
the removal of excludable and deportable
aliens, especially criminal aliens.” S. Rep.
No. 104-249, at 3 (1996). This statement
falls short of expressing a desire that all
criminal aliens be removed regardless of
their date of conviction. Also, we note
the section-by-section analysis of the
report: “the amended definition of
‘aggravated felony’ applies to offenses
that occurred before, on, or after the
date of enactment.” Id. at 40. This
36
statement limits the pertinent change
to the “definition” of “aggravated felony.”
Lettman was convicted of murder in
1987. Lettman, therefore, is an
aggravated felon under the INA. But,
Lettman’s 1987 conviction was before
the effective date of the provision
allowing for deportation of illegal aliens.
The INS may not, therefore, deport
Lettman. Because Lettman is not
deportable, we retain jurisdiction over
his appeal. For the reasons we have
37
already given, we reverse the order of
the INS deporting Lettman.
REVERSED and REMANDED.
38