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.

---------------------------------------------------------------- Petition for Review of an Order of the Immigration and Naturalization Service ---------------------------------------------------------------- (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

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

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. § 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

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).

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].

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 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 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 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.

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 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,

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 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. 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

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 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 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 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 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 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

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. 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.”

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 the IIRIRA eliminated the distinction

Section 321 provides in pertinent part: 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 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. 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- 98. Congress is presumed to know the

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) 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. 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 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 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).

We think Section 321(b) is intended to

eliminate the temporal restrictions that

existed for the different kinds of aggravated felonies. In 1990, Congress

amended the definition of “aggravated

felony” to include additional offenses, like

some drug crimes, and expressly provided

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.

This interpretation seems a superior explanation of Section 321 than the explanation given by the government, but is not necessary to our result. 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 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 restrictions on the 1990 and 1994 acts.

We note that, in regulations produced after IIRIRA, the INS appears to accept that the immigration consequences of 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 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). 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

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 already given, we reverse the order of

the INS deporting Lettman.

REVERSED and REMANDED.