168 F.3d 463 (11th Cir. 1999), 97-5283, Lettman v. Reno

Docket Nº:97-5283.
Citation:168 F.3d 463
Party Name:Robert A. LETTMAN, Petitioner, v. Janet RENO, Attorney General, Immigration and Naturalization Service, Respondents.
Case Date:February 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 463

168 F.3d 463 (11th Cir. 1999)

Robert A. LETTMAN, Petitioner,


Janet RENO, Attorney General, Immigration and Naturalization

Service, Respondents.

No. 97-5283.

United States Court of Appeals, Eleventh Circuit

February 26, 1999

Page 464

Joan Friedland, Florida Immigrant Advocacy Center, Miami, FL, for Petitioner.

David V. Bernal, Ernesto H. Molina, Jr., Dept. of Justice, Allen W. Hausman, David M. McConnell, Dept. of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondents.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge.


Petitioner, Robert A. Lettman, appeals a decision of the Board of Immigration Appeals (BIA) ordering him deported to Jamaica. We reverse.


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.


Before we can discuss Lettman's deportability, we must decide if we have jurisdiction to determine our jurisdiction, under the Illegal Immigration Reform 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.

  1. 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

    Page 465

    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, 330 U.S. 731, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947)). The Supreme Court relied on this doctrine in Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S.Ct. 566, 54 L.Ed.2d 538 (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...

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