Lettman v. Reno, 97-5283

• Decision Date: 26 February 1999
• Docket Number: No. 97-5283,97-5283
• Citation: 168 F.3d 463
• Parties: 12 Fla. L. Weekly Fed. C 573 Robert A. LETTMAN, Petitioner, v. Janet RENO, Attorney General, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 463

168 F.3d 463

12 Fla. L. Weekly Fed. C 573

Robert A. LETTMAN, Petitioner, v. Janet RENO, Attorney General, Immigration and Naturalization

Service, Respondents.

No. 97-5283.

United States Court of Appeals, Eleventh Circuit.

Feb. 26, 1999.

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.

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 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.

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, 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. 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, 167 F.3d 852 (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 at 1192 (same). ¹ We conclude, therefore, that we have jurisdiction to decide whether we have jurisdiction; but our 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, 1992 WL 195810 (BIA 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. ² 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 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 ³ eliminated the distinction 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 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. ⁴ Congress is presumed to know the current law of the area in which they are legislating. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 696-98, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). So, we can presume that Congress was aware of the...