                                                                 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


                       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
