United States v. Romeo , 122 F.3d 941 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-4421
Non-Argument Calendar
D. C. Docket No. 95-6193-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERRARD ROMEO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(September 10, 1997)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
DUBINA, Circuit Judge:
There is presently pending in this cause a petition for
rehearing filed by appellant Berrard Romeo (“Romeo”). In response
to the petition, the government represents to this court that it
has no objection to our granting panel rehearing and vacating that
portion of Romeo’s sentence ordering judicial deportation as a
condition of a term of supervised release. Notwithstanding the
government’s concession, we have made our own decision concerning
the merits of this matter. See Hunter v. United States, 101 F.3d
1565, 1574 (11th Cir. 1996) (declining to rest decision on
government’s concession in part because “past experience has taught
us that the government’s position on criminal law issues is
fluid”). For the reasons that follow, we grant the petition for
rehearing, vacate our previous unpublished opinion in United States
v. Berrard Romeo, No. 96-4421 (11th Cir. May 22, 1997), and
substitute this opinion in lieu thereof.
I. PROCEDURAL HISTORY
A federal grand jury sitting in the Southern District of
Florida indicted Romeo, charging him with possession with intent to
distribute and importation of cocaine. Romeo pled guilty to the
importation charge. The district court sentenced Romeo to 84 months
imprisonment, followed by a term of four years supervised release.
As part of the sentence, and as a special condition of supervised
release, the district court ordered Romeo deported. Romeo objected
to the district court’s order of deportation.
2
Romeo filed a timely appeal on September 5, 1996. On April 1,
1997, 8 U.S.C. § 1229a(a) (West Supp. 1997) was enacted into law as
part of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRAIRA”). Relying on our decision in United States
v. Oboh, 92 F.3d 1082 (11th Cir. 1996) (en banc), cert. denied, 117
S. Ct. 1257 (1997), we affirmed Romeo’s sentence, including the
order of deportation. Romeo then filed his unopposed petition for
rehearing. We stayed a ruling on the petition for rehearing pending
a decision in United States v. Dieguimde, ____ F.3d ____, (11th
Cir. 1997). However, Dieguimde did not reach the issue squarely
presented to us in this appeal.
II. ISSUE
Whether 8 U.S.C. § 1229a(a) (1997), enacted on April 1, 1997,
as part of the IIRAIRA, eliminated the district court’s
jurisdiction to order judicial deportation pursuant to 18 U.S.C. §
3583(d) ( West Supp. 1997), requiring the court of appeals to grant
rehearing and vacate that portion of Romeo’s sentence ordering
judicial deportation.
III. ANALYSIS
In United States v. Oboh, this court, sitting en banc, held
that 18 U.S.C. § 3583(d) authorizes a district court to order the
deportation of a defendant “subject to deportation” as a condition
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of supervised release. Congress subsequently passed the IIRAIRA, a
series of amendments to the Immigration and Nationality Act
(“INA”). The IIRAIRA provides in pertinent part that a hearing
before an immigration judge is the exclusive procedure for
determining whether an alien may be deported from the United
States. See 8 U.S.C. § 1229(a)(3) (1996). In the present appeal, we
must determine the effect of the IIRAIRA on the district court’s
authority to order deportation as a condition of supervised
release.1
1
Prior precedent does not have to be followed where there
is a change in statutory law that undermines that precedent. See
United States v. Woodard, 938 F.2d 1255, 1258 n.4 (11th Cir. 1991),
in which we said:
Although several of our cases state the
principle that “only” the en banc court or the
Supreme Court can overrule a panel decision,
in a situation such as this where our
authority derives from Congress, we have no
doubt that a clear change in the law by
Congress could also justify a panel of this
Court in not following an earlier panel’s
decision, where the prior panel’s decision was
based on legislation that had been changed or
repealed. See Davis v. Estell, 529 F.2d 437,
441 (5th Cir. 1976) (“one panel of this Court
cannot disregard the precedent set by a prior
panel, even though it conceives error in the
precedent. Absent an overriding Supreme Court
decision or a change in the statutory law,
only the Court en banc can do this”).
Even though Woodard discusses prior panel precedent, we conclude
the same principle applies to prior en banc precedent as well.
After all, the rationale is that the precedent, whether panel or en
banc, has been undermined to such an extent by the statutory change
that the question presented to the present panel is a different one
than that previously decided.
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A. United States v. Oboh.
We held in Oboh that district courts have the authority under
18 U.S.C. § 3583(d) to order deportation as a condition of
supervised release. In reaching this conclusion, we relied
primarily on the language of § 3583(d), which provides in pertinent
part:
If an alien defendant is subject to deportation, the
court may provide, as a condition of supervised release,
that he be deported and remain outside the United States,
and may order that he be delivered to a duly authorized
immigration official for such deportation.
18 U.S.C. § 3583(d). We found this language “clear[ly] and
unequivocal[ly]” granted district courts the power to order
deportation independently of the INS. Oboh, 92 F.3d at 1084.2
B. The New Immigration Law.
On September 30, 1996, the president signed the IIRAIRA into
law. The IIRAIRA contains a provision which states that a hearing
before an immigration judge is the exclusive means by which an
alien may be deported:
2
Five judges dissented from the majority opinion in Oboh.
The dissent interpreted § 3583(d) as merely allowing district
courts to order alien defendants to be surrendered to the INS for
deportation proceedings in accordance with the INA. The dissent
concluded that, considering § 3583(d) in conjunction with the INA,
§ 3583(d) did not bestow the authority to order direct, independent
judicial deportation.
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§ 1229a. Removal Proceedings
(a) Proceeding
(1) In general
An immigration judge shall conduct proceedings
for deciding the inadmissibility or
deportability of an alien.
(2) Charges
An alien placed in proceedings under this section
may be charged with any applicable ground of
inadmissibility under section 1182(a) of this title
or any applicable ground of deportability under
section 1227(a) of this title.
(3) Exclusive procedures
Unless otherwise specified in this chapter, a
proceeding under this section shall be the sole and
exclusive procedure for determining whether an
alien may be admitted to the United States or, if
the alien has been so admitted, removed from the
United States. . . .
8 U.S.C. § 1229a (emphasis added). Section 1229a also details the
procedures by which an immigration judge decides whether to admit
or deport an alien. No court has yet interpreted § 1229a(a)(3),
but the language is quite clear: immigration judges alone have the
authority to determine whether to deport an alien. This conclusion
is consistent with other provisions of the IIRAIRA which limit the
judiciary's role in immigration matters by sharply restricting
judicial review of deportation orders. See 8 U.S.C. § 1252(g);
Auguste v. Attorney General, 118 F.3d 723, 725-26 (11th Cir. 1997).
Thus, it is apparent to us that the new law alters the
district courts’ power to order deportation. The INA, as amended by
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IIRAIRA, 8 U.S.C. § 1229(a)(3), does “otherwise” authorize judicial
orders of deportation, but only if such orders are “requested by
the United States Attorney with the concurrence of the Commissioner
[of the INS] and the court chooses to exercise such jurisdiction.”
8 U.S.C. § 1228(c)(1) (1997) (formerly 8 U.S.C. § 1252a(c)(1)
(1996)). See also 8 U.S.C. § 1228(c)(2) (1997) (formerly 8 U.S.C.
§ 1252(c)(2) (1996)). The INA, as amended by the IIRAIRA, does not
provide for, or authorize, judicial deportation pursuant to 18
U.S.C. § 3583(d). Thus, we hold that 18 U.S.C. § 1229a(a)
eliminates any jurisdiction district courts enjoyed under § 3583(d)
to independently order deportation. In the wake of the statutory
change, § 3583(d) authorizes a district court to order that a
defendant be surrendered to the INS for deportation proceedings in
accordance with the INA, but it does not authorize a court to order
a defendant deported.
Moreover, we hold that 18 U.S.C. § 1229a(a) is applicable to
all pending cases because “[i]ntervening statutes conferring or
ousting jurisdiction” are ordinarily given immediate effect,
“whether or not jurisdiction lay when the underlying conduct
occurred or when the suit was filed .... “ Landgraf v. USI Film
Products, 511 U.S. 244, 114 S. Ct. 1483, 1501, 1502 (1994)
(citation omitted). Furthermore, § 1229a(a) is applicable because
it is an “intervening statute [which] ... affects the propriety of
prospective relief,” i.e., the deportation order, and is therefore
not “retroactive.” Landgraf, 114 S. Ct. at 1501.
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IV. CONCLUSION
Because we hold 18 U.S.C. § 1229a(a) of the INA, enacted as
part of the IIRAIRA, divests the district court of the authority to
order deportation, and this jurisdictional change in the law
occurred while Romeo’s appeal was still pending before this court,
we grant Romeo’s petition for rehearing, vacate that portion of
Romeo’s sentence ordering judicial deportation, and remand this
case to the district court for further proceedings consistent with
this opinion.
VACATED and REMANDED.
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