[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:
2

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rehearing, vacate our previous unpublished opinion in United States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.
3

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
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.

4

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
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.

5

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:
6

§ 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. 
8

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.