Filed: Apr. 27, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-27-2004 Bamba v. Dist Dir INS Phila Precedential or Non-Precedential: Precedential Docket No. 03-2275 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Bamba v. Dist Dir INS Phila" (2004). 2004 Decisions. Paper 736. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/736 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-27-2004 Bamba v. Dist Dir INS Phila Precedential or Non-Precedential: Precedential Docket No. 03-2275 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Bamba v. Dist Dir INS Phila" (2004). 2004 Decisions. Paper 736. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/736 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-27-2004
Bamba v. Dist Dir INS Phila
Precedential or Non-Precedential: Precedential
Docket No. 03-2275
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Bamba v. Dist Dir INS Phila" (2004). 2004 Decisions. Paper 736.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/736
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PRECEDENTIAL ANN A. RUBEN
DEREK W. GRAY
UNITED STATES COURT OF Steel, Rudnick & Ruben
APPEALS 1608 Walnut Street
FOR THE THIRD CIRCUIT Suite 1500
Philadelphia, PA 19103
No. 03-2275 Counsel for Appellant
PATRICK L. MEEHAN
KARIM BAMBA, United States Attorney
Appellant VIRGINIA A. GIBSON
Assistant United States Attorney
v. Chief, Civil Division
SUSAN R. BECKER
WILLIAM F. RILEY, JR.,* INTERIM Assistant United States Attorney
DISTRICT DIRECTOR Office of United States Attorney
OF THE BUREAU OF IMMIGRATION 615 Chestnut Street
AND CUSTOMS ENFORCEMENT Philadelphia, PA 19106
* (Amended Per Clerk’s Counsel for Appellee
Order dated 07/02/03)
OPINION
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
CHERTOFF, Circuit Judge.
(Dist. Ct. No. 02-cv-08430)
District Judge: Honorable Jan E. DuBois Congress has provided that aliens
“not lawfully admitted for permanent
r e s id e n c e ” w h o co m m it c e r ta in
“aggravated” felonies are deportable under
Submitted March 25, 2004 expedited removal procedures. 8 U.S.C. §
1228(b). Appellant Karim Bamba has
Before: ROTH, AMBRO and been convicted of an aggravated felony,
CHERTOFF, Circuit Judges. but argues in this habeas corpus appeal
that the expedited procedures do not apply
(Filed: April 27, 2004) because he was not lawfully admitted at
all, but merely “paroled” into the United
States for a limited purpose. For the
reasons elaborated below, we reject this
argument and hold Bamba subject to On December 24, 1997, Bamba was
expedited removal. Accordingly, the charged in the United States District Court
District Court’s order denying the habeas for the Eastern District of Pennsylvania
petition and vacating the order staying with one count of bank fraud in violation
Bamba’s deportation will be affirmed. of 18 U.S.C. § 1344, for allegedly
transmitting two stolen checks in the
amounts of $10,055.13 and $14,792.52.
I. He subsequently pled guilty to an
Information on March 16, 1998, and was
Bamba is a native and citizen of the
sentenced on July 17, 1998, to time served,
Republic of the Ivory Coast. He is the
three years of supervised release,3 and a
husband of a U.S. citizen and has a son
fine of $500.00.
who was born in the United States. Bamba
originally entered the United States as a On March 2, 2001, the INS
visitor on July 1, 1987.1 In 1993, he detained Bamba and placed him in
briefly left the United States for expedited removal proceedings. On April
approximately one month to visit his 18, 2001,4 the INS issued a Final
family in the Ivory Coast. Administrative Removal Order pursuant to
§ 238 of the Immigration and Nationality
In 1995, Bamba again returned to
Act (“INA”), 8 U.S.C. § 1228, finding by
the Ivory Coast because of the death of his
“clear, convincing, and unequivocal
mother. Prior to his departure, Bamba
evidence” that Bamba was deportable as
sought and received from the Immigration
and Naturalization Service (“INS”)
advanced parole to re-enter the United
States upon his return. Bamba was United States pending a decision regarding
paroled back into the United States on his application for admission. See 8
October 25, 1995.2 U.S.C. § 1182(d)(5). “In the context of an
alien’s initial entry, this amounts to
permission by the Attorney General for
1
There is some discrepancy in the briefs ingress into the country but is not a formal
and record regarding the actual date of ‘admission.’” Chi Thon Ngo v. INS.,192
entry. The immigration court’s transcript F.3d 390, 392 n.1 (3d Cir. 1999) (citing 8
includes testimony suggesting dates of U.S.C. § 1182(d)(5)(A)).
both January 1, 1987, and July 1, 1987.
3
See App. Vol. II at 7. The District Court The term of supervised release was
credited the July date. For the purpose of completed on June 10, 2001.
this appeal, any discrepancy in dates is
4
immaterial. While both the briefs and the District
Court’s opinion provide a date of April 23,
2
A “paroled” alien is one who is 2001, the INS’s order lists the date as
temporarily permitted to remain in the “April 18, 2001.”
2
an alien convicted of an aggravated felony of proof for withholding eligibility or
pursuant to INA § 237(a)(2)(A)(iii), 8 protection under the Convention Against
U.S.C. § 1227(a)(2)(A)(iii), and ordering Torture. Moreover, the BIA rejected
Bamba removed. Bamba’s contention that as a parolee he
should not have been placed in expedited
Bamba subsequently filed an
removal proceedings under 8 U.S.C. §
application for withholding of removal and
1228(b). The BIA reasoned that
for relief under the United Nations
“[n]othing in that provision prohibits its
Convention Against Torture and Other
application to parolees, and construing the
Cruel, Inhuman or Degrading Treatment or
provision to forbid its application to
Punishment (“Convention Against
parolees would provide more favorable
Torture”). The INS asylum officer initially
treatment for parolees than for lawfully
denied his request; however, the matter
admitted aliens.” App. Vol. II at 52 (citing
was referred to an Immigration Judge
Baran-Reyes v. INS, 256 F.3d 600 (7 th Cir.
(“IJ”) who found Bamba’s fear was
2001) [sic]). Finally, the BIA noted that it
sufficiently reasonable to allow him to
did not have jurisdiction to consider
proceed with an application for
Bamba’s contention that 8 U.S.C. §
withholding and protection.
1228(b) violates his right to due process.
Following a hearing on June 10,
On November 12, 2002, Bamba
2002, the IJ found Bamba ineligible for
filed a Petition for Habeas Corpus in the
withholding of removal or relief under the
District Court pursuant to 28 U.S.C. §
Convention Against Torture. The IJ noted
2241. Bamba advanced two principal
that Bamba was subject to expedited
arguments: (1) as a person paroled into the
removal following his conviction of the
United States, he is not “deportable” under
“aggravated felony” of bank fraud in
the expedited removal proceedings of 8
which the loss involved was over $10,000.
U.S.C. § 1228(b); and (2) even if he is
The IJ determined, however, that although
subject to expedited removal proceedings,
the offense constituted an aggravated
application of the statute in his case
felony, it “is still the type of offense which
violates his due process rights. On appeal
would allow him to apply for withholding
before this Court, however, Bamba does
of removal.” App. Vol. II at 33. Yet the IJ
not challenge the statute as violative of due
went on to conclude that Bamba failed to
process. Therefore, we limit our
meet the standard necessary to establish
discussion to the issue of the statute’s
withholding of removal or relief under the
applicability to parolees.
Convention Against Torture.
The District Court rejected
On November 6, 2002, the Board of
Bamba’s argument that § 1228(b)’s
Immigration Appeals (“BIA”) affirmed the
expedited removal proceedings are only
decision of the IJ. The BIA agreed with
applicable to “admitted” aliens who are
the IJ that Bamba failed to meet his burden
convicted of an aggravated felony, and
3
therefore as a parolee Bamba is not subject statute, context and legislative history of
to the provision. Rather, the District the INA, and case law of other circuit
Court, relying on the language of the courts.
statute and case law of other circuit courts,
concluded that the provision is applicable
to all aliens convicted of an aggravated II.
felony who are not lawfully admitted for
“[T]he Immigration Act has never
permanent residence, including parolees.5
been a model of clarity,” Chi Thon Ngo v.
Notice of appeal was timely filed on INS, 192 F.3d 390, 394 (3d Cir. 1999), and
April 29, 2003. This Court has jurisdiction the provisions at issue in this case are no
under 28 U.S.C. §§ 1291, 2253. “We exception. Nevertheless, we conclude that
review de novo the District Court’s denial the better interpretation of the statute’s
of habeas c orpus relief and its plain language is that the expedited
interpretation of the applicable statutes.” removal proceedings apply to all aliens not
Steele v. Blackman,
236 F.3d 130, 133 admitted for permanent residence,
(3d Cir. 2001). including parolees such as Bamba, who are
convicted of an aggravated felony.
For the reasons elaborated below,
we agree that the District Court properly 8 U.S.C. § 1228(b) provides, in
rejected Bamba’s interpretation of the pertinent part:
statute as being inapplicable to parolees.
(b) Removal of aliens who
Rather, the District Court’s conclusion that
are not permanent residents
the statute applies to aliens convicted of an
aggravated felony who are not lawfully (1) The Attorney General
admitted for permanent residence is may, in the case of an alien
supported by the plain language of the described in paragraph (2),
determine the deportability
of such alien under section
5 1227(a)(2)(A)(iii) of this
Bamba does not dispute the District
title (relating to conviction
Court’s conclusion that (1) as a parolee he
of an aggravated felony) and
was not “lawfully admitted” for permanent
issue an order of removal
residence in the United States at the time
pursuant to the procedures
expedited removal proceedings were
set forth in this subsection
commenced against him, and (2) he was
or section 1229a of this title.
convicted of an “aggravated felony” as
defined in 8 U.S.C. § 1227(a)(2)(A)(iii). (2) An alien is described in
Rather, as already noted, the only issue on this paragraph if the alien—
appeal is whether the District Court erred
(A) was not lawfully
in its interpretation of the statute.
admitted for permanent
4
residence at the time at “in the case of an alien described in
which proceedings under paragraph (2)” who is convicted of an
this section commenced; or aggravated felony, 8 U.S.C. § 1228(b)(1),
and paragraph 2 describes such an alien as
(B) had permanent resident
one who “was not lawfully admitted for
status on a conditional basis
permanent residence at the time at which
(as described in section
p r o c e e d in g s u n d e r t h i s s e c t i o n
1186a of this title) at the
commenced,” 8 U.S.C. § 1228(b)(2).
time that proceedings under
this section commenced. The wrinkle, however, is that the
language of § 1227(a)(2)(A)(iii) arguably
8 U.S.C. § 1228(b) (emphasis added).6
suggests a contrary result. In support of
Section 1227(a)(2)(A)(iii) provides: his interpretation that § 1228(b) does not
“Any alien who is convicted of an apply to parolees, Bamba argues that §
aggravated felony at any time after 1228(b)(1) expressly requires that the
admission is deportable.” (emphasis “deportability” of an alien be determined
added). by 8 U.S.C. § 1227(a)(2)(A)(iii), which
provides that to be deportable an alien
The District Court concluded that
must be “convicted of an aggravated
the plain language of § 1228(b) and §
felony any time after admission.” 8 U.S.C.
1227(a)(2)(A)(iii) dictates a conclusion
§ 1227(a)(2)(A)(iii) (emphasis added).
that the expedited removal provision
applies to all aliens convicted of an The District Court rejected
aggravated felony who are not lawfully Bamba’s reading of the statute. In
admitted for permanent residence, particular, the District Court expressed
including parolees. See Bamba v. Elwood, concern that under Bamba’s interpretation
No. 02-8430, at 11 (E.D. Pa. Mar. 31, the statute would be rendered meaningless,
2003). The plain language of 8 U.S.C. § as no alien would qualify for expedited
1228(b) does appear to support this removal proceedings. “Expedited removal
interpretation. Section 1228(b)(1) applies under § 1228(b) is applicable only to
aliens not lawfully admitted who are
convicted of an aggravated felony. If, as
6 petitioner argues, admission is required in
“The terms ‘admission’ and ‘admitted’
order to authorize expedited removal as an
mean, with respect to an alien, the lawful
aggravated felony, § 1228(b) would be a
entry of the alien into the United States
nullity—no alien would qualify for
after inspection and authorization by an
expedited removal.” Bamba v. Elwood,
immigration officer.” 8 U.S.C. §
No. 02-8430, at 11 (Mar. 31, 2003).
1101(a)(13)(A). “An alien who is paroled
under section 1182(d)(5) of this title . . . Bamba contends that the District
shall not be considered to have been Court erroneously concluded that his
admitted.” 8 U.S.C. § 1101(a)(13)(B).
5
interpretation would render § 1228(b) a We reject such an illogical
nullity. He argues that § 1228(b) actually interpretation of the statute. Rather, we
says that it applies to aliens who are “not agree with the Government and District
lawf ully admitted for permanent Court that the better reading of 8 U.S.C. §
residence,” and that there are many aliens 1228(b)’s plain language is that it applies
lawfully admitted for reasons other than to aliens convicted of an aggravated felony
permanent residence. Thus, under who are not lawfully admitted for
Bamba’s interpretation, § 1228’s expedited permanent residence.
removal process would apply only to
The Government’s interpretation is
admitted aliens who are not admitted for
easily reconcilable with the language of §
permanent residence, such as visitors,
1227(a)(2)(A)(iii), as incorporated in §
students, and temporary residents. See 8
1228(b)(1). Section 1227(a)(2)(A)(iii)’s
U.S.C. § 1101(a)(15)(B),(F),(H),(L).
While Bamba is correct that his
interpretation of the statute would not admitted, such as parolees, would receive
literally render the expedited removal less favorable treatment. For example,
proceeding a “nullity”—that is, the Bamba argues, under § 1225(b), if a
provision would still apply in certain pa r o l e e i s d et e r m i n ed t o h a ve
circumstances—his interpretation would misrepresented a material fact, falsely
still create the anomalous result that the claimed U.S. citizenship, or lacks proper
expedited removal proceedings would only documentation, he can be ordered removed
apply to a limited class of admitted aliens. with no hearing or review. See Appellant
As the Government points out, such a Br. at 26.
reading would create the perverse result This argument is unpersuasive. To
that hypothetical accomplices of Bamba begin, the plain language of § 1225(b)
who had been admitted as students, suggests that it is inapplicable to parolees.
tourists, or another temporary class would Section 1225(b)(1) is entitled “Inspection
be subject to expedited removal, while of aliens arriving in the United States and
Bamba would not be subject to such certain other aliens who have not been
procedures precisely because he was not admitted or paroled.” 8 U.S.C. §
legally admitted.7 1225(b)(1) (emphasis added). Even
assuming § 1225 does apply to parolees,
the mere fact that under Bamba’s
7
Bamba argues that the INA contains interpretation there may be a limited
t w o sep a r a t e e x p e d ited removal number of circumstances where parolees
proceedings—one for aliens who have not might be treated less favorably than
been admitted, 8 U.S.C. § 1225(b), and admitted aliens does not render appropriate
one for aliens who have been admitted, 8 a construction of the statute that illogically
U.S.C. § 1228(b). He argues that there are provides for generally better treatment to
cases where aliens who have not been parolees than admittees.
6
requirement that the alien must be ambiguous statutory terms ‘concrete
“convicted of an aggravated felony any meaning through a process of case-by-case
time after admission” is best read as adjudication.’” Aguirre-Aguirre, 526 U.S.
limiting the application of the expedited at 425 (quoting INS v. Cardoza-Fonseca,
removal proceedings to those aliens who 480 U.S. 421, 448 (1987)); see also Acosta
have committed an aggravated felony after v. Ashcroft,
341 F.3d 218, 222 (3d Cir.
entering the United States. In other words, 2003).
the word “admission” in this subparagraph
In this case, in affirming the IJ’s
is not to be read as a term of art referring
decision, the BIA interpreted § 1228(b) as
to a class of aliens formally admitted, but
applying to parolees such as Bamba:
rather as clarifying that the statute does not
“Nothing in that provision prohibits its
apply to aliens who have committed an
application to parolees, and construing the
aggravated felony prior to entering this
provision to forbid its application to
country.
parolees would provide more favorable
We also disagree with Bamba’s treatment for parolees than for lawfully
contention that his interpretation comports admitted aliens.” App. Vol. II, at 53
with the plain meaning of the statute. At (citing Baran-Reyes [sic]). As elaborated
best, Bamba has established that the above, we believe that this is a
statutory scheme is ambiguous. To the “permissible construction of the statute.”
extent that the statute is silent or Chevron, 467 U.S. at 843.
ambiguous, we defer to the agency’s
Moreover, regulations promulgated
interpretation and “the question for the
by the Attorney General implicitly support
court is whether the agency’s answer is
an interpretation of § 1228(b) as applying
based on a permissible construction of the
to parolees. Congress has delegated
statute.” See Chevron U.S.A., Inc. v.
authority to the Attorney General to
Natural Res. Def. Council, Inc., 467 U.S.
promulgate regulations for proceedings
837, 843 (1984); see also United States v.
under § 1228(b). See 8 U.S.C. §
Hernandez-Vermudez, 356 F.3d 1011,
1228(b )(4); see also H ernandez-
1014 (9 th Cir. 2004) (concluding that §
Vermudez, 356 F.3d at 1015-16. In
1228(b) is ambiguous and deferring to the
Hernandez-Vermudez, the Ninth Circuit
Attorney General’s interpretation). It is
noted that the Attorney General has
well-established that “the BIA’s (and
enacted regulations, 8 C.F.R. § 238.1,
hence the IJ’s) interpretation of the INA is
providing for the application of § 1228(b)
subject to established principles of
to aliens who are not admitted or paroled.
deference.” Coraggioso v. Ashcroft, 355
Hernandez-Vermudez, 356 F.3d at 1015 &
F.3d 730, 733 (3d Cir. 2004) (citing INS v.
n.6 (deferring to regulation in concluding
Aguirre-Aguirre, 526 U.S. 415, 424-25
that § 1228(b) expedited removal
(1999)). This includes affording Chevron
proceeding applies to illegal immigrants).
deference to BIA decisions “giv[ing]
While the regulation is arguably not
7
directly applicable in this case because it permanent resident status
applies to aliens who are not admitted or under section 216 of the
paroled, the language of the regulation Act;
suggests that the Attorney General has
(iii) Has been convicted (as
interpreted “deportable” to include
defined in section
“paroled” aliens. The regulation provides,
101(a)(48) of the Act and as
in pertinent part:
demonstrated by any of the
PART 238—EXPEDITED documents or records listed
R E M O V A L O F in § 3.41 of this chapter) of
AGGRAVATED FELONS an aggravated felony and
such conviction has become
....
final; and
(b) Preliminary
(iv) Is deportable under
consideration and Notice of
section 237(a)(2)(A)(iii) of
Intent to Issue a Final
the Act, including an alien
Administrative Deportation
who has neither been
Order; commencement of
admitted nor paroled, but
proceedings–
w h o i s c o n c l u si v e ly
(1) Basis of Service charge. presumed deportable under
An issuing Service officer section 237(a)(2)(A)(iii) by
shall cause to be served operation of section 238(c)
upon an alien a Form I-851, of the Act (“Presumption of
Notice of Intent to Issue a Deportability”).
F i n a l A d m i n i s tr a t i v e
8 C.F.R. § 238.1 (emphasis added). The
Deportation Order (Notice
use of the phrase “including an alien who
of Intent), if the officer is
has neither been admitted nor paroled”
satisfied that there is
(emphasis added) implicitly suggests an
sufficient evidence, based
interpretation of “deportable” under INA §
upon questioning of the
2 3 7 ( a ) (2 )(A)(ii i), 8 U .S.C . §
alien by an immigration
1227(a)(2)(A)(iii), that includes paroled
officer and upon any other
aliens.
evid ence obt aine d, t o
support a finding that the In sum, we read the plain language
individual: of § 1228(b) to apply to parolees. To the
extent the statute is ambiguous, we defer
(i) Is an alien;
to the BIA’s interpretation, as outlined in
(ii) Has not been lawfully the BIA’s decision in this case and
admitted for permanent implicitly in 8 C.F.R. § 238.1, that §
residence, or has conditional 1228(b)’s expedited removal proceedings
8
apply to parolees. criminal aliens.” Hernandez-Vermudez,
356 F.3d at 1014 (citing H.R. Conf. Rep.
No. 104-828, at 215 (1996); H.R. Rep. No.
III. 104-469(I), at 12, 107, 118-25 (1996)).
Bamba’s interpretation of the statute as
The legislative history and
applying to only a narrow class of admitted
framework of the INA further bolsters our
aliens is inconsistent with this broad
interpretation of the statute. Admittedly, a
Congressional intent to expedite the
review of the legislative history does not
removal of criminal aliens. Cf. Zhang,
reveal Congress’s specific intent with
274 F.3d at 108 (holding in context of 8
respect to the application of § 1228(b) to
U.S.C. § 1252(a)(2)(C) that “[i]n light of
parolees. However, the legislative history
that goal [of expediting the removal of
does evince a broad Congressional intent
aliens convicted of aggravated felonies],
to expedite the removal of criminal aliens.
we think it is unlikely that Congress meant
“[I]t is beyond cavil that one of Congress’s
to deny judicial review of removal orders
principal goals in enacting [the Illegal
only for aliens who had been lawfully
Immigration Reform Responsibility Act of
admitted to the United States and to allow
1996 (IIRIRA), Pub. L. No. 104-208, Div.
such review for aggravated felons who had
C, 110 Stat. 3009-546 (1996)] was to
never been admitted”). Moreover,
expedite the removal of aliens who have
Congress’s intent to apply the expedited
been convicted of aggravated felonies.”
proceedings to all aliens who are not
Zhang v. INS, 274 F.3d 103, 108 (2d Cir.
lawfully admitted as permanent residents,
2001) (citing Moore v. Ashcroft, 251 F.3d
including parolees, is reflected in § 1228’s
919, 925 (11th Cir. 2001)); see also
title—“Removal of Aliens Who Are Not
Hernandez-Vermudez, 356 F.3d at 1014
Permanent Residents.” 10
(“Congress clearly intended to expedite the
removal of criminal aliens who are not
l a w f u l p e r m a n e n t r e si d e n ts . ” ).
10
“Sometimes legislative history is itself We acknowledge that “the title of a
ambiguous. Not this time. There simply is statute . . . cannot limit the plain meaning
no denying that in enacting the Violent of the text.” Brotherhood of R. R.
Crime Control and Law Enforcement Act Trainmen v. Baltimore & O.R. Co., 331
of 1994,8 and [IIRIRA],9 Congress U.S. 519, 528-29 (1947); see also
intended to expedite the removal of Sandoval v. Reno, 166 F.3d 225, 235 (3d
Cir. 1999) (explaining that “a title alone is
not controlling”). However, a title can be
8
Pub. L. No. 103-322, Title XIII, § examined “[f]or interpretive purposes . . .
130004, 108 Stat. 1796, 2026-28 (1994). [to] shed light on some ambiguous word or
phrase.” 331 U.S. at 529. In this case, to
9
IIRIRA § 304(c), Pub. L. No. 104-208, the extent that the class of aliens covered
Div. C, 110 Stat. 3009-597 (1996). by § 1228’s expedited removal provision is
9
Bamba contends that the framework aliens, and not paroled aliens like Bamba
of the INA supports his interpretation of 8 who have not been “admitted.”
U.S.C. § 1228(b). Specifically, he points
The problem, however, is that
to the fact while IIRIRA united the
Bamba advances no rationale for why
bifurcated “exclusion” and “deportation”
Congress would have intended to preserve
proceedings into a single “removal”
a distinction between “deportable” and
proceeding, see Bakhtriger v. Elwood, 360
“inadmissible” aliens in the context of
F.3d 414, 415 n.1 (3d Cir. 2004), the Act
expedited removal of aggravated felons.
still maintains some distinctions between
As elaborated above, any such distinction
aliens who have been admitted and are
is irrational, applying a less stringent
“deportable” and those aliens who have
standard to those aliens who have not been
not been admitted and are “inadmissible.”
admitted. Moreover, Bamba’s argument
See Appellant Br. at 12-14 (citing, e.g., In
fails to acknowledge the existence of other
re Rosas-Ramirez, 22 I & N Dec. 616
language in § 1228(b) indicating that the
(BIA 1999); 8 U.S.C. § 1229a(e)(2)).11
provision was intended to apply to
Bamba therefore argues that because
inadmissible aliens. Recall that the
Congress used the term “deportability” and
provision explicitly provides that “[a]n
not “inadmissibility” or “deportation and
alien is described in this paragraph if the
inadmissibility,” it must be presumed that
alien—(A) was not lawfully admitted for
Congress specifically intended § 1228(b)’s
permanent residence.” 8 U.S.C. §
e x p e d i te d adm inistrati v e r e m o v al
1228(b)(2)(A) (emphasis added).
proceedings to apply only to “deportable”
ambiguous, we find it persuasive that IV.
Congress entitled the section “Removal of While our Court has not previously
Aliens Who Are Not Permanent addressed the issue in this case, other
Residents.” 8 U.S.C. § 1228(b) (emphasis circuit courts considering the question
added). have uniformly concluded that § 1228’s
11 expedited removal provision applies to all
For example, while the alien has the
aliens not admitted for permanent
burden in an application for admission of
residence, including parolees.
establishing that he is “clearly and beyond
doubt entitled to be admitted and is not As noted by the District Court, in
inadmissible,” 8 U.S.C. § 1229a(c)(2)(A), Bazan-Reyes v. INS the Seventh Circuit
the government has “the burden of considered and rejected precisely the same
establishing by clear and convincing argument that Bamba now advances. 256
evidence that, in the case of an alien who F.3d 600, 604-05 (7th Cir. 2001). In
has been admitted to the United States, the support of its interpretation of § 1228(b),
alien is deportable,” 8 U.S .C. § the Seventh Circuit explained:
1229a(c)(3)(A).
10
Nothing in that section who are not “admitted” are exempt from §
prohibits its application to 1228(b)’s expedited removal of aggravated
parolees, and, as the felons. See Hernandez-Vermudez, 356
government points out, F.3d 1011.13 While acknowledging that
construing the statute to the statute “can be read” to exempt aliens
forbid its application to who are not admitted, the Ninth Circuit
parolees would provide concluded that such a reading is at odds
more favorable treatment for with the language and the legislative
parolees than for lawfully history of the statute. See id. at 1014.14
admitted aliens. We cannot
Bamba points to no authority from
belie ve that Congress
intended such a result. We
find it more plausible that 13
t h e r e fer e n c e to § In Hernandez-Vermudez, the Ninth
1227(a)(2)(A)(iii) simply Circuit examined the meaning of the
operates to incorporate the statute in the context of a claim that an
definition of aggravated illegal immigrant, rather than a parolee,
felony set out in that section was exempt from the expedited removal
to elucidate which non- provision because he was not “admitted.”
lawful resident aliens may The analysis with respect to interpretation
be placed in expedited of the statutory scheme, however, is
proceedings. equally persuasive in the context of
parolees.
Id. at 605.12
14
The position of the Seventh and
In a slightly different context, the
Ninth Circuits is also supported by the
Ninth Circuit has recently joined the
Second Circuit’s decision in Zhang v.
approach taken by the Seventh Circuit,
INS. In Zhang, the court examined the
rejecting the argument that immigrants
scope of § 1225(a)(2)(C)’s jurisdiction-
stripping provision for aggravated felons.
The appellant argued, as here, that
12
Bamba’s attempt to distinguish §1225 (a)(2 )(C)’s r e f e r e n ce to
Bazan-Reyes on the ground that it has §1227(a)(2)(A )(iii) limited th e
been overruled by subsequent Seventh j u r i s d ic t i o n -s t r ip p i n g p r o v i s io n ’ s
Circuit case law is unpersuasive. The case application to aliens who were admitted.
cited by Bamba in support of this The court rejected this interpretation. 274
proposition—Dimenski v. INS, 275 F.3d F.3d at 107-08. Rather, the Second Circuit
574 (7 th Cir. 2001)—not only does not concluded that the reference was included
explicitly overrule Bazan-Reyes but is “not for its description of persons but
based on immigration law prior to the solely for its cataloguing of crimes.” Id. at
enactment of IIRIRA. 108.
11
other circuit courts suggesting a contrary
interpretation of the statute. We now join
the approach taken by the Seventh Circuit
in Bazan-Reyes and the Ninth Circuit in
Hernandez-Vermudez, and hold that §
1228(b)’s expedited removal provision is
applicable to all aliens convicted of an
aggravated felony who are not lawfully
admitted for permanent residence,
including parolees.
V.
For the foregoing reasons, we
affirm the District Court’s order denying
the habeas petition and vacating the order
staying Bamba’s deportation.
12
