Bamba v. Dist Dir INS Phila

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Precedential or Non-Precedential: Precedential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

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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