2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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 

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-2275

 

 KARIM BAMBA,

Appellant

v.

WILLIAM F. RILEY, JR.,* INTERIM

DISTRICT DIRECTOR

OF THE BUREAU OF IMMIGRATION

AND CUSTOMS ENFORCEMENT

* (Amended Per Clerk’s 

 Order dated 07/02/03)

 

On Appeal from the United States

District Court

for the Eastern District of Pennsylvania

(Dist. Ct. No. 02-cv-08430)

District Judge: Honorable Jan E. DuBois

 

Submitted March 25, 2004

Before: ROTH, AMBRO and

CHERTOFF, Circuit Judges.

(Filed: April 27, 2004)

ANN A. RUBEN 

DEREK W. GRAY

Steel, Rudnick & Ruben 

1608 Walnut Street 

Suite 1500 

Philadelphia, PA 19103 

Counsel for Appellant

PATRICK L. MEEHAN

United States Attorney

VIRGINIA A. GIBSON

Assistant United States Attorney

Chief, Civil Division 

SUSAN R. BECKER

Assistant United States Attorney

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

Counsel for Appellee 

 

 

OPINION

 

CHERTOFF, Circuit Judge.

Congress has provided that aliens

“not lawfully admitted for permanent

residence” who commit certain

“aggravated” felonies are deportable under

expedited removal procedures. 8 U.S.C. §

1228(b). Appellant Karim Bamba has

been convicted of an aggravated felony,

but argues in this habeas corpus appeal

that the expedited procedures do not apply

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
2

argument and hold Bamba subject to

expedited removal. Accordingly, the

District Court’s order denying the habeas

petition and vacating the order staying

Bamba’s deportation will be affirmed.

I.

Bamba is a native and citizen of the

Republic of the Ivory Coast. He is the

husband of a U.S. citizen and has a son

who was born in the United States. Bamba

originally entered the United States as a

visitor on July 1, 1987.1 In 1993, he

briefly left the United States for

approximately one month to visit his

family in the Ivory Coast. 

In 1995, Bamba again returned to

the Ivory Coast because of the death of his

mother. Prior to his departure, Bamba

sought and received from the Immigration

and Naturalization Service (“INS”)

advanced parole to re-enter the United

States upon his return. Bamba was

paroled back into the United States on

October 25, 1995.2

On December 24, 1997, Bamba was

charged in the United States District Court

for the Eastern District of Pennsylvania

with one count of bank fraud in violation

of 18 U.S.C. § 1344, for allegedly

transmitting two stolen checks in the

amounts of $10,055.13 and $14,792.52.

He subsequently pled guilty to an

Information on March 16, 1998, and was

sentenced on July 17, 1998, to time served,

three years of supervised release,3 and a

fine of $500.00.

On March 2, 2001, the INS

detained Bamba and placed him in

expedited removal proceedings. On April

18, 2001,4 the INS issued a Final

Administrative Removal Order pursuant to

§ 238 of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1228, finding by

“clear, convincing, and unequivocal

evidence” that Bamba was deportable as

 

1

 There is some discrepancy in the briefs

and record regarding the actual date of

entry. The immigration court’s transcript

includes testimony suggesting dates of

both January 1, 1987, and July 1, 1987.

See App. Vol. II at 7. The District Court

credited the July date. For the purpose of

this appeal, any discrepancy in dates is

immaterial. 

 

2

 A “paroled” alien is one who is

temporarily permitted to remain in the

United States pending a decision regarding

his application for admission. See 8

U.S.C. § 1182(d)(5). “In the context of an

alien’s initial entry, this amounts to

permission by the Attorney General for

ingress into the country but is not a formal

‘admission.’” Chi Thon Ngo v. INS.,192

F.3d 390, 392 n.1 (3d Cir. 1999) (citing 8

U.S.C. § 1182(d)(5)(A)). 

 

3

 The term of supervised release was

completed on June 10, 2001. 

 

4

 While both the briefs and the District

Court’s opinion provide a date of April 23,

2001, the INS’s order lists the date as

“April 18, 2001.” 
3

an alien convicted of an aggravated felony

pursuant to INA § 237(a)(2)(A)(iii), 8

U.S.C. § 1227(a)(2)(A)(iii), and ordering

Bamba removed. 

Bamba subsequently filed an

application for withholding of removal and

for relief under the United Nations

Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or

Punishment (“Convention Against

Torture”). The INS asylum officer initially

denied his request; however, the matter

was referred to an Immigration Judge

(“IJ”) who found Bamba’s fear was

sufficiently reasonable to allow him to

proceed with an application for

withholding and protection. 

Following a hearing on June 10,

2002, the IJ found Bamba ineligible for

withholding of removal or relief under the

Convention Against Torture. The IJ noted

that Bamba was subject to expedited

removal following his conviction of the

“aggravated felony” of bank fraud in

which the loss involved was over $10,000.

The IJ determined, however, that although

the offense constituted an aggravated

felony, it “is still the type of offense which

would allow him to apply for withholding

of removal.” App. Vol. II at 33. Yet the IJ

went on to conclude that Bamba failed to

meet the standard necessary to establish

withholding of removal or relief under the

Convention Against Torture.

On November 6, 2002, the Board of

Immigration Appeals (“BIA”) affirmed the

decision of the IJ. The BIA agreed with

the IJ that Bamba failed to meet his burden

of proof for withholding eligibility or

protection under the Convention Against

Torture. Moreover, the BIA rejected

Bamba’s contention that as a parolee he

should not have been placed in expedited

removal proceedings under 8 U.S.C. §

1228(b). The BIA reasoned that

“[n]othing in that provision prohibits its

application to parolees, and construing the

provision to forbid its application to

parolees would provide more favorable

treatment for parolees than for lawfully

admitted aliens.” App. Vol. II at 52 (citing

Baran-Reyes v. INS, 256 F.3d 600 (7th Cir.

2001) [sic]). Finally, the BIA noted that it

did not have jurisdiction to consider

Bamba’s contention that 8 U.S.C. §

1228(b) violates his right to due process. 

On November 12, 2002, Bamba

filed a Petition for Habeas Corpus in the

District Court pursuant to 28 U.S.C. §

2241. Bamba advanced two principal

arguments: (1) as a person paroled into the

United States, he is not “deportable” under

the expedited removal proceedings of 8

U.S.C. § 1228(b); and (2) even if he is

subject to expedited removal proceedings,

application of the statute in his case

violates his due process rights. On appeal

before this Court, however, Bamba does

not challenge the statute as violative of due

process. Therefore, we limit our

discussion to the issue of the statute’s

applicability to parolees.

The District Court rejected

Bamba’s argument that § 1228(b)’s

expedited removal proceedings are only

applicable to “admitted” aliens who are

convicted of an aggravated felony, and
4

therefore as a parolee Bamba is not subject

to the provision. Rather, the District

Court, relying on the language of the

statute and case law of other circuit courts,

concluded that the provision is applicable

to all aliens convicted of an aggravated

felony who are not lawfully admitted for

permanent residence, including parolees.5

Notice of appeal was timely filed on

April 29, 2003. This Court has jurisdiction

under 28 U.S.C. §§ 1291, 2253. “We

review de novo the District Court’s denial

of habeas corpus relief and its

interpretation of the applicable statutes.”

Steele v. Blackman, 236 F.3d 130, 133

(3d Cir. 2001). 

For the reasons elaborated below,

we agree that the District Court properly

rejected Bamba’s interpretation of the

statute as being inapplicable to parolees.

Rather, the District Court’s conclusion that

the statute applies to aliens convicted of an

aggravated felony who are not lawfully

admitted for permanent residence is

supported by the plain language of the

statute, context and legislative history of

the INA, and case law of other circuit

courts. 

II.

“[T]he Immigration Act has never

been a model of clarity,” Chi Thon Ngo v.

INS, 192 F.3d 390, 394 (3d Cir. 1999), and

the provisions at issue in this case are no

exception. Nevertheless, we conclude that

the better interpretation of the statute’s

plain language is that the expedited

removal proceedings apply to all aliens not

admitted for permanent residence,

including parolees such as Bamba, who are

convicted of an aggravated felony. 

8 U.S.C. § 1228(b) provides, in

pertinent part:

(b) Removal of aliens who

are not permanent residents

(1) The Attorney General

may, in the case of an alien

described in paragraph (2),

determine the deportability

of such alien under section

1227(a)(2)(A)(iii) of this

title (relating to conviction

of an aggravated felony) and

issue an order of removal

pursuant to the procedures

set forth in this subsection

or section 1229a of this title.

(2) An alien is described in

this paragraph if the alien—

(A) was not lawfully

admitted for permanent

 

5

 Bamba does not dispute the District

Court’s conclusion that (1) as a parolee he

was not “lawfully admitted” for permanent

residence in the United States at the time

expedited removal proceedings were

commenced against him, and (2) he was

convicted of an “aggravated felony” as

defined in 8 U.S.C. § 1227(a)(2)(A)(iii).

Rather, as already noted, the only issue on

appeal is whether the District Court erred

in its interpretation of the statute. 
5

residence at the time at

which proceedings under

this section commenced; or

(B) had permanent resident

status on a conditional basis

(as described in section

1186a of this title) at the

time that proceedings under

this section commenced.

8 U.S.C. § 1228(b) (emphasis added).6 

Section 1227(a)(2)(A)(iii) provides:

“Any alien who is convicted of an

aggravated felony at any time after

admission is deportable.” (emphasis

added). 

The District Court concluded that

the plain language of § 1228(b) and §

1227(a)(2)(A)(iii) dictates a conclusion

that the expedited removal provision

applies to all aliens convicted of an

aggravated felony who are not lawfully

admitted for permanent residence,

including parolees. See Bamba v. Elwood,

No. 02-8430, at 11 (E.D. Pa. Mar. 31,

2003). The plain language of 8 U.S.C. §

1228(b) does appear to support this

interpretation. Section 1228(b)(1) applies

“in the case of an alien described in

paragraph (2)” who is convicted of an

aggravated felony, 8 U.S.C. § 1228(b)(1),

and paragraph 2 describes such an alien as

one who “was not lawfully admitted for

permanent residence at the time at which

proceedings un der this sectio n

commenced,” 8 U.S.C. § 1228(b)(2).

The wrinkle, however, is that the

language of § 1227(a)(2)(A)(iii) arguably

suggests a contrary result. In support of

his interpretation that § 1228(b) does not

apply to parolees, Bamba argues that §

1228(b)(1) expressly requires that the

“deportability” of an alien be determined

by 8 U.S.C. § 1227(a)(2)(A)(iii), which

provides that to be deportable an alien

must be “convicted of an aggravated

felony any time after admission.” 8 U.S.C.

§ 1227(a)(2)(A)(iii) (emphasis added). 

The District Court rejected

Bamba’s reading of the statute. In

particular, the District Court expressed

concern that under Bamba’s interpretation

the statute would be rendered meaningless,

as no alien would qualify for expedited

removal proceedings. “Expedited removal

under § 1228(b) is applicable only to

aliens not lawfully admitted who are

convicted of an aggravated felony. If, as

petitioner argues, admission is required in

order to authorize expedited removal as an

aggravated felony, § 1228(b) would be a

nullity—no alien would qualify for

expedited removal.” Bamba v. Elwood,

No. 02-8430, at 11 (Mar. 31, 2003).

Bamba contends that the District

Court erroneously concluded that his

 

6

 “The terms ‘admission’ and ‘admitted’

mean, with respect to an alien, the lawful

entry of the alien into the United States

after inspection and authorization by an

immigration officer.” 8 U.S.C. §

1101(a)(13)(A). “An alien who is paroled

under section 1182(d)(5) of this title . . .

shall not be considered to have been

admitted.” 8 U.S.C. § 1101(a)(13)(B).
6

interpretation would render § 1228(b) a

nullity. He argues that § 1228(b) actually

says that it applies to aliens who are “not

lawf ully admitted for permanent

residence,” and that there are many aliens

lawfully admitted for reasons other than

permanent residence. Thus, under

Bamba’s interpretation, § 1228’s expedited

removal process would apply only to

admitted aliens who are not admitted for

permanent residence, such as visitors,

students, and temporary residents. See 8

U.S.C. § 1101(a)(15)(B),(F),(H),(L). 

While Bamba is correct that his

interpretation of the statute would not

literally render the expedited removal

proceeding a “nullity”—that is, the

provision would still apply in certain

circumstances—his interpretation would

still create the anomalous result that the

expedited removal proceedings would only

apply to a limited class of admitted aliens.

As the Government points out, such a

reading would create the perverse result

that hypothetical accomplices of Bamba

who had been admitted as students,

tourists, or another temporary class would

be subject to expedited removal, while

Bamba would not be subject to such

procedures precisely because he was not

legally admitted.7 

We reject such an illogical

interpretation of the statute. Rather, we

agree with the Government and District

Court that the better reading of 8 U.S.C. §

1228(b)’s plain language is that it applies

to aliens convicted of an aggravated felony

who are not lawfully admitted for

permanent residence. 

The Government’s interpretation is

easily reconcilable with the language of §

1227(a)(2)(A)(iii), as incorporated in §

1228(b)(1). Section 1227(a)(2)(A)(iii)’s

 

7

 Bamba argues that the INA contains

two separate expedited removal

proceedings—one for aliens who have not

been admitted, 8 U.S.C. § 1225(b), and

one for aliens who have been admitted, 8

U.S.C. § 1228(b). He argues that there are

cases where aliens who have not been

admitted, such as parolees, would receive

less favorable treatment. For example,

Bamba argues, under § 1225(b), if a

parolee is determined to have

misrepresented a material fact, falsely

claimed U.S. citizenship, or lacks proper

documentation, he can be ordered removed

with no hearing or review. See Appellant

Br. at 26. 

This argument is unpersuasive. To

begin, the plain language of § 1225(b)

suggests that it is inapplicable to parolees.

Section 1225(b)(1) is entitled “Inspection

of aliens arriving in the United States and

certain other aliens who have not been

admitted or paroled.” 8 U.S.C. §

1225(b)(1) (emphasis added). Even

assuming § 1225 does apply to parolees,

the mere fact that under Bamba’s

interpretation there may be a limited

number of circumstances where parolees

might be treated less favorably than

admitted aliens does not render appropriate

a construction of the statute that illogically

provides for generally better treatment to

parolees than admittees. 
7

requirement that the alien must be

“convicted of an aggravated felony any

time after admission” is best read as

limiting the application of the expedited

removal proceedings to those aliens who

have committed an aggravated felony after

entering the United States. In other words,

the word “admission” in this subparagraph

is not to be read as a term of art referring

to a class of aliens formally admitted, but

rather as clarifying that the statute does not

apply to aliens who have committed an

aggravated felony prior to entering this

country. 

We also disagree with Bamba’s

contention that his interpretation comports

with the plain meaning of the statute. At

best, Bamba has established that the

statutory scheme is ambiguous. To the

extent that the statute is silent or

ambiguous, we defer to the agency’s

interpretation and “the question for the

court is whether the agency’s answer is

based on a permissible construction of the

statute.” See Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S.

837, 843 (1984); see also United States v.

Hernandez-Vermudez, 356 F.3d 1011,

1014 (9th Cir. 2004) (concluding that §

1228(b) is ambiguous and deferring to the

Attorney General’s interpretation). It is

well-established that “the BIA’s (and

hence the IJ’s) interpretation of the INA is

subject to established principles of

deference.” Coraggioso v. Ashcroft, 355

F.3d 730, 733 (3d Cir. 2004) (citing INS v.

Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999)). This includes affording Chevron

deference to BIA decisions “giv[ing]

ambiguous statutory terms ‘concrete

meaning through a process of case-by-case

adjudication.’” Aguirre-Aguirre, 526 U.S.

at 425 (quoting INS v. Cardoza-Fonseca,

480 U.S. 421, 448 (1987)); see also Acosta

v. Ashcroft, 341 F.3d 218, 222 (3d Cir.

2003).

In this case, in affirming the IJ’s

decision, the BIA interpreted § 1228(b) as

applying to parolees such as Bamba:

“Nothing in that provision prohibits its

application to parolees, and construing the

provision to forbid its application to

parolees would provide more favorable

treatment for parolees than for lawfully

admitted aliens.” App. Vol. II, at 53

(citing Baran-Reyes [sic]). As elaborated

above, we believe that this is a

“permissible construction of the statute.”

Chevron, 467 U.S. at 843.

Moreover, regulations promulgated

by the Attorney General implicitly support

an interpretation of § 1228(b) as applying

to parolees. Congress has delegated

authority to the Attorney General to

promulgate regulations for proceedings

under § 1228(b). See 8 U.S.C. §

1228(b )(4); see also HernandezVermudez, 356 F.3d at 1015-16. In

Hernandez-Vermudez, the Ninth Circuit

noted that the Attorney General has

enacted regulations, 8 C.F.R. § 238.1,

providing for the application of § 1228(b)

to aliens who are not admitted or paroled.

Hernandez-Vermudez, 356 F.3d at 1015 &

n.6 (deferring to regulation in concluding

that § 1228(b) expedited removal

proceeding applies to illegal immigrants).

While the regulation is arguably not
8

directly applicable in this case because it

applies to aliens who are not admitted or

paroled, the language of the regulation

suggests that the Attorney General has

interpreted “deportable” to include

“paroled” aliens. The regulation provides,

in pertinent part: 

PART 238—EXPEDITED

REMOVA L O F

AGGRAVATED FELONS

. . . .

(b) Pr e limi nar y

consideration and Notice of

Intent to Issue a Final

Administrative Deportation

Order; commencement of

proceedings–

(1) Basis of Service charge.

An issuing Service officer

shall cause to be served

upon an alien a Form I-851,

Notice of Intent to Issue a

Final Adm inistrativ e

Deportation Order (Notice

of Intent), if the officer is

satisfied that there is

sufficient evidence, based

upon questioning of the

alien by an immigration

officer and upon any other

evidence obt aine d, to

support a finding that the

individual:

(i) Is an alien;

(ii) Has not been lawfully

admitted for permanent

residence, or has conditional

permanent resident status

under section 216 of the

Act;

(iii) Has been convicted (as

defined i n s ectio n

101(a)(48) of the Act and as

demonstrated by any of the

documents or records listed

in § 3.41 of this chapter) of

an aggravated felony and

such conviction has become

final; and

(iv) Is deportable under

section 237(a)(2)(A)(iii) of

the Act, including an alien

who has neither been

admitted nor paroled, but

w h o is conclusively

presumed deportable under

section 237(a)(2)(A)(iii) by

operation of section 238(c)

of the Act (“Presumption of

Deportability”).

8 C.F.R. § 238.1 (emphasis added). The

use of the phrase “including an alien who

has neither been admitted nor paroled”

(emphasis added) implicitly suggests an

interpretation of “deportable” under INA §

237(a)(2 )(A)(ii i), 8 U .S.C . §

1227(a)(2)(A)(iii), that includes paroled

aliens. 

In sum, we read the plain language

of § 1228(b) to apply to parolees. To the

extent the statute is ambiguous, we defer

to the BIA’s interpretation, as outlined in

the BIA’s decision in this case and

implicitly in 8 C.F.R. § 238.1, that §

1228(b)’s expedited removal proceedings
9

apply to parolees. 

III. 

The legislative history and

framework of the INA further bolsters our

interpretation of the statute. Admittedly, a

review of the legislative history does not

reveal Congress’s specific intent with

respect to the application of § 1228(b) to

parolees. However, the legislative history

does evince a broad Congressional intent

to expedite the removal of criminal aliens.

“[I]t is beyond cavil that one of Congress’s

principal goals in enacting [the Illegal

Immigration Reform Responsibility Act of

1996 (IIRIRA), Pub. L. No. 104-208, Div.

C, 110 Stat. 3009-546 (1996)] was to

expedite the removal of aliens who have

been convicted of aggravated felonies.”

Zhang v. INS, 274 F.3d 103, 108 (2d Cir.

2001) (citing Moore v. Ashcroft, 251 F.3d

919, 925 (11th Cir. 2001)); see also

Hernandez-Vermudez, 356 F.3d at 1014

(“Congress clearly intended to expedite the

removal of criminal aliens who are not

lawful permane nt residents.”).

“Sometimes legislative history is itself

ambiguous. Not this time. There simply is

no denying that in enacting the Violent

Crime Control and Law Enforcement Act

of 1994,8 and [IIRIRA],9 Congress

intended to expedite the removal of

criminal aliens.” Hernandez-Vermudez,

356 F.3d at 1014 (citing H.R. Conf. Rep.

No. 104-828, at 215 (1996); H.R. Rep. No.

104-469(I), at 12, 107, 118-25 (1996)).

Bamba’s interpretation of the statute as

applying to only a narrow class of admitted

aliens is inconsistent with this broad

Congressional intent to expedite the

removal of criminal aliens. Cf. Zhang,

274 F.3d at 108 (holding in context of 8

U.S.C. § 1252(a)(2)(C) that “[i]n light of

that goal [of expediting the removal of

aliens convicted of aggravated felonies],

we think it is unlikely that Congress meant

to deny judicial review of removal orders

only for aliens who had been lawfully

admitted to the United States and to allow

such review for aggravated felons who had

never been admitted”). Moreover,

Congress’s intent to apply the expedited

proceedings to all aliens who are not

lawfully admitted as permanent residents,

including parolees, is reflected in § 1228’s

title—“Removal of Aliens Who Are Not

Permanent Residents.”10 

 

8

 Pub. L. No. 103-322, Title XIII, §

130004, 108 Stat. 1796, 2026-28 (1994).

 

9

 IIRIRA § 304(c), Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-597 (1996).

 

10 We acknowledge that “the title of a

statute . . . cannot limit the plain meaning

of the text.” Brotherhood of R. R.

Trainmen v. Baltimore & O.R. Co., 331

U.S. 519, 528-29 (1947); see also

Sandoval v. Reno, 166 F.3d 225, 235 (3d

Cir. 1999) (explaining that “a title alone is

not controlling”). However, a title can be

examined “[f]or interpretive purposes . . .

[to] shed light on some ambiguous word or

phrase.” 331 U.S. at 529. In this case, to

the extent that the class of aliens covered

by § 1228’s expedited removal provision is
10

Bamba contends that the framework

of the INA supports his interpretation of 8

U.S.C. § 1228(b). Specifically, he points

to the fact while IIRIRA united the

bifurcated “exclusion” and “deportation”

proceedings into a single “removal”

proceeding,see Bakhtriger v. Elwood, 360

F.3d 414, 415 n.1 (3d Cir. 2004), the Act

still maintains some distinctions between

aliens who have been admitted and are

“deportable” and those aliens who have

not been admitted and are “inadmissible.”

See Appellant Br. at 12-14 (citing, e.g., In

re Rosas-Ramirez, 22 I & N Dec. 616

(BIA 1999); 8 U.S.C. § 1229a(e)(2)).11

Bamba therefore argues that because

Congress used the term “deportability” and

not “inadmissibility” or “deportation and

inadmissibility,” it must be presumed that

Congress specifically intended § 1228(b)’s

expedited administrative removal

proceedings to apply only to “deportable”

aliens, and not paroled aliens like Bamba

who have not been “admitted.” 

The problem, however, is that

Bamba advances no rationale for why

Congress would have intended to preserve

a distinction between “deportable” and

“inadmissible” aliens in the context of

expedited removal of aggravated felons.

As elaborated above, any such distinction

is irrational, applying a less stringent

standard to those aliens who have not been

admitted. Moreover, Bamba’s argument

fails to acknowledge the existence of other

language in § 1228(b) indicating that the

provision was intended to apply to

inadmissible aliens. Recall that the

provision explicitly provides that “[a]n

alien is described in this paragraph if the

alien—(A) was not lawfully admitted for

permanent residence.” 8 U.S.C. §

1228(b)(2)(A) (emphasis added).

IV.

While our Court has not previously

addressed the issue in this case, other

circuit courts considering the question

have uniformly concluded that § 1228’s

expedited removal provision applies to all

aliens not admitted for permanent

residence, including parolees. 

As noted by the District Court, in

Bazan-Reyes v. INS the Seventh Circuit

considered and rejected precisely the same

argument that Bamba now advances. 256

F.3d 600, 604-05 (7th Cir. 2001). In

support of its interpretation of § 1228(b),

the Seventh Circuit explained:

ambiguous, we find it persuasive that

Congress entitled the section “Removal of

Aliens Who Are Not Permanent

Residents.” 8 U.S.C. § 1228(b) (emphasis

added). 

 

11 For example, while the alien has the

burden in an application for admission of

establishing that he is “clearly and beyond

doubt entitled to be admitted and is not

inadmissible,” 8 U.S.C. § 1229a(c)(2)(A),

the government has “the burden of

establishing by clear and convincing

evidence that, in the case of an alien who

has been admitted to the United States, the

alien is deportable,” 8 U.S.C. §

1229a(c)(3)(A). 
11

Nothing in that section

prohibits its application to

parolees, and, as the

government points out,

construing the statute to

forbid its application to

parolees would provide

more favorable treatment for

parolees than for lawfully

admitted aliens. We cannot

believe that Congress

intended such a result. We

find it more plausible that

the ref e rence to §

1227(a)(2)(A)(iii) simply

operates to incorporate the

definition of aggravated

felony set out in that section

to elucidate which nonlawful resident aliens may

be placed in expedited

proceedings.

Id. at 605.12

In a slightly different context, the

Ninth Circuit has recently joined the

approach taken by the Seventh Circuit,

rejecting the argument that immigrants

who are not “admitted” are exempt from §

1228(b)’s expedited removal of aggravated

felons. See Hernandez-Vermudez, 356

F.3d 1011.

13 While acknowledging that

the statute “can be read” to exempt aliens

who are not admitted, the Ninth Circuit

concluded that such a reading is at odds

with the language and the legislative

history of the statute. See id. at 1014.14 

Bamba points to no authority from

 

12 Bamba’s attempt to distinguish

Bazan-Reyes on the ground that it has

been overruled by subsequent Seventh

Circuit case law is unpersuasive. The case

cited by Bamba in support of this

proposition—Dimenski v. INS, 275 F.3d

574 (7

th Cir. 2001)—not only does not

explicitly overrule Bazan-Reyes but is

based on immigration law prior to the

enactment of IIRIRA.

 

13 In Hernandez-Vermudez, the Ninth

Circuit examined the meaning of the

statute in the context of a claim that an

illegal immigrant, rather than a parolee,

was exempt from the expedited removal

provision because he was not “admitted.”

The analysis with respect to interpretation

of the statutory scheme, however, is

equally persuasive in the context of

parolees.

 

14 The position of the Seventh and

Ninth Circuits is also supported by the

Second Circuit’s decision in Zhang v.

INS. In Zhang, the court examined the

scope of § 1225(a)(2)(C)’s jurisdictionstripping provision for aggravated felons.

The appellant argued, as here, that

§1225 (a)(2 )(C)’s referenc e t o

§ 1 227(a)(2)(A )(iii) limited th e

jurisdiction-stripping provisio n ’s

application to aliens who were admitted.

The court rejected this interpretation. 274

F.3d at 107-08. Rather, the Second Circuit

concluded that the reference was included

“not for its description of persons but

solely for its cataloguing of crimes.” Id. at

108.
12

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.