Bamba v. Dist Dir INS Phila

• Court: Court of Appeals for the Third Circuit
• Decided: April 27, 2004
• Docket: 03-2275
• Status: Published

Opinion

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Bamba v. Dist Dir INS Phila Precedential or Non-Precedential: Precedential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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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.