                                                                                                                           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Precedential or Non-Precedential: Precedential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 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.




                                             12
