Bamba v. Riley, 03-2275.

• Decision Date: 27 April 2004
• Docket Number: No. 03-2275.,03-2275.
• Citation: 366 F.3d 195
• Parties: Karim BAMBA, Appellant v. William F. RILEY, Jr.,<SMALL><SUP>*</SUP></SMALL> Interim District Director of the Bureau of Immigration and Customs Enforcement.
• Court: U.S. Court of Appeals — Third Circuit

366 F.3d 195

Karim BAMBA, Appellant v. William F. RILEY, Jr.,^* Interim District Director of the Bureau of Immigration and Customs Enforcement.

No. 03-2275.

United States Court of Appeals, Third Circuit.

Submitted March 25, 2004.

April 27, 2004.

Ann A. Ruben, Derek W. Gray, Steel, Rudnick & Ruben, Philadelphia, PA, 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, Philadelphia, PA, for Appellee.

Before ROTH, AMBRO and CHERTOFF, Circuit Judges.

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 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 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 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 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, 252 F.Supp.2d 195, 2003 WL 1563235, 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 under this section 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...