G.S. v. Holder, Jr. , 373 F. App'x 836 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 15, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
G.S.,
Petitioner,
v. No. 09-9526
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
Petitioner G.S., a citizen of Mexico, seeks review of a Final Administrative
Removal Order issued by the Department of Homeland Security. For the reasons
that follow, we take jurisdiction under 8 U.S.C. § 1252(a), and we deny the
petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Petitioner entered the United States in 1991 without inspection. In 1993 he
was convicted in California state court for Possession/Purchase of a Controlled
Substance for Sale, which was cocaine, and sentenced to 150 days in jail and two
years’ probation. After his release, petitioner continued to live in the United
States illegally. He was arrested in 2009 on a concealed-weapons charge and
eventually released into the custody of the Bureau of Immigration and Customs
Enforcement (ICE). On March 25, 2009, while in ICE custody, the Department of
Homeland Security (DHS) served him with a Notice of Intent to Issue a Final
Administrative Removal Order (NOI). In the NOI, DHS claimed that petitioner’s
1993 cocaine conviction was an “aggravated felony” as defined in 8 U.S.C.
§ 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as defined in section
924(c) of Title 18).” Accordingly, DHS alleged petitioner was removable under
8 U.S.C. § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is convicted
of an aggravated felony at any time after admission is deportable.” 1
The NOI was issued pursuant to 8 U.S.C. § 1228(b). As relevant to
petitioner, § 1228(b) provides that, in the case of an alien who “was not lawfully
admitted for permanent residence” when § 1228(b) proceedings commenced, and
1
There is no analytical distinction between the terms “deportable” and
“removable” or any of their variants, and we use them interchangeably. See
Hamilton v. Gonzales, 485 F.3d 564, 565 n.2 (10th Cir. 2007).
-2-
who has been convicted of an aggravated felony, “[t]he Attorney General may . . .
determine [his] deportability . . . under section 1227(a)(2)(A)(iii) . . . and issue an
order of removal pursuant to the procedures set forth in this subsection or
[8 U.S.C. §] 1229a.” 8 U.S.C. § 1228(b). There are a number of distinctions
between the removal procedures under § 1228(b) and § 1229a, two of which are
relevant here. First, proceedings under § 1228 involve an expedited
determination of removability by an immigration service officer, see generally
8 C.F.R. § 238.1, whereas an immigration judge (IJ) conducts removal
proceedings under § 1229a, see 8 U.S.C. § 1229a(a)(1). Second, an alien in
§ 1228(b) proceedings is not eligible for any discretionary relief from removal.
See 8 U.S.C. § 1228(b)(5).
In signing the NOI’s certificate of service, petitioner marked a box
requesting withholding or deferral of removal under 8 U.S.C. § 1231(b)(3)
(hereafter referred to as “restriction on removal”) and under the United Nations
Convention Against Torture (CAT). As permitted by 8 C.F.R. § 238.1(c), he filed
a timely response to the NOI on April 2, 2009, 2 requesting the evidence against
2
The Certified Administrative Record respondent initially supplied to the
court (including the documents attached to respondent’s brief as a supplemental
certified record) did not contain petitioner’s request for the evidence against him.
But the request is contained in the Supplemental Certified Administrative Record
filed in response to this court’s orders regarding the state of the record. The
request is dated April 2, 2009, and indicates that it was sent by facsimile. As
respondent has provided no argument to the contrary, we take it as now conceded
that petitioner filed the request on that date.
-3-
him, including the charging document from the 1993 cocaine conviction, in order
to determine whether to challenge DHS’s position that the conviction falls within
the statutory definition of an aggravated felony. He also reiterated his intent to
seek restriction on removal and CAT relief, and he objected to his detention.
On April 13, 2009, ICE served petitioner with a copy of the Final
Administrative Removal Order (FARO), which ordered him removed to Mexico.
Three days later, petitioner filed an emergency motion to rescind the FARO on
the grounds that the government had not responded to his request for the evidence
against him and that an examination of the record of conviction was necessary in
order to challenge whether his 1993 conviction was an aggravated felony. He
also requested to be placed in removal proceedings under § 1229a instead of
§ 1228(b), on the ground that he was not an alien described under § 1228(b).
Petitioner claims that on the same day, ICE sent the evidence against him. The
record contains no ruling on the motion to rescind.
On May 12, 2009, twenty-nine days after issuance of the FARO, petitioner
filed the present petition for review. Also on that date, he received a
reasonable-fear hearing before an asylum officer based on his expressed fear of
persecution or torture if he were removed to Mexico. See generally 8 C.F.R.
§ 208.31 (establishing reasonable-fear hearing procedure for aliens ordered
removed under, inter alia, § 1228(b)). The asylum officer determined that
petitioner established a reasonable fear of torture and referred the matter to an IJ
-4-
pursuant to 8 C.F.R. § 208.31(e) for full consideration of petitioner’s request for
relief from removal. That regulation permits an IJ to consider a § 1228(b) alien’s
request for restriction on removal and CAT relief, but not the validity of the
underlying FARO. On December 7, 2009, after a hearing, the IJ denied relief.
Petitioner waived review of the IJ’s decision by the Board of Immigration
Appeals (BIA or Board) that is available under 8 C.F.R. § 208.31(e), and on
December 10, 2009, he was removed to Mexico.
II. Discussion
In his petition for review and supporting briefs, petitioner challenged his
placement in § 1228(b) expedited removal proceedings on the ground that he is
not an alien described in § 1228(b). He also claimed he was denied due process
when DHS issued the FARO without providing him an opportunity to challenge
whether his 1993 conviction qualifies as an aggravated felony. He further
contested his detention.
In a response brief, respondent claimed we lack jurisdiction over the
FARO, arguing that petitioner’s pursuit of administrative relief from removal
through the reasonable-fear hearing process rendered the FARO a nonfinal order
of removal. Respondent also challenged venue and, in the alternative, contested
each of petitioner’s substantive arguments.
In view of the jurisdictional issue, we abated the petition for review until
the reasonable-fear proceedings ended. After those proceedings concluded, we
-5-
reinstated the petition and ordered supplemental briefs regarding whether
petitioner’s removal mooted his petition for review. We also requested that the
parties supplement the record provided to the court. These matters are complete,
so we turn to the issues.
As discussed below, we first assume, without deciding, that petitioner’s
pursuit of administrative relief from the FARO rendered the FARO nonfinal at the
time he filed his petition for review, and we conclude that completion of the
reasonable-fear process cured any jurisdictional defect in the petition due to
prematurity. We then conclude that petitioner exhausted his administrative
remedies regarding the procedural safeguards afforded under § 1228(b) by timely
filing a request for the evidence against him. We next hold that venue is proper
and that petitioner’s removal has not mooted his petition. Finally, on the merits,
we conclude that respondent issued the FARO before providing petitioner with
the evidence against him and an opportunity to challenge whether his conviction
qualifies as an aggravated felony, but further conclude that the error was harmless
because the conviction qualifies as a “drug trafficking crime (as defined in section
924(c) of Title 18)” under 8 U.S.C. § 1101(a)(43)(B). Finally, we reject
petitioner’s argument that it was improper to place him in expedited removal
proceedings under § 1228(b) because he is not an alien described in that statute.
-6-
A. Jurisdiction
This court’s jurisdiction over a petition for review of a removal order is
limited to “a final order of removal.” 8 U.S.C. § 1252(a)(1). Congress has
provided two contingencies by which a removal order can become final—when
either (1) the Board affirms an order determining that an alien is removable or
(2) upon “the expiration of the period in which the alien is permitted to seek
review of such order by the Board,” whichever is earlier. 8 U.S.C.
§ 1101(a)(47)(B). Both contingencies depend upon the availability of BIA
review, but a FARO is not appealable to the BIA—review lies only with the
courts of appeals. See 8 U.S.C. § 1228(b)(3) (“The Attorney General may not
execute [a FARO] until 14 calendar days have passed from the date that such
order was issued, unless waived by the alien, in order that the alien has an
opportunity to apply for judicial review under section 1252 of this title.”); id.§ 1252(a)(1), (a)(5) (final orders of removal are appealable to courts of appeals).
Because there is no opportunity for BIA review, neither of the contingencies in
§ 1101(a)(47)(B) can occur. Thus, the statutory definition of finality provides no
helpful guidance in determining whether the pursuit of administrative relief from
removal via a reasonable-fear proceeding renders a FARO nonfinal until the
administrative proceedings have concluded. Indeed, respondent concedes that had
petitioner not sought further administrative remedies in the form of restriction on
removal and CAT relief, the FARO would have been final and appealable directly
-7-
to this court at the time it was issued. See Resp. Br. at 19 & n.7. Thus, there is
nothing inherently nonfinal about the FARO itself, and its title (“Final
Administrative Removal Order”) suggests finality.
Nevertheless, respondent argues that the FARO was not final because,
under 8 C.F.R. §§ 208.5(a) and 1003.6(a), it could not have been executed while
petitioner’s restriction and CAT claims remained the subject of administrative
proceedings. Respondent also contends that completion of the administrative
proceedings did not cure the FARO’s nonfinality because the petition for review
was a nullity at the time it was filed. Instead, respondent maintains, the FARO
became final only when petitioner waived BIA review of the IJ’s adverse decision
on his claims for relief from removal (sometime between December 7 and 10,
2009), and this court lacks jurisdiction because petitioner failed to file a timely
petition for review thereafter.
It appears that no court has ruled on the precise issue presented here:
whether a FARO is rendered nonfinal by an alien’s election to pursue relief from
the FARO through the reasonable-fear process of 8 C.F.R. § 238.1. We need not
decide the matter today. Even if the FARO was not final when issued due to
petitioner’s election to pursue further administrative relief under § 238.1, we
conclude that completion of the administrative proceedings cured any
jurisdictional defect in the petition for review that might be due to prematurity.
First, the relevant statutory provision, 8 U.S.C. § 1252(b)(1), is titled “Deadline”
-8-
and reads in its entirety: “The petition for review must be filed not later than 30
days after the date of the final order of removal.” This provision sets a filing
deadline 30 days after a final removal order is entered, compliance with which is
“mandatory and jurisdictional.” Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227
(10th Cir. 2003) (quotation omitted). But the provision is silent with respect to
petitions for review filed before the issuance of a final order of removal. While
the ordinary course would be to await a final removal order in order to more
precisely challenge it, § 1252(b)(1), by its plain terms, does not erect a
jurisdictional bar to a petition filed prior to the date of the final order of removal;
it speaks only to late-filed petitions.
Second, the parties have not pointed us to, nor have we found, any cases
that have considered whether a petition for review of a FARO, filed after a FARO
issues but while an alien remains in the reasonable-fear process, ripens upon
completion of the reasonable-fear process. 3 The cases identified by respondent
3
The Seventh Circuit addressed a related issue in Eke v. Mukasey, 512 F.3d
372 (7th Cir. 2008). In Eke, the petitioner filed a petition for review after the
conclusion of the reasonable-fear process, which was more than thirty days after
the FARO issued. The court concluded, with little analysis, that it had
jurisdiction to review the FARO despite the fact that the petition was untimely
with regard to it because the agency was not yet through with petitioner’s claims.
Id. at 377-78. As we read Eke, the case does not stand for the broad proposition
respondent reads into it, that the proper procedure for petitioning for review of a
FARO is to await conclusion of the reasonable-fear process, at which time the
FARO becomes final along with any decision on an alien’s claims for relief from
removal. Therefore, Eke sheds little light on the question presented here.
-9-
have considered whether a “premature” petition for review can ripen in
non-FARO circumstances, and the circuits have reached different conclusions. In
Lewis v. Gonzales, 481 F.3d 125, 128-29 (2d Cir. 2007), the Second Circuit
considered its jurisdiction over a petition for review that was filed after an IJ had
issued a removal order but before the BIA had ruled on a pending appeal from
that order. The court held that it had jurisdiction over such “otherwise premature
petitions, notwithstanding the lack of a later-filed, timely petition, when ‘the BIA
has since affirmed petitioner’s removal order and the respondent has not shown
prejudice.’” Id. at 129 (quoting Foster v. INS, 376 F.3d 75, 77 (2d Cir. 2004)).
The court explained that regardless of whether the premature petition was
considered to incorporate the later-filed final order, or whether the court granted
the petitioner’s motion to amend the filing date of this petition, the result was the
same: the court had jurisdiction. Id.Three other cases respondent identifies fall on the other side of the fence.
In Moreira v. Mukasey, 509 F.3d 709, 712-14 (5th Cir. 2007), the Fifth Circuit
considered Lewis but held that a petition filed while an alien’s appeal of an IJ’s
removal order was pending before the BIA was premature and did not ripen upon
the BIA’s dismissal of the appeal. In Jaber v. Gonzales, 486 F.3d 223, 228-29
(6th Cir. 2007), the Sixth Circuit reached the same conclusion with respect to a
petition for review filed while an appeal of an IJ’s denial of a motion to reopen
was pending before the BIA, which ultimately denied the appeal. And in Brion v.
-10-
INS, 51 F. App’x 732, 733 (9th Cir. 2002), the Ninth Circuit concluded it lacked
jurisdiction over a petition for review of a BIA order reversing an IJ’s grant of
suspension of removal and remanding to an IJ for further proceedings. The court
reasoned that “a premature petition is a nullity because there is no final
deportation order to review,” and explained that “the fact that the BIA ultimately
issued a final order of deportation,” which was apparently in the form of an
answer to a question the IJ certified to the Board, does not “cure a petition that
was filed prematurely.” Id. & n.1 (quotation omitted). 4
The common, material feature these four cases share is that, at the time the
petition for review was filed, the matter was subject to further administrative
review by either the Board (Lewis, Moreira, and Jaber) or both an IJ and the
Board (Brion). In contrast here, a FARO is not subject to IJ or BIA review.
Moreover, petitioner has not conceded removability. In light of these facts,
4
Respondent also relies on two other cases in which courts concluded that
jurisdiction was lacking where the BIA reversed an IJ decision and remanded for
further consideration. See Mahecha-Granados v. Holder, 324 F. App’x 735, 738
(10th Cir. 2009) (applying the administrative-remand doctrine and refusing to
“engage in piecemeal review” of the BIA’s reversal of an asylum decision while
the IJ had before him claims seeking “other impediments” to removal); Chupina
v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) (declining to exercise jurisdiction over
BIA order that reversed grant of asylum and remanded for consideration of claims
for relief from removal because BIA decision was not final within meaning of
8 U.S.C. § 1101(a)(47)(B)(i)). Here, administrative remand is not
implicated—neither the IJ nor the BIA have authority to revisit the FARO during
the reasonable-fear proceeding—and as stated above, a FARO is not amenable to
the statutory definitions of finality set out in § 1101(a)(47)(B). We therefore
view these cases as unhelpful.
-11-
combined with the lack of any statutory prohibition against filing a petition for
review prior to the entry of a final order of removal, we will adapt the Second
Circuit’s reasoning in Lewis and hold that a petition for review filed after a FARO
has issued but before an alien has completed the reasonable-fear process ripens
upon completion of that process, provided the government has shown no prejudice
arising from the timing of the petition. In this case, respondent has shown no
prejudice, so we take jurisdiction. We reiterate that our analysis is based on an
assumption that the FARO was not final when issued because petitioner elected to
pursue further administrative relief in the reasonable-fear process. And we
explicitly leave open the question whether a “premature” petition in other removal
contexts ripens once administrative remedies are exhausted.
B. Exhaustion
Although not raised by the parties, we briefly consider exhaustion because
the failure to exhaust administrative remedies is jurisdictional with respect to
removal orders. See 8 U.S.C. § 1252(d)(1); Batrez Gradiz v. Gonzales, 490 F.3d
1206, 1209 (10th Cir. 2007). An alien’s failure to file a timely response to an
NOI bars judicial review of whether he received the procedural safeguards of
§ 1228(b) because it is a procedural error that could have been corrected by the
agency. Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir. 2006). Because the
record indicates that petitioner’s request for the evidence against him was filed
within the time limit of 8 C.F.R. § 238.1(b)(2)(i), see supra, n. 2, we conclude
-12-
that he exhausted administrative remedies with respect to the procedural due
process issue at the heart of our merits disposition.
C. Venue
Respondent correctly states that the proper venue for a petition for review
is in “the court of appeals for the judicial circuit in which the immigration judge
completed the proceedings.” 8 U.S.C. § 1252(b)(2). But his argument that venue
is improper in this circuit because petitioner’s proceedings are still pending
before an IJ has lost all force since an IJ in this circuit has completed petitioner’s
proceedings.
D. Mootness
Having established our statutory jurisdiction and venue, we next consider
our constitutional jurisdiction, specifically whether the petition for review has
become moot by virtue of petitioner’s removal to Mexico. Removal does not
create a statutory bar to review of a removal order, but we must be satisfied that
there is still a live case or controversy. See Tapia Garcia v. INS, 237 F.3d 1216,
1217 (10th Cir. 2001). In responding to our order to show cause, petitioner
inexplicably failed to address mootness, arguing instead this court’s statutory
jurisdiction. Commendably, respondent has acknowledged that under Tapia
Garcia, id. at 1218, this matter is not moot given that there are collateral
consequences arising from petitioner’s removal, including a permanent bar to
admissibility (absent respondent’s consent) because his removal was based on a
-13-
conviction for an aggravated felony, see 8 U.S.C. § 1182(a)(9)(A)(ii)-(iii). We
agree that there are sufficient collateral consequences arising from petitioner’s
removal, and conclude that his petition for review is not moot. However, because
petitioner is no longer in ICE custody and the record does not support application
of any of the exceptions to the mootness doctrine, 5 any issue pertaining to the
legality of his detention is now moot. See Ferry v. Gonzales, 457 F.3d 1117,
1132 (10th Cir. 2006) (holding that release from custody mooted habeas petition
where the only collateral consequences arose from removal order); Riley v. INS,
310 F.3d 1253, 1256-57 (10th Cir. 2002) (same where record was insufficient to
support mootness exception for actions capable of repetition yet evading review).
E. Merits
With jurisdiction and venue firmly established, we now turn to the merits
of the petition for review. Because DHS ordered petitioner removed by reason of
his commission of an aggravated felony, our jurisdiction is limited to
constitutional claims and questions of law. See Abiodun v. Gonzales, 461 F.3d
1210, 1214-15 (10th Cir. 2006) (discussing jurisdictional limitations under
8 U.S.C. § 1252(a)(2)(C) and (D)).
5
Exceptions to mootness include whether “(1) secondary or ‘collateral’
injuries survive after resolution of the primary injury; (2) the issue is deemed a
wrong capable of repetition yet evading review; (3) the defendant voluntarily
ceases an allegedly illegal practice but is free to resume it at any time; or (4) [a
matter] is a properly certified class action suit.” Riley v. INS, 310 F.3d 1253,
1257 (10th Cir. 2002) (quotation omitted).
-14-
We first address petitioner’s due process argument that DHS issued the
FARO prematurely. By regulation, once an NOI is issued, an alien has ten days
(thirteen days if service is by mail) to file a response requesting the evidence
against him and, upon receipt of that evidence, another ten or thirteen days to file
a response to the charges in the NOI. See 8 C.F.R. § 238.1(c). Petitioner filed his
request for the evidence against him on April 2, 2009, within the period permitted
by the regulation. Therefore, DHS’s issuance of the FARO prior to providing
petitioner with the evidence against him and a chance to file a final response to
the charges in the NOI was premature.
In order to prevail on a due process claim, however, petitioner must show
prejudice. See Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009). Based on
this requirement, respondent contends there is no reversible error in this case
because petitioner failed to argue in his opening brief that he was prejudiced by
the premature issuance of the FARO. While this allegation is accurate, petitioner
argued in his reply brief that his conviction does not qualify as an aggravated
felony. Ordinarily, the failure to raise an issue in an opening brief waives
consideration of that issue. See Jurado-Gutierrez v. Greene, 190 F.3d 1135,
1147 n.11 (10th Cir. 1999). But we retain discretion to overlook waiver
“particularly when we are presented with a strictly legal question the proper
resolution of which is beyond doubt or when manifest injustice would otherwise
result.” Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992) (discussing
-15-
exceptions to waiver in context of issue not raised in district court). We do so
here because whether petitioner’s 1993 conviction qualifies as an aggravated
felony is a “strictly legal question the proper resolution of which is beyond
doubt,” id.Petitioner was convicted under California Health & Safety Code § 11351,
which criminalizes possession or purchase of controlled substances for sale,
including cocaine, and authorizes two, three, or four year’s imprisonment. This
conviction most likely qualifies as an aggravated felony under the first, broader
phrase of the definition in § 1101(a)(43)(B), “illicit trafficking in a controlled
substance,” because it was a felony and, as petitioner concedes, involved a
trafficking component. See Garcia v. Atty. Gen., 462 F.3d 287, 291 (3d Cir.
2006) (discussing these elements of the “illicit trafficking route” to determining
whether a conviction qualifies as an “aggravated felony” under § 1101(a)(43)(B)).
However, we need not, and do not, take this route to our conclusion. Instead, we
analyze only whether petitioner’s 1993 conviction falls within § 1101(a)(43)(B)’s
narrower subcategory of a “drug trafficking crime (as defined in [18 U.S.C.
§ 924(c)],” using the categorical approach. See Nijhawan v. Holder, 129 S. Ct.
2294, 2300 (2009) (categorizing trafficking offenses under § 1101(a)(43)(B) as
“generic crimes” warranting a categorical approach). Under the categorical
approach, we can “look only to the statutory definitions of the prior offenses, and
not to the particular facts underlying those convictions” in order to determine
-16-
whether an offense qualifies as an aggravated felony. Vargas v. Dep’t of
Homeland Sec., 451 F.3d 1105, 1108 (10th Cir. 2006) (alteration and quotation
omitted).
Petitioner does not dispute that his state conviction for Possession/Purchase
of a Controlled Substance for Sale, here possession of cocaine for sale, is
analogous to an offense under 21 U.S.C. § 841(a), a provision of the Controlled
Substances Act (CSA) that makes it unlawful to possess with intent to distribute
certain controlled substances, including cocaine. His contention is that the
offense would not be punishable as a felony under § 841 due to the quantity of
cocaine petitioner possessed with intent to sell. Petitioner argues that the court
should first consider the United States Sentencing Guidelines (Guidelines) range
of 6-12 months that he claims is applicable to the quantity of cocaine involved,
and only then determine that his state conviction would not be a felony under the
CSA.
We reject this argument. Our analysis begins with 18 U.S.C. § 924(c), to
which the definition of “aggravated felony” in § 1101(a)(43)(B) refers for a
definition of a “drug trafficking crime.” Section 924(c)(2) defines “drug
trafficking crime” as “any felony punishable under [inter alia] the Controlled
Substances Act (21 U.S.C. [§] 801 et seq.).” And a “felony” for purposes of
Title 18 is defined as an offense for which “the maximum term of imprisonment
authorized” is more than one year. 18 U.S.C. § 3559(a)(1)-(5). The Supreme
-17-
Court has clarified that “a state offense constitutes a ‘felony punishable under the
Controlled Substances Act’ only if it proscribes conduct punishable as a felony
under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006). The Court
also stated that “for purposes of § 924(c)(2) the crimes the CSA defines as
‘felonies’ are those crimes to which it assigns a punishment exceeding one year’s
imprisonment.” Id. at 56 n.7.
Notably, neither § 3359(a) nor Lopez says anything about consideration of
the applicable sentencing range under the Guidelines when determining the
maximum term of imprisonment authorized or the punishment assigned by the
statute of conviction and penalty. Thus, there is no merit to petitioner’s argument
that the court should first consider the Guidelines sentencing range of 6-12
months that he claims is applicable to his offense and then determine that his state
conviction would not be a felony under the CSA because it was subject to a term
of imprisonment of one year or less. Instead, to determine whether a state
offense, if charged under the CSA, would be a felony, the court looks to the
maximum term of imprisonment authorized under the relevant CSA provision.
With respect to cocaine, a Schedule II controlled substance, see 21 U.S.C.
§ 812(c), the CSA authorizes several different maximum terms of imprisonment
depending on the quantity involved, but all are in excess of one year. See
21 U.S.C. §§ 841(b)(1)(A)(ii) (maximum term of life if five kilograms or more),
(b)(1)(B)(ii) (maximum term of forty years if 500 grams or more), and (b)(1)(C)
-18-
(maximum term of twenty years for any quantity up to 500 grams). Accordingly,
regardless of the amount of cocaine in petitioner’s 1993 conviction, that
conviction qualifies as a felony punishable under the CSA and is therefore a
“drug trafficking crime” and an “aggravated felony” within the meaning of
8 U.S.C. § 1101(a)(43)(B).
We next consider petitioner’s argument that it was improper to place him in
expedited removal proceedings under 8 U.S.C. § 1228(b) because he is not an
alien described in that statute. More specifically, he first claims that expedited
removal proceedings under § 1228 may be initiated only at the end of an alien’s
incarceration for the offense that qualifies as an aggravated felony (in his case,
some time in 1993), while here such proceedings were initiated after his release
from custody for another matter in 2009. This argument is based on a reading of
a different statutory section, 8 U.S.C. § 1228(a), which pertains to the initiation of
expedited removal proceedings against criminal aliens while in custody. Section
1228(b) is broader in that it applies to aliens who have committed an aggravated
felony and, inter alia, were “not lawfully admitted for permanent residence at the
time at which proceedings under this section commenced.” 8 U.S.C.
§ 1228(b)(2)(A). 6 Those conditions are met here, as petitioner was not lawfully
admitted for permanent residence when his § 1228(b) proceedings commenced.
6
Section 1228(b) also applies to aliens who “had permanent residence on a
conditional basis (as described in [8 U.S.C. §] 1186a” when “proceedings
commenced under [§ 1228(b)].” 8 U.S.C. § 1228(b)(2)(B).
-19-
Thus, petitioner has raised no valid argument that it was improper for DHS to
initiate expedited removal proceedings under § 1228(b) long after his release from
custody for his 1993 conviction.
Second, petitioner claims that because he has not been admitted to the
United States, he does not fall under § 1227(a)(2)(A)(iii). Again, that section
renders an alien removable if he “is convicted of an aggravated felony at any time
after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). Therefore, he
argues, he cannot be placed in § 1228(b) removal proceedings, which pertain to
such aliens. We disagree. All three circuits that have addressed challenges to the
reference to “admission” in § 1227(a)(2)(A)(iii) (or the term “admitted” in the
introductory paragraph of § 1227(a) 7) have concluded that even aliens who have
not been admitted to the United States may be placed in § 1228(b) removal
proceedings. See Bamba v. Riley, 366 F.3d 195, 199-204 (3d Cir. 2004)
(considering parolee); United States v. Hernandez-Vermudez, 356 F.3d 1011,
1013-15 (9th Cir. 2004) (considering alien who entered without inspection);
Bazan-Reyes v. INS, 256 F.3d 600, 604-05 (7th Cir. 2001) (considering parolee).
We agree with their reasoning and need not replicate it in full here. Suffice it to
say that § 1228(b) applies to aliens “not lawfully admitted for permanent
7
The introductory paragraph of § 1227(a) provides: “Any alien (including
an alien crewman) in and admitted to the United States shall, upon the order of
the Attorney General, be removed if the alien is within one or more of the
following classes of deportable aliens[.]”
-20-
residence” at the time expedited removal proceedings under that section began,
8 U.S.C. § 1228(b)(2)(A), and its cross-reference to § 1227(a)(2)(A)(iii) simply
“mean[s] that, among persons who are not permanent residents, only aggravated
felons are subject to expedited administrative removal,” regardless of whether
they were previously admitted. Hernandez-Vermudez, 356 F.3d at 1013. It is
irrational to think Congress meant to afford more favorable treatment to an alien
who enters illegally than one lawfully admitted. See Bamba, 366 F.3d at 203;
Bazan-Reyes, 256 F.3d at 605. Thus, because we have concluded that petitioner
is an aggravated felon within the meaning of § 1227(a)(2)(A)(iii), he is an alien
described in § 1228(b), and it was not improper to place him in expedited removal
proceedings under that statute.
III. Conclusion
For the foregoing reasons, the petition for review is DENIED. Petitioner’s
Motion to Seal is granted to the extent he requests to be identified in court
documents only by his initials. That motion is denied as moot to the extent he
requests sealing or redaction of any party filings in this case that may be made
publicly available, as this court’s policy in immigration cases is to prevent public
-21-
access to all documents the parties have filed with the court either in electronic
form or in hard copy, including the certified administrative record.
Entered for the Court
John C. Porfilio
Circuit Judge
-22-