Bayron Us-Zepeda v. Eric Holder, Jr. , 446 F. App'x 562 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2353
BAYRON ARMANDO US-ZEPEDA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 13, 2011 Decided: September 15, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Aroon Roy Padharia, Washington, D.C., for Petitioner. Tony
West, Assistant Attorney General, Emily Anne Radford, Assistant
Director, Craig A. Newell, Jr., Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bayron Armando Us-Zepeda, a native and citizen of
Guatemala, petitions for review of a final administrative order
of expedited removal issued by U.S. Immigration and Customs
Enforcement (“ICE”). For the reasons set forth below, we deny
the petition for review.
Us-Zepeda argues that he was improperly placed in
expedited removal proceedings under 8 U.S.C. § 1228(b) (2006)
because he is not an alien described in that statute.
Specifically, he contends that expedited proceedings only apply
to non-permanent resident aliens who are removable as aggravated
felons under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). That
section, in turn, provides that “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.”
§ 1227(a)(2)(A)(iii) (emphasis added). Us-Zepeda reasons that,
because he was never admitted to the United States, he cannot be
considered a deportable aggravated felon as defined in the
statute and therefore cannot be subject to expedited removal
proceedings.
Based on our review of the record and applicable law,
we find that it was not improper for ICE to place Us-Zepeda in
expedited removal proceedings pursuant to § 1228(b). See
Bamba v. Riley, 366 F.3d 195, 199-204 (3d Cir. 2004); United
States v. Hernandez-Vermudez, 356 F.3d 1011, 1013-15 (9th Cir.
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2004); Bazan-Reyes v. INS, 256 F.3d 600, 604-05 (7th Cir. 2001).
To the extent that the statute is ambiguous, we find that the
Attorney General’s interpretation of § 1228(b) is entitled to
deference under Chevron v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). See 8 C.F.R. § 238.1(b)(1)(iv) (2011)
(expressly providing for the application of § 1228(b) to aliens
who were not admitted or paroled); Bamba, 366 F.3d at 201;
Hernandez-Vermudez, 356 F.3d at 1014-15 & n.6.
Accordingly, we deny the petition for review. * We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
*
To the extent that Us-Zepeda contends that his placement
in expedited removal proceedings violated his right to due
process because he may have been entitled to adjustment of
status through his father, we find this argument without merit.
See Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006)
(“[B]ecause Dekoladenu has neither a liberty nor a property
interest in adjustment of status, he cannot make out a due
process violation.”), overruled on other grounds by Dada v.
Mukasey, 554 U.S. 1 (2008).
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