G.S. v. Holder, Jr.

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not binding precedent, except under the doctrines of law of the case, res judicata,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).

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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.

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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

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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

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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.

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 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

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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”

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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.

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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.

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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.

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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

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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

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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).

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 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

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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

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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

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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)

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(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).

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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[.]”

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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

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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

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