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Tima v. Attorney General, United States

United States Court of Appeals, Third Circuit

September 6, 2018


          Argued April 30, 2018

          On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A072-378-036) Immigration Judge: Rosalind K. Malloy

          Matthew J. Archambeault, Esq. [ARGUED] Corpuz & Archambeault Counsel for Petitioner

          Chad A. Readler, Acting Assistant Attorney General Douglas E. Ginsburg, Assistant Director Karen L. Melnik, Trial Attorney [ARGUED] United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges



         In the Immigration and Nationality Act, a waiver-of-removal provision is limited to waiving some grounds of removal without waiving all others that flow from the same facts. Here, a nonimmigrant student committed marriage fraud. His fraud made him inadmissible and was a crime involving moral turpitude. So he was removable based on his inadmissibility as well as his conviction, and was ordered to be removed.

         Under the Act, some removal charges are based on grounds of inadmissibility and others are not. The Attorney General may waive a removal charge that is based on inadmissibility for misrepresenting a material fact to gain admission. If he does so, the Act automatically extends that fraud waiver to other removal provisions based on "grounds of inadmissibility directly resulting from such fraud or misrepresentation." 8 U.S.C. § 1227(a)(1)(H). But a removal charge based on a post-admission crime is not based on a "ground of inadmissibility." So the fraud waiver does not reach it. We will thus deny the petition for review.

         I. Background

         Gordon Ndok Tima, a native and citizen of Cameroon, entered the United States in 1989 on a nonimmigrant student visa. That visa expired. To stay past his student-eligibility period, he entered into a sham marriage with Sandra Marr. Law enforcement got wind of the fraud, and Marr confessed. Tima then pleaded guilty to a felony charge of making false statements, admitting to the sham. But the government did not promptly issue a notice to appear. So Tima moved on with his life. In 1997, he married Florence Fomundam, who is now a naturalized citizen. They have three children, all of whom are U.S. citizens.

         The government issued Tima a notice to appear in 2003 and amended it in 2005 and 2010. It charged that he was removable for marriage fraud (8 U.S.C. § 1227(a)(1)(G)(ii)), for termination of conditional-permanent-resident status (§ 1227(a)(1)(D)(i)), and for a moral-turpitude conviction (§ 1227(a)(2)(A)(i)).

         The immigration judge sustained all three charges. Tima applied for a fraud waiver under § 1227(a)(1)(H). The judge ruled that the fraud waiver could extend to the marriage-fraud charge but not to the moral-turpitude or termination-of-conditional-resident-status charges. The Board of Immigration Appeals affirmed.

         On petition for review, this Court did not reach the fraud-waiver issue. But we granted Tima's petition because the judge and Board had erred in sustaining the charge for termination of conditional-permanent-resident status. Tima v. Att'y Gen., 603 Fed.Appx. 99, 103 (3d Cir. 2015). We remanded for the Board to consider whether the § 1227(a)(1)(H) fraud waiver extends to the moral-turpitude charge. Id. at 103-04.

         On remand, the Board held that the fraud waiver does not reach removal for a conviction of a crime involving moral turpitude. Matter of Tima, 26 I. & N. Dec. 839, 843-44 (BIA 2016). The Board's holding followed three of our sister circuits' precedents addressing the same or similar provisions of the Act. Id. at 844 (citing Fayzullina v. Holder, 777 F.3d 807, 815-16 (6th Cir. 2015); Taggar v. Holder, 736 F.3d 886, 890-91 (9th Cir. 2013); Gourche v. Holder, 663 F.3d 882, 886-87 (7th Cir. 2011)).

         Tima again petitioned for review. We have jurisdiction to review his final order of removal because Tima's petition raises an issue of law. 8 U.S.C. § 1252(a)(1), (a)(2)(D). We review de novo. Alimbaev v. Att'y Gen., 872 F.3d 188, 194 (3d Cir. 2017).

         II. The Fraud Waiver Does Not Reach Removal Based on Grounds Other Than Inadmissibility

         Everyone-the judge, the parties, and this Court-agrees that the fraud waiver reaches (i.e., can waive) Tima's removal under § 1227(a)(1)(G) for his inadmissibility based on his false claim of marriage. But Tima is removable for another distinct but related reason: his conviction for making false statements. He argues that the fraud waiver under § 1227(a)(1)(H) also reaches that moral-turpitude conviction, waiving his removal under § 1227(a)(2)(A)(i). But it does not.

         The fraud waiver "also operate[s] to waive removal based on the grounds of inadmissibility directly resulting" from the underlying fraud. 8 U.S.C. § 1227(a)(1)(H). But Tima's removability under § 1227(a)(2)(A)(i) for a conviction of a crime involving moral turpitude is not based on a "ground of inadmis-sibility." So the fraud waiver does not reach that clause. This conclusion ...

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