Gordon Tima v. Attorney General United States , 603 F. App'x 99 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3935
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GORDON NDOK TIMA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A072-378-036)
Immigration Judge: Hon. Rosalind K. Malloy
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 19, 2015
Before: SMITH, JORDAN, and SLOVITER, Circuit Judges.
(Opinion filed: March 24, 2015)
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OPINION
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JORDAN, Circuit Judge.
Petitioner Gordon Ndok Tima, a native and citizen of Cameroon, seeks review of

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
an order of the Board of Immigration Appeals (“BIA”) denying his application for a
waiver of inadmissibility under 8 U.S.C. § 1227(a)(1)(H). For the following reasons, we
will grant his petition and remand the matter to the BIA for further proceedings.
I. Background
Tima was admitted to the United States in 1989 as a nonimmigrant student. On
September 22, 1994, his status was adjusted to conditional permanent resident after he
got married to Sandra Marr, a United States citizen. On July 3, 1995, Marr gave a sworn
statement to the Immigration and Nationalization Service that her marriage to Tima was a
sham entered into only so Tima could obtain United States citizenship. Later, Tima was
charged by an information in the United States District Court for the Eastern District of
Virginia with one count of making false statements concerning his marriage, in violation
of 18 U.S.C. § 1001. In 1996, he pled guilty to that charge. As part of the plea, he
admitted that the marriage was a sham. In early 1997, Tima and Marr divorced, and he
married Florence Fomundam, who was then a citizen of Cameroon, but became a
naturalized U.S. citizen in 2002. Tima and Fomundam have three children, all of whom
are United States citizens.
The Department of Homeland Security served Tima with a notice to appear in
2005 and, in 2008, filed it with the appropriate administrative agency.1 The notice to
appear charged that Tima was removable pursuant to 8 U.S.C. § 1227 (a)(1)(G)(ii) for
entering a marital agreement for the purpose of procuring admission as an immigrant (the
1
The 2005-2008 notice to appear was the third notice that the Department of
Homeland Security served on Tima. It had previously served him with notices in 1996
and 1997, but had failed to file them.
2
“marriage fraud” charge), and pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) because he was
convicted of a crime involving moral turpitude (the “CIMT” charge), namely the false
statement conviction stemming from the sham marriage. Tima denied his removability
and sought a waiver of inadmissibility under 8 U.S.C. § 1227(a)(1)(H), which allows an
alien who was inadmissible at the time of admission because he sought to procure an
immigration benefit through fraud, but who is now related to a United States citizen, to
seek a waiver of his removability. The government opposed the fraud waiver and, in
2010, filed an additional charge of removability, claiming that Tima was removable
under 8 U.S.C. § 1227(a)(1)(D)(i) because his conditional permanent residence status was
terminated automatically in 1996 when he failed to file a Form I-7512 and, further, that
his status was terminated pursuant to a Notice of Termination issued in 2010 based on his
criminal conviction. Tima admitted that he failed to file the Form I-751.
The Immigration Judge (“IJ”) sustained the charges of removability based on
marriage fraud and the failure to file an I-751 form. In a subsequent ruling, the IJ
pretermitted Tima’s application for a fraud waiver and sustained the CIMT charge of
removability. Tima argued at a later hearing that he was eligible for the fraud waiver.
The IJ reconsidered her ruling in that regard and found Tima statutorily eligible for a
waiver of the marriage-fraud charge of removability. The IJ, however, did not reach
whether Tima’s application warranted a favorable exercise of discretion because the IJ
2
Form I-751 is a Petition to Remove the Conditions on Residence. The form must
be filed within 90 days before the second anniversary of when an alien obtains
conditional lawful permanent residence. Failure to file results in the automatic
termination of permanent residence status. 8 C.F.R. §§ 1216.4(a)(1),(6).
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decided that Tima remained removable based on his failure to file a Form I-751 and on
the CIMT charge, which, according to the IJ, were two grounds for removal to which the
fraud waiver did not extend.
On appeal to the BIA, Tima disputed that the fraud waiver does not apply to the
CIMT and Form I-751 charges of removability. He essentially argued that the waiver
applies to all of the charges because they all emanate from a single instance of fraud. The
BIA disagreed and upheld the IJ’s decision. It did not address whether the fraud waiver
applies to the CIMT charge but concluded, as had the IJ, that Tima’s failure to file a
Form I-751 terminated his lawful status and that he is not eligible for a fraud waiver for
the resulting inadmissibility. Tima never challenged the finding that his marriage fraud
conviction was a CIMT nor did he seek a waiver under 8 U.S.C. § 1182, which provides
a discretionary remedy for an alien who has committed a CIMT and is otherwise
removable but who is married to a United States citizen and whose removal would create
an extreme hardship to the alien or his citizen-spouse. 8 U.S.C. § 1182(h).
On August 27, 2013, the BIA dismissed Tima’s appeal and this timely petition for
review followed. The government has moved to dismiss the petition for lack of
jurisdiction based on a failure to exhaust administrative remedies.
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II. Discussion3
A. Jurisdiction
As a threshold matter, we consider the government’s challenge to our jurisdiction.
See, e.g., Jahjaga v. Att’y Gen., 512 F.3d 80, 82 (3d Cir. 2008). We lack jurisdiction to
review the denial of discretionary relief, including cancellation of removal, 8 U.S.C.
§ 1252(a)(2)(B)(i), but we may review “constitutional claims or questions of law raised
upon a petition for review... .” Id. § 1252(a)(2)(D). Our jurisdiction in that respect is
“narrowly circumscribed” in that it is limited to “colorable constitutional claims or
questions of law.” Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (per curiam)
(internal quotation marks and citation omitted).
Tima presents four arguments in his brief: (1) the fraud waiver applies to the order
of removal for failure to file a Form I-751 because that failure was related to his marriage
fraud; (2) termination of status for failure to file a Form I-751 is related to removal for
fraud when an alien is convicted of marriage fraud before the 2-year anniversary of
conditional lawful permanent resident status, and an alien should not be required to file a
meritless Form I-751 in order to be eligible for a fraud waiver; (3) the BIA erred in
pretermitting his application for a fraud waiver because, if the waiver is granted with
respect to the marriage fraud charge of removability, it must also operate to waive
3
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3); our jurisdiction pursuant
to 8 U.S.C. § 1252(a)(1) is disputed and is addressed herein. We review the BIA’s legal
conclusions de novo, subject to the principles outlined in Chevron v. Natural Resources
Defense Council, 467 U.S. 837 (1984). Catwell v. Att’y Gen., 623 F.3d 199, 205 (3d Cir.
2010). There are no facts at issue.
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removability for failure to file the Form I-751 and for the CIMT charge, as those charges
directly result from the underlying fraud charge; and (4) the BIA erred in holding that his
conditional permanent residence status terminated upon failing to file a Form I-751
because his status had already terminated when the Attorney General determined that he
had committed marriage fraud.
In its motion to dismiss, the government asserts that we should dismiss Tima’s
petition for review for lack of jurisdiction because he never challenged his removability
for committing a CIMT or sought a waiver under 8 U.S.C. § 1182(h). The government
argues that Tima did not exhaust his administrative remedies and that the CIMT remains
an independent basis for removal. That argument, however, is misplaced. As Tima notes
in his response to the government’s motion, he sought a fraud waiver to the charge of
removability for committing a CIMT under 8 U.S.C. § 1227(a)(1)(H). The question of
whether the fraud waiver applies to the CIMT charge was therefore raised before the BIA
and is properly before us. It is immaterial whether Tima challenged the CIMT
determination or sought a waiver under Section 1182(h) because the overarching legal
issue of whether a fraud waiver can extend to the CIMT charge and to the Form I-751
charge was preserved, as was Tima’s argument on the legal effect of his failure to file
that form. Accordingly, we have jurisdiction.
B. Grounds for Removal
Turning to the merits of Tima’s arguments, there were, as we have noted, three
asserted grounds for Tima’s removal: marriage fraud, failure to file the Form I-751, and
committing a CIMT. The IJ and the BIA correctly noted that the marriage fraud charge
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was subject to the fraud waiver provision, but concluded that the failure to file Form I-
751 and CIMT charge were not subject to that waiver. They thus did not reach the
question of whether a discretionary waiver was appropriate. Tima asks us to extend the
fraud waiver provision in § 1227(a)(1)(H) to reach his commission of a CIMT and his
failure to file a Form I-751.
First, we need not consider whether the Section 1227 waiver reaches the failure to
file the Form I-751, however, because the BIA’s decision is infirm for another, perhaps
dispositive, reason. The failure to file a Form I-751, under the facts of this case, cannot
be understood to have the effect the government claims. Because Form I-751 must be
filed within 90 days before the second anniversary of when an alien obtains conditional
lawful permanent residence, Tima’s Form I-751 would have been due on or about ninety
days prior to September 22, 1996. The form would have required Tima to declare, under
penalty of perjury, that his marriage to Marr was not for the purposes of obtaining
immigration benefits. Before the form was due, however, he had pled guilty to entering
into a sham marriage to Marr to obtain immigration benefits. Thus, if he had submitted
the Form I-751, he would have committed perjury. Notwithstanding those historical
facts, the IJ and the BIA, relying on Garawan v. INS, 91 F.3d 1332 (9th Cir. 1996), held
that Tima’s conditional permanent resident status automatically terminated when he
failed to file that form. We reject the notion that Congress intended to suborn perjury or
that any court intended to endorse such a reading of Section 1227(a)(1)(D)(i). While
there may be circumstances where an alien is charged with marriage fraud and it is still
appropriate for him to file a Form I-751, this is not such a case. Insofar as the IJ or the
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BIA based the determination that Tima is removable on his failure to file a Form I-751,
that conclusion cannot stand. As the Department of Homeland Security’s own lawyer
effectively pointed out during a hearing before the IJ, that position is untenable. (See
A.R. at 75 (“[A]n I-751 was not filed. … [A]nd logically one wouldn’t have been, he
was convicted of marriage fraud.”).) Thus, the BIA on remand may not rely on Tima’s
failure to file a Form I-751 as a basis for his removal, regardless of whether the fraud
waiver in Section 1227(a)(1)(H) extends to that failure.
We also decline to decide whether Section 1227(a)(1)(H)’s fraud waiver extends
to the CIMT charge.4 The government argues that this claim remains unexhausted. But,
as we have explained above, Tima did sufficiently exhaust it. The government is correct,
however, that he has not exhausted the argument that he is eligible for a waiver under
4
A fraud waiver forgives both the entry fraud and all grounds for removal
“directly resulting from such fraud or misrepresentation.” 8 U.S.C. § 1227(a)(1)(H).
Specifically, Section 1227(a)(1)(H) provides, “The provisions of this paragraph relating
to the removal of aliens … may, in the discretion of the Attorney General, be waived ... .
A waiver of removal for fraud or misrepresentation granted under this subparagraph shall
also operate to waive removal based on the grounds of inadmissibility directly resulting
from such fraud or misrepresentation.” A number of our sister courts, relying on the first
clause – “the provision of this paragraph” − have determined that the “resulting from”
part of the fraud waiver provision, despite its unqualified language, only includes other
grounds for removal that also happen to be contained in Section 1227(a)(1). See, e.g.,
Tagger v. Holder, 736 F.3d 886, 890 (9th Cir. 2013); Gourche v. Holder, 663 F.3d 882,
886-87 (7th Cir. 2011); see also Vasquez, 602 F.3d at 1011-12 (“First, § [1227(a)(1)(H)]
provides that ‘the provisions of this paragraph relating to the removal of aliens within the
United States on the ground that they were inadmissible at the time of admission as aliens
described in the fraud provision may be waived.’ ‘This paragraph’ refers to
§ [1227(a)(1).]”) (emphasis and alterations omitted); Fayzullina v. Holder, No. 13-4335,
2015 WL 64641, at *8 (6th Cir. Jan. 6, 2015). Because we remand this case based on the
erroneous ruling regarding Form I-751 and because that remand permits Tima to pursue
an additional basis for relief on the CIMT charge, namely the Section 1182(h) waiver, we
need not address this question, which could, if the BIA affords Tima discretionary relief
under Section 1182(h), be wholly moot.
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Section 1182(h) for the CIMT charge because he never raised it before the IJ or the BIA.
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (exhaustion applies on an issue-
by-issue basis and the failure to exhaust one issue does not result in failure to exhaust
another that was properly presented). We thus lack jurisdiction to consider the merits of
eligibility for a waiver under that specific statutory subsection. Because we will grant
Tima’s petition on a different basis and because we decline to reach the merits of the
Section 1182(h) claim, the BIA will have an opportunity to consider it for the first time
on remand, thus allowing Tima the chance to properly exhaust it. See Higgs v. Att’y
Gen., 655 F.3d 333, 338 & n.5 (3d Cir. 2011) (“The [g]overnment also argues that the
claim that [the petitioner] is not a Bahamian citizen is unexhausted because it was never
presented to the IJ or the BIA at all. Because we decline to reach the merits of this claim,
the Board will have an opportunity to consider it for the first time on remand, thus
allowing [the petitioner] to properly exhaust this claim.”). In light of our conclusion as to
the Form I-751 issue, if the BIA granted the Section 1182(h) waiver, it could render moot
the question of whether § 1227(a)(1)(H) applies to the CIMT charge.
III. Conclusion
For the forgoing reasons, we will deny the government’s motion to dismiss, grant
Tima’s petition, and remand this matter to the BIA for further proceedings consistent
with this opinion.
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