Gordon Tima v. Attorney General United States , 903 F.3d 272 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 16-4199
_______________
GORDON NDOK TIMA,
Petitioner
v.
ATTORNEY GENERAL,
UNITED STATES OF AMERICA,
Respondent
_______________
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
_______________
Argued April 30, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
(Filed: September 6, 2018)
_______________
Matthew J. Archambeault, Esq. [ARGUED]
Corpuz & Archambeault
1420 Walnut Street
Suite 1188
Philadelphia, PA 19102
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
Room 2308
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
In the Immigration and Nationality Act, a waiver-of-re-
moval 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 turpi-
tude. So he was removable based on his inadmissibility as well
as his conviction, and was ordered to be removed.
2
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 re-
moval 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-admis-
sion 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, en-
tered 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 enforce-
ment 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 natural-
ized 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 termina-
tion of conditional-permanent-resident status
(§ 1227(a)(1)(D)(i)), and for a moral-turpitude conviction
(§ 1227(a)(2)(A)(i)).
3
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-condi-
tional-resident-status charges. The Board of Immigration Ap-
peals 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
F. App’x 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 tur-
pitude. Matter of Tima, 26 I. & N. Dec. 839, 843-44 (BIA
2016). The Board’s holding followed three of our sister cir-
cuits’ 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 re-
view de novo. Alimbaev v. Att’y Gen., 872 F.3d 188, 194 (3d
Cir. 2017).
4
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 remov-
ability under § 1227(a)(2)(A)(i) for a conviction of a crime in-
volving moral turpitude is not based on a “ground of inadmis-
sibility.” So the fraud waiver does not reach that clause. This
conclusion follows from the Act’s text, structure, and applica-
tion of the canons of construction.
A. The fraud waiver’s text limits it to “grounds of inad-
missibility” addressed by “this paragraph”
Tima seeks to extend the fraud waiver beyond his marriage
fraud to his false-statements conviction. But the text of the
fraud waiver forecloses that argument.
The fraud waiver has three parts. The first part grants the
Attorney General discretion to waive “[t]he provisions of this
paragraph” for certain aliens. The second part lists eligibility
conditions for the waiver. And the third part extends the scope
of a discretionary waiver to removal charges based on
5
“grounds of inadmissibility directly resulting from such fraud
or misrepresentation.” Here is the waiver’s entire text:
[First part]
The provisions of this paragraph relating to the re-
moval of aliens within the United States on the ground
that they were inadmissible at the time of admission as
aliens described in section 1182(a)(6)(C)(i) [misrepre-
sentation to gain admission] of this title, whether willful
or innocent, may, in the discretion of the Attorney Gen-
eral, be waived for any alien (other than an alien de-
scribed in paragraph (4)(D) [Nazi removal charge])
who—
[Eligibility-conditions list]
(i)(I) is the spouse, parent, son, or daughter of a cit-
izen of the United States or of an alien lawfully admitted
to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equiv-
alent document and was otherwise admissible to the
United States at the time of such admission except for
those grounds of inadmissibility specified under para-
graphs (5)(A) [inadmissible because entering to per-
form unauthorized labor] and (7)(A) [inadmissible be-
cause applying for admission without proper docu-
ments] of section 1182(a) of this title which were a di-
rect result of that fraud or misrepresentation.
(ii) is a VAWA self-petitioner.
6
[Third part]
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.
8 U.S.C. § 1227(a)(1)(H) (bracketed material and emphases
added).
As we explain below, the text’s first part limits discretion-
ary waivers to § 1227(a)(1) removal charges based on
§ 1182(a)(6)(C)(i) inadmissibility grounds. And the third part
extends only to § 1227(a)(1) removal charges based on inad-
missibility under § 1182(a)(5)(A) (labor certification) or
(a)(7)(A) (documentation) directly resulting from the fraud. So
it does not extend to Tima’s removal under § 1227(a)(2)(A)(i)
for his moral-turpitude conviction.
1. In the first part, the phrase “this paragraph” limits the
waiver’s scope to § 1227(a)(1) removal charges based on
§ 1182(a)(6)(C)(i) inadmissibility. The first part limits the At-
torney General’s discretionary-waiver power not to this “sec-
tion” or “subsection,” but to “[t]he provisions of this para-
graph.” All three sister circuits to address this issue agree that
the phrase “this paragraph” limits the waiver’s scope to
§ 1227(a)(1). See Fayzullina, 777 F.3d at 815 (holding that the
“waiver provision in § 1227(a)(1)(H) explicitly applies only to
findings of removability based on paragraph (1)” of § 1227(a));
Taggar, 736 F.3d at 890 (same); Gourche, 663 F.3d at 887
(same).
7
In statutory drafting, “paragraph” has a technical meaning
that forecloses Tima’s argument. Congressional drafting man-
uals instruct drafters to break statutory sections down into sub-
sections, paragraphs, subparagraphs, clauses, and subclauses.
Lowercase letters mark subsections, Arabic numerals mark
paragraphs, capital letters mark subparagraphs, romanette nu-
merals mark clauses, and Roman numerals mark subclauses.
Office of Legislative Counsel, U.S. House of Representatives,
House Legislative Counsel’s Manual on Drafting Style, HLC
No. 104-1, at 24 (1995); Office of the Legislative Counsel,
U.S. Senate, Legislative Drafting Manual 10 (1997); see also
Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60-62
(2004) (considering the technical meanings of “section” and
“paragraph” in interpreting the Truth in Lending Act).
Section 1227 follows that format:
Section 1227: “Deportable aliens”
Subsection 1227(a): “Classes of deportable aliens”
Paragraph 1227(a)(1): “Inadmissible at time of entry
or of adjustment of status or violates status”
Subparagraph 1227(a)(1)(H): “Waiver author-
ized for certain misrepresentations”
Clause 1227(a)(1)(H)(i)
Subclause 1227(a)(1)(H)(i)(I)
So when the first part of § 1227(a)(1)(H) refers to “[t]he
provisions of this paragraph,” it is referring to § 1227(a)(1). By
its terms, the waiver does not extend beyond paragraph (a)(1)
8
to reach a different paragraph, (a)(2), as Tima argues. While a
few cross-references do not hew to this usage, the section’s
structure accords with this reading.
Nor does the first part of § 1227(a)(1)(H) grant discretion to
waive every removal charge in paragraph § 1227(a)(1). Instead,
it grants discretion to waive only those (a)(1) removal charges
based on § 1182(a)(6)(C)(i) inadmissibility. Avila-Anguiano v.
Holder, 689 F.3d 566, 570 (6th Cir. 2012). Tima’s moral-tur-
pitude conviction does not qualify for § 1227(a)(1)(H)’s discre-
tionary waiver because the conviction made him removable
under § 1227(a)(2)(A)(i). So it is not a ground of removal under
“this paragraph” based on § 1182(a)(6)(C)(i) inadmissibility.
2. The third part is limited to waiving removal based on
resulting “grounds of inadmissibility” that are consistent with
the waiver’s eligibility conditions. The text of the third part ex-
pressly limits its scope to “waiv[ing] removal based on the
grounds of inadmissibility directly resulting from such fraud or
misrepresentation.” 8 U.S.C. § 1227(a)(1)(H).
But Tima’s removability for his moral-turpitude conviction
is based not on a ground of inadmissibility, but rather on a post-
admission crime. See § 1227(a)(2)(A)(i). Instead, (a)(2)(A)
contains its own waiver provision. See § 1227(a)(2)(A)(vi).
And Tima does not qualify, as that waiver requires a guberna-
torial or presidential pardon. Id.
Nor does Tima’s argument fit with the fraud waiver’s struc-
ture. The list of eligibility conditions requires that the alien
have been “otherwise admissible to the United States at the
time of such admission” except for inadmissibility under
9
§ 1182(a)(5)(A) (entry to perform unauthorized labor) or
(7)(A) (applying for admission without proper documents).
Those two narrow exceptions to the requirement that an al-
ien be “otherwise admissible” limit the third part’s scope. If an
alien was inadmissible on other grounds, then he cannot qual-
ify for the waiver in § 1227(a)(1)(H)’s first part. And if he does
not qualify for the discretionary waiver in the first part, then
the third part cannot “operate.” So if the third part does “oper-
ate,” it must be limited to removal based on the two “grounds
of inadmissibility” explicitly excepted by the eligibility-condi-
tions list in § 1227(a)(1)(H)(i)(II). See Taggar, 736 F.3d at
890-91.
Thus, the third part can waive removal only if it is based on
the particular grounds of inadmissibility mentioned in the eli-
gibility-conditions list. But Tima’s removability is based on his
moral-turpitude conviction, not on any ground of inadmissibil-
ity, let alone the two enumerated ones. So his claim fails.
B. The Act’s structure distinguishes inadmissibility
from other grounds of removal
The structure of the Immigration and Nationality Act con-
firms our reading of the text. The Act distinguishes inadmissi-
bility from removability. Removability can be based on inad-
missibility, or on post-admission crimes, or on a host of other
grounds. In keeping with that structure, this fraud waiver ex-
tends only to removal based on inadmissibility, not on other
grounds like post-admission crimes.
10
Section 1182 lists classes of “[i]nadmissible aliens.” It pro-
vides that “aliens who are inadmissible . . . are ineligible to re-
ceive visas and ineligible to be admitted to the United States.”
8 U.S.C. § 1182(a). But some inadmissible aliens nonetheless
gain entry. And other aliens are validly admitted, but later be-
come removable for other reasons.
Section 1227 defines “[d]eportable aliens,” a synonym for
removable aliens. It provides that “[a]ny alien . . . in and admit-
ted to the United States shall . . . be removed if the alien is
within one or more of the following classes of deportable al-
iens.” 8 U.S.C. § 1227(a). One class of deportable aliens com-
prises those who are “[i]nadmissible at [the] time of entry or of
adjustment of status or [who] violate[ ] status.” 8 U.S.C.
§ 1227(a)(1).
So § 1227(a)(1) piggybacks on § 1182(a) by treating
grounds of inadmissibility as grounds for removal as well. And
the Act has long piggybacked these grounds for removal on
these grounds of inadmissibility. See Reid v. INS, 420 U.S. 619,
623 (1975).
The fraud waiver works as part of § 1227(a)(1)’s piggy-
backing scheme. With few exceptions, mostly in (a)(4) (secu-
rity grounds), § 1227(a) authorizes removal under paragraph
(a)(1) for inadmissible aliens who somehow gain admission.
The fraud waiver sits at the end of § 1227(a)(1), is expressly
limited to the “provisions of this paragraph,” and cross-refer-
ences specific inadmissibility provisions of § 1182. All of these
clues confirm § 1227(a)(1)(H)’s limited role in the Act’s pig-
gybacking scheme.
11
But Tima asks us to read the fraud waiver to reach his re-
movability under § 1227(a)(2)(A)(i). That clause is based not
on a ground of inadmissibility, but on a post-admission con-
viction. Like the rest of § 1227(a)(2)(A), removal for a moral-
turpitude conviction requires committing a crime “after the
date of admission.” 8 U.S.C. § 1227(a)(2)(A)(i)(I) (emphasis
added). So Tima’s reading contradicts not only the Act’s text,
but also its structure.
C. Canons of construction do not alter the meaning of
the text
1. The third part of the fraud waiver does not trump the first
part. Tima responds that the third part of the fraud waiver is
more specific than the first part, and the specific must control
the general. But the two parts do not conflict. The first part
gives the Attorney General discretion to waive (a)(1) charges
based on § 1182(a)(6)(C)(i) inadmissibility. The third part ex-
tends the grant of that waiver to (a)(1) charges based on
§ 1182(a)(5)(A) or (7)(A) inadmissibility. So the specificity
canon does not apply.
2. While the Nazi cross-reference is surplusage, the sur-
plusage canon does not outweigh the more natural meaning of
the text. Tima’s stronger argument is that our reading makes
one cross-reference surplusage. The first part disqualifies “al-
ien[s] described in paragraph (4)(D),” “Participa[nts] in Nazi
persecution,” from eligibility for the discretionary waiver.
§ 1227(a)(1)(H). Tima argues that if the text disqualifies one
class of aliens described outside of § 1227(a)(1), then it must
reach other classes of aliens beyond that paragraph as well.
12
Otherwise, the Nazi disqualification would make no sense.
This is indeed a cogent argument.
But the rule against surplusage “is not absolute.” Lamie v.
U.S. Tr., 540 U.S. 526, 536 (2004). We can read the fraud
waiver according to its text, at the cost of making the Nazi dis-
qualification surplusage. Or we can read the waiver to avoid
surplusage, at the expense of its more natural reading, the struc-
ture of the paragraph, and the structure of the Act. In this situ-
ation, “applying the rule against surplusage is, absent other in-
dications, inappropriate.” Id. So we “rest our holding on the
statutory text.” Id. at 542.
3. No occasion for lenity. Finally, Tima argues that we
should resolve any ambiguities in his favor. But here, “[w]e
think the application of the present statute clear enough that
resort to the rule of lenity is not warranted.” Kawashima v.
Holder, 565 U.S. 478, 489 (2012).
*****
The fraud waiver’s text and structure limit it to removal
based on grounds of inadmissibility. It does not reach removal
on other grounds, like conviction of a crime involving moral
turpitude. So we join three other circuits in declining to read
the fraud waiver more broadly, and will deny Tima’s petition
for review.
13