Gabin Tonfack v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4183
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GABIN M’BOGNING TONFACK,
Appellant
v.
ATTORNEY GENERAL UNITED
STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-13-cv-01886)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2014
Before: CHAGARES, KRAUSE and SLOVITER, Circuit Judges
(Opinion filed: September 8, 2014)
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OPINION
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PER CURIAM
Pro se appellant Gabin Tonfack appeals the District Court’s order dismissing for
lack of jurisdiction his petition under 28 U.S.C. § 2241. For the reasons detailed below,
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we will affirm the District Court’s judgment.
Tonfack is a citizen of the Ivory Coast. He was admitted to the United States in
2006 as a nonimmigrant student. However, in February 2010, he was convicted of
acquiring and retaining access-card-account information with fraudulent intent, and in
July 2012, he was convicted of access-device fraud. After this second conviction, the
school he was attending, San Francisco State University, terminated his student status.
The Department of Homeland Security then charged Tonfack with being removable as an
alien who (1) had been convicted of a crime of moral turpitude within five years of being
admitted, see 8 U.S.C. § 1227(a)(2)(A)(i); (2) had been convicted of two crimes of moral
turpitude not arising out of a single criminal scheme, see § 1227(a)(2)(A)(ii); and (3) had
failed to comply with the conditions of his admission, see § 1227(a)(1)(C)(i).
The parties have not filed the opinion of the Immigration Judge (IJ) in either the
District Court or this Court; instead, they have provided only the one-page order that the
IJ issued on April 16, 2013. That document orders Tonfack to be removed from the
United States, denies Tonfack’s application for asylum, and grants his application for
withholding of removal as to the Ivory Coast. The order contains form language for the
IJ to designate a country of removal — “The respondent was ordered removed from the
United States to or in the alternative to .” — but the IJ did not fill in those
blanks. The parties apparently each waived their right to appeal the IJ’s decision, and
represent that no appeal has been taken. The time to take any appeal to the Board of
Immigration Appeals (BIA) or this Court has long since expired. See 8 C.F.R.
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§ 1003.38(b) (30 days to appeal to BIA); 8 U.S.C. § 1252(b)(1) (30 days to file petition
for review to this Court).
Since the IJ’s order, Tonfack has remained in the custody of Immigration and
Customs Enforcement (ICE). ICE obtained a travel document to remove Tonfack to
Cameroon, where, ICE says, he was born. See generally 8 C.F.R. § 1208.16(f) (“Nothing
in this section or § 1208.17 shall prevent the Service from removing an alien to a third
country other than the country to which removal has been withheld or deferred.”). When
ICE attempted to place Tonfack on a plane bound for Cameroon, however, he forcibly
resisted, and prevented the removal from occurring. He then filed the petition under
§ 2241 that is at issue here. He claims that he has no connection to Cameroon, and the
travel documents, which state he was born there and lived there before entering the
United States, are inaccurate. He asked the District Court to enter an order preventing
ICE from removing him to Cameroon.
The District Court dismissed Tonfack’s § 2241 petition for lack of jurisdiction.
The Court concluded that Tonfack was seeking to challenge the IJ’s removal order, and
that under the Immigration and Nationality Act (INA), an alien may challenge an order of
removal only by filing a petition for review to the court of appeals. See 8 U.S.C.
§ 1252(a)(5). Tonfack then filed a timely notice of appeal to this Court.
At around this time, Tonfack also asked the IJ to reopen his proceedings so that he
could apply for relief under the Convention Against Torture (CAT) with regard to
Cameroon, and on June 18, 2013, the IJ granted this request. The IJ also requested that
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the Department of State investigate whether the travel documents were legitimate. On
November 22, 2013, the State Department responded that it discussed the matter with Dr.
Charles Greene, Honorary Consul of the Republic of Cameroon, who reported that
Tonfack is a citizen of Cameroon and that the travel documents are valid. A hearing on
Tonfack’s reopened action was scheduled for June 5, 2014, but, for reasons that are not
clear, Tonfack voluntarily terminated that action.
We have jurisdiction under 28 U.S.C. § 1291.1 We exercise plenary review over
the District Court’s legal conclusions and apply a clearly erroneous standard to its
findings of fact. Kumarasamy v. Att’y Gen., 453 F.3d 169, 172 (3d Cir. 2006).
We discern no error in the District Court’s disposition of this case. “[A] petition
for review is ‘the sole and exclusive means for judicial review of an order of removal.’”
Id. at 172 (quoting 8 U.S.C. § 1252(a)(5)); see also § 1252(b)(9). In determining whether
a § 2241 petition challenges a removal order, we are not bound by the petitioner’s labels.
See generally Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007). Thus, “[w]hen a
claim by an alien, however it is framed, challenges the procedure and substance of an
agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited
by section 1252(a)(5).” Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012).
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The government argues that Tonfack’s case is moot “[t]o the extent that Tonfack’s
argument is construed as challenging the government’s failure to review his claim
regarding the validity of the travel documents and removal to Cameroon.” We construe
Tonfack to press the broader argument that he is entitled to an order preventing his
removal to Cameroon, and we therefore conclude that the case is not moot. Further,
because the agency’s order of removal is final and Tonfack faces an immediate threat of
being removed to Cameroon, we are satisfied that the appeal is ripe for our review. See
generally Abbott Labs. v. Gardner, 387 U.S. 136, 149-53 (1967); Sharkey v. Quarantillo,
541 F.3d 75, 90 (2d Cir. 2008).
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Meanwhile, a § 2241 petition is not subject to § 1252(a)(5)’s jurisdictional bar if it is
“independent” of the removal order. See Nnadika v. Att’y Gen., 484 F.3d 626, 632 (3d
Cir. 2007).
Tonfack claims that his § 2241 petition is independent of his removal order, but
we do not agree. Critically, Tonfack argues not just that the specific Cameroonian travel
documents are invalid, but that Cameroon is not a proper country of removal. This issue
is encompassed in the removal order — the IJ is obligated to designate a country of
removal as part of the removal proceedings. See 8 C.F.R. § 1240.12(d); see also In re I-
S- & C-S-, 24 I. & N. Dec. 432, 433-34 (BIA 2008) (holding that when an IJ issues a
decision granting an alien’s application for withholding of removal without a grant of
asylum, the decision must include an explicit order of removal designating a country of
removal). The fact that the IJ here may have neglected to select a country or countries for
removal does not change this analysis, as we construe the “removal order” in this context
to encompass “all matters on which the validity of the final order is contingent, rather
than only those determinations actually made at the hearing.” Verde-Rodriguez v. Att’y
Gen., 734 F.3d 198, 206 (3d Cir. 2013) (quotation marks omitted).
Our conclusion that Tonfack’s § 2241 petition challenges a notice of removal is
reinforced by the fact that his arguments are often considered by courts via petitions for
review. See Martinez, 704 F.3d at 623 (employing this analysis). For instance, it is not
unusual for courts to review whether an agency selected a proper country for removal.
See, e.g., Mendis v. Filip, 554 F.3d 335, 336 (2d Cir. 2009) (Sotomayor, J.). Likewise,
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courts address through petitions for review claims that the IJ improperly neglected to
designate a country for removal. See, e.g., Desta v. Ashcroft, 329 F.3d 1179, 1184 (10th
Cir. 2003).2 Thus, to permit Tonfack to challenge this issue, which he could have
challenged in a petition for review, would be contrary to the INA’s intent to “limit all
aliens to one bite of the apple with regard to challenging an order of removal.”
Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
Accordingly, we conclude that Tonfack’s habeas petition does not have “a basis
independent of the merits of the petition for review,” Singh v. Holder, 638 F.3d 1196,
1211-12 (9th Cir. 2011), and it was therefore proper for the District Court to dismiss it for
lack of jurisdiction. We will thus affirm the District Court’s judgment.
2
At least one Court has held that it would violate an alien’s due process rights for the
agency to remove him to a country that had not been designated under 8
C.F.R. §§ 1240.10(f), 1240.12(d) without first providing him an opportunity to apply for
discretionary relief. See She v. Holder, 629 F.3d 958, 965 (9th Cir. 2010). We need not
reach this issue here, however, because the IJ reopened Tonfack’s action to allow him to
challenge the proposed removal to Cameroon.
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