NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3443
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RAMON LEWIS JOSEPH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Steven A. Morley
(No. A056-867-005)
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Submitted Under Third Circuit LAR 34.1(a)
January 7, 2019
Before: AMBRO, SHWARTZ and FUENTES, Circuit Judges
(Opinion filed: January 18, 2019)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
AMBRO, Circuit Judge
Petitioner Ramon Joseph, a native and citizen of the Dominican Republic, first
entered the United States in 1999 without inspection or admission by an immigration
officer. At the time Joseph was the beneficiary of an I-130 petition filed by his brother
that had been approved in 1991. In 2000, however, Joseph filed an application for
asylum under a false name, Lionel Dalmasi, and gave a fabricated backstory of having
fled from prosecution in Haiti. The Government began removal proceedings against
Joseph, under his Dalmasi alias, in 2002. He returned to the Dominican Republic in
March 2003, and shortly thereafter failed to appear at an immigration hearing in Boston.
The Immigration Judge at that hearing therefore ordered him, still under his alias,
removed in absentia.
Back in the Dominican Republic, Joseph began pursuing an immigration visa
through legal channels, using his brother’s I-130 petition. In February 2004 he went to
the United States Consulate and signed a visa application that failed to disclose his earlier
sojourn in the United States. A consular official approved his application the same day,
and Joseph entered the United States, ostensibly as a lawful permanent resident, in April
2004.
In January 2012, returning from a visit to the Dominican Republic, Joseph was
referred for secondary inspection by immigration officials who discovered his full
immigration history. The Department of Homeland Security then began removal
proceedings against him via a Notice to Appear in the Philadelphia immigration court. In
September 2013 DHS filed a form I-261 providing updated factual allegations and
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charges of removability. The three charges alleged that, at the time of his entry into the
United States, Joseph was inadmissible because (1) he fraudulently procured his visa,
violating 8 U.S.C. § 1182(a)(6)(C)(i), (2) he did not possess a valid entry document,
violating 8 U.S.C. § 1182(a)(7)(A)(i)(I), and (3) he sought admission within 10 years of
having been ordered removed, violating 8 U.S.C. § 1182(a)(9)(A)(ii). Joseph admitted to
the factual allegations against him at hearings in February 2014 and February 2015.
At a hearing in May 2016, Joseph indicated that he was seeking a waiver of the
grounds of inadmissibility stemming from fraud under 8 U.S.C. § 1227(a)(1)(H). The
Immigration Judge set a deadline of July 5, 2016 for the Government to respond to this
request for a waiver, a deadline the Government did not meet. Thus, at a merits hearing
in October 2016 the Immigration Judge held the Government’s arguments waived and
granted the fraud waiver. He alternately held that the Government’s arguments as to
ineligibility were wrong on the merits.
The Board of Immigration Appeals reversed. First, it held that the Government’s
arguments were not waived, as the burden fell on Joseph to establish his eligibility for a
waiver of removal. The Board then concluded that Joseph was ineligible for a fraud
waiver because he had entered the country within 10 years of his in absentia removal
order. This created a ground for removal independent of his fraud.
Joseph now petitions for review of the BIA’s decision. We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we review the BIA’s legal conclusions de novo, subject
to appropriate deference under Chevron v. National Resources Defense Council, Inc., 467
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U.S. 837, 844 (1984). See Cadapan v. Attorney General, 749 F.3d 157, 159 (3d Cir.
2014).
On appeal Joseph argues that the BIA should not have set aside the sanctions
imposed by the Immigration Judge for the Government’s failure to follow procedural
orders. He also argues that the BIA erred in its conclusion that he is not eligible for a
fraud waiver. Neither argument is correct. The regulation on which Joseph relies
concerning waiver of the Government’s arguments, 8 C.F.R. § 1003.31(c), states that, if a
document is not filed within the time limit set by the Immigration Judge, “the opportunity
to file that . . . document shall be deemed waived.” This does not mean that the legal
arguments contained in the document are waived or that the BIA has no power to
consider those arguments on appeal. And the Government is correct that, although it had
the initial burden to show that Joseph was deportable, see 8 C.F.R. § 1240.8(a), he bore
the burden of demonstrating his eligibility for relief from removal. See 8 C.F.R.
§ 1240.8(d).
As to the merits, 8 U.S.C. § 1227(a)(1)(H) allows the Attorney General, in his
discretion, to waive the removal of aliens who gained admission to the United States
through fraudulent means but were otherwise admissible. Such a waiver expressly covers
all charges based on inadmissibility under § 1182(a)(6)(C)(i) for gaining immigration
papers or admission into the United States by fraud or misrepresentation. It also extends
to removal based on any grounds of inadmissibility directly resulting from the fraud or
misrepresentation. In Tima v. Attorney General, 903 F.3d 272 (3d Cir. 2018), we held
that this latter category covers only inadmissibility based on § 1182(a)(5)(A), for entry to
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perform unauthorized labor, or § 1182(a)(7)(A), for entry without proper immigration
documents. Id. at 275. Tima also confirms that an alien subject to removal on multiple
grounds, only some of which are subject to a fraud waiver, is ineligible for a waiver. Id.
at 277.
In this case, Joseph’s charges of removability for fraudulently gaining admission
and for entry without proper documentation are both subject to waiver under
§ 1227(a)(1)(H). The charge for having entered within 10 years of a removal order is
another matter. Under Tima, that inadmissibility provision, § 1182(a)(9)(A)(ii), is not
subject to a fraud waiver. Joseph argues he is not inadmissible under that waiver because
his application for a fraud waiver in 2016 is a new request for admission more than 10
years after the removal order.
This misreads the statute. 8 U.S.C. § 1227(a) states that “[a]ny alien . . . 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.” The primary
ground for removal, § 1227(a)(1)(A), covers “[a]ny alien who at the time of entry or
adjustment of status was within one or more of the classes of aliens inadmissible by the
law existing at such time.” Thus an alien’s removability is based on his eligibility for
admission at the time of his entry into the United States—in Joseph’s case, April 2004.
Section 1227(a)(1)(H) allows the Attorney General to waive removability if the only
reason for an alien’s inadmissibility at the time of entry stemmed from fraud in obtaining
immigration documents. The granting of such a waiver is not a new admission into the
United States. Section 1227(a) only applies to aliens who are already “in and admitted
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to” the country. And § 1227(a)(1)(H) itself refers multiple times to the alien’s
admissibility “at the time of admission.”
The question, then, is not whether § 1182(a)(9)(A)(ii) would bar Joseph’s
admission in 2016, but whether it barred his admission at the time of his entry in 2004.
As this entry took place just one year after the in absentia removal order, Joseph clearly
was inadmissible at that time. He is therefore removable subject to § 1227(a)(1)(A) for
reasons unrelated to fraud and is not eligible for a fraud waiver under § 1227(a)(1)(H).
Thus we deny the petition for review.
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