A Cameroonian national attempting to ward off deportation encountered a significant blow when a federal appeals court denied his request that removal charges related to his nearly 30-year-old conviction of marriage fraud be forgiven.
The U.S. Court of Appeals for the Third Circuit on Thursday denied Gordon Ndok Tima’s request for a waiver of the government’s arguments for deporting him. The government claims Tima was inadmissible for entry into the United States because he used fraudulent tactics to gain admission.
Tima arrived in the U.S. in 1989 on a student visa, and when that expired, entered into a sham marriage with Sandra Marr, Third Circuit Judge Stephanos Bibas wrote in the court’s opinion. He pleaded guilty and admitted to the fraud, but the government did not immediately initiate deportation proceedings.
Tima eventually moved on and legally married another woman in 1997, Florence Fomundam, who is a naturalized U.S. citizen. They have three children, who are all U.S. citizens.
However, the government caught up with Tima and issued him a notice to appear for immigration proceedings in 2003, ultimately pushing it back to 2010. He was charged and deemed removable for his false claim of marriage, termination of conditional-permanent resident status, and committing a crime of moral turpitude.
Tima argued that a waiver he was granted for the marriage fraud conviction should extend to the crime of moral turpitude charge as well as his false statement charge.
Bibas said the text of the law—8 U.S.C. Section 1227(a)(1)(H)—forecloses that possibility.
The fraud waiver to the law contains three parts, laid out by Bibas: “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 ‘grounds of inadmissibility directly resulting from such fraud or misrepresentation.’”
Bibas said for the waiver to apply an immigrant had to have been otherwise admissible except for inadmissibility based on failure to file the proper paperwork or entering into unauthorized labor.
If an immigrant does “not qualify for the discretionary waiver in the first part, then the third part cannot ‘operate,’” Bibas said. “So if the third part does ‘operate,’ it must be limited to removal based on the two ‘grounds of inadmissibility.’”
“Thus,” Bibas claimed, “the third part can waive removal only if it is based on the particular grounds of inadmissibility mentioned in the eligibility-conditions list. But Tima’s removability is based on his moral-turpitude conviction, not on any ground of inadmissibility, let alone the two enumerated ones. So his claim fails.”
Matthew J. Archambeault represents Tima and did not return a call seeking comment.
Karen L. Melnik, an attorney in the U.S. Department of Justice’s Office of Immigration Litigation, handled the case for the government and did not return a call seeking comment.