                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-4183
                                      ___________

                           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)
                                     ___________

                                       OPINION
                                      ___________

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.


                                                2
§ 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


                                             3
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).

1
  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).
                                             4
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,


                                              5
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.
                                              6
