                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 17-3443
                                                       _

                               RAMON LEWIS JOSEPH,

                                                  Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                                  Respondent

                                                       _

                       On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                    Immigration Judge: Honorable Steven A. Morley
                                 (No. A056-867-005)
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 7, 2019

              Before: AMBRO, SHWARTZ and FUENTES, Circuit Judges

                            (Opinion filed: January 18, 2019)

                                                       _

                                        OPINION *
                                                       _



*
 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

                                              4
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

                                                 5
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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