2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-8-2014

Gabin Tonfack v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4183

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Gabin Tonfack v. Attorney General United States" (2014). 2014 Decisions. Paper 934.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/934
1

NOT PRECEDENTIAL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, 
2

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. 
3

§ 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
4

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).
5

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 IS- & 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, 
6

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.