Emmanuely Germain v. U.S. Attorney General

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11419
________________________
Agency No. A058-742-537
EMMANUELY GERMAIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 18, 2021)
Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.
BRANCH, Circuit Judge:
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Emmanuely Germain seeks review of the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) denial of his
motion to terminate removal and application for cancellation of removal. Germain
argues that the BIA erred in affirming the IJ’s determination that Germain had
been convicted of an “aggravated felony,” as defined by the Immigration and
Nationality Act (“INA”), which rendered him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) and made him ineligible for cancellation of removal under 8
U.S.C. § 1229b(a).
The INA defines “aggravated felony” as, among other things, “an offense
. . . described in section 1546(a) of [Title 18] (relating to document fraud) . . . for
which the term of imprisonment is at least 12 months.” 8 U.S.C. § 1101(a)(43)(P).
It is undisputed that Germain was convicted of four counts of violating 18 U.S.C.
§ 1546(a) for making false statements in an immigration application and sentenced
to 18 months’ imprisonment for each of those convictions. Germain argues,
however, that he did not commit an “aggravated felony” under § 1101(a)(43)(P)
because his convictions under § 1546(a) were not “(relating to document fraud).”
In other words, Germain maintains that the parenthetical phrase “(relating to
document fraud)” limits the violations of § 1546(a) that constitute aggravated
felonies under § 1101(a)(43)(P). Because all four paragraphs of § 1546(a) relate to
document fraud and the plain text and structure of the INA demonstrate that the
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parenthetical “(relating to document fraud)” is merely descriptive of § 1546(a)—
rather than limiting—Germain’s argument fails. We deny Germain’s petition for
review.
I. Background
Germain was admitted to the United States in 2007 as a lawful permanent
resident. Roughly ten years later, he was convicted of one count of conspiracy to
commit an offense to defraud the United States, in violation of 18 U.S.C. § 371,
and three counts of making a false statement in an immigration application, in
violation of the fourth paragraph of 18 U.S.C. § 1546(a). The district court
sentenced Germain to concurrent terms of 18 months’ imprisonment for each of
the four convictions, and we affirmed Germain’s convictions on appeal. See
United States v. Germain, 759 F. App’x 866 (11th Cir. 2019).
The Department of Homeland Security then issued Germain a Notice to
Appear (“NTA”) alleging that he was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) 1 as an alien convicted of an aggravated felony based on his
§ 1546(a) convictions.2
1
Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable.”
2
The NTA also alleged that Germain was removable pursuant to 8 U.S.C.
§ 1227(a)(3)(B)(iii) as an alien convicted of a violation of (or a conspiracy to violate) 18 U.S.C.
§ 1546. Section 1227(a)(3)(B)(iii) provides that “[a]ny alien who at any time has been convicted
. . . of a violation of, or an attempt or a conspiracy to violate, section 1546 of Title 18 (relating to
fraud and misuse of visas, permits, and other entry documents), is deportable.” Though Germain
initially argued in his motion to terminate that he was not removable on this ground, the IJ
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Germain moved to terminate his removal proceedings arguing that he was
not removable under § 1227(a)(2)(A)(iii) because, even though he had been
convicted of a violation of 18 U.S.C. § 1546, it was not a conviction that qualified
as an “aggravated felony” under § 1227(a)(2)(A)(iii).
Germain then filed an application for cancellation of removal. He argued he
was eligible for cancellation under 8 U.S.C. § 1229b(a) because he had been a
lawful permanent resident for five or more years, had continuously resided in the
United States for seven years, and had never been convicted of an aggravated
felony.3 At his hearing, Germain argued that the parenthetical “(related to
document fraud)” in 8 U.S.C. § 1101(a)(43)(P) limited the qualifying § 1546(a)
convictions to those expressly involving document fraud. He argued that his
§ 1546(a) convictions accordingly did not qualify as aggravated felonies because
sustained the NTA’s charge of removability under § 1227(a)(3)(B)(iii), and Germain does not
challenge that ruling on appeal.
Even though Germain is independently removable under 8 U.S.C. § 1227(a)(3)(B)(iii),
the determination of whether his § 1546(a) convictions qualify as aggravated felonies under 8
U.S.C. § 1101(a)(43)(P) is still relevant to determining whether he is eligible for cancellation of
removal under 8 U.S.C. § 1229b(a).
3
In full, 8 U.S.C. § 1229b(a) provides:
The Attorney General may cancel removal in the case of an alien who is
inadmissible or deportable from the United States if the alien--
(1) has been an alien lawfully admitted for permanent residence for not less than
5 years,
(2) has resided in the United States continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated felony.
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he had not participated in actual document fraud and was convicted solely for
falsely stating that he had not received an unauthorized fee. He further argued that
he did not know that the statements in the immigration application were false
because he had made them at the direction of his father.
In a written decision, the IJ denied Germain’s application for cancellation of
removal and ordered Germain removed pursuant to the charges of removability
contained in the NTA. 4 As to the charge of removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii), the IJ determined that 18 U.S.C. § 1546(a) was divisible
because it enumerated four distinct offenses in its four paragraphs. Applying the
modified categorical approach, the IJ determined that Germain’s superseding
indictment showed that he had pleaded guilty to three counts of making a false
statement of material fact on an immigration application, all of which qualified as
aggravated felonies under 8 U.S.C. § 1101(a)(43)(P), because they were offenses
described in § 1546(a). The IJ also determined that Germain was not eligible for
cancellation of removal under 8 U.S.C. § 1229b(a) because he was an aggravated
felon.
Germain appealed the IJ’s decision to the BIA. Germain argued that the IJ
erred in determining that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
4
The IJ noted that the NTA’s second charge of removability—under 8 U.S.C.
§ 1227(a)(3)(B)(iii)—had previously been sustained by the former IJ considering Germain’s
motion to terminate.
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and ineligible for cancellation of removal because his 18 U.S.C. § 1546(a)
convictions were not “aggravated felonies.” Germain argued that his § 1546(a)
convictions did not qualify as aggravated felonies within the definition in 8 U.S.C.
§ 1101(a)(43)(P) because his convictions were solely for making a false statement
on an immigration application related to the payment of fees, which he did not
believe was false and thus did not “relate to document fraud.”
In a single member opinion, the BIA dismissed Germain’s appeal,
determining that the IJ had properly denied Germain’s motion to terminate and his
application for cancellation of removal. It stated that, while it agreed with the IJ
that Germain’s § 1546(a) convictions were aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(P), the IJ “erred in applying the modified categorical approach
rather than the categorical approach.” It reasoned that Germain’s offenses of
conviction under § 1546(a) categorically qualified as aggravated felonies because
§ 1546(a) “is expressly enumerated as an ‘aggravated felony’ under [8 U.S.C.
§ 1101(a)(43)(P)].” Germain petitioned for review of the BIA’s decision.
II. Standard of Review
Where an alien has been ordered removed for having committed an
aggravated felony, our jurisdiction to review the final order of removal is limited to
constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
Likewise, when an alien asks us to review a denial of cancellation of removal, we
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can review only constitutional and legal questions. See id. § 1252(a)(2)(B)(i), (D).
The issue of whether the parenthetical “(relating to document fraud)” in 8 U.S.C.
§ 1101(a)(43)(P) is descriptive or limiting is a question of law which we review de
novo. Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir. 2000); Accardo v. U.S.
Att’y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011). We review only the decision of
the BIA, except to the extent that the BIA expressly adopts, agrees, or relies on the
IJ’s reasoning and findings. Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1153
(11th Cir. 2014).
III. Discussion
An alien who has been convicted of an “aggravated felony” is subject to
removal. 8 U.S.C. § 1227(a)(2)(A)(iii). Further, that alien is ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a). The INA defines “aggravated
felony” by enumerating a list of specific offenses that qualify, including:
an offense (i) which either is falsely making, forging, counterfeiting,
mutilating, or altering a passport or instrument in violation of section
1543 of Title 18 or is described in section 1546(a) of such title
(relating to document fraud) and (ii) for which the term of
imprisonment is at least 12 months[.]
Id. § 1101(a)(43)(P). Section 1546(a) is a criminal statute that “contains four
unnumbered paragraphs, each of which criminalizes different fraudulent conduct
involving immigration documents.” United States v. Jimenez, 972 F.3d 1183, 1191
(11th Cir. 2020). In full, it provides:
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Whoever knowingly forges, counterfeits, alters, or falsely makes any
immigrant or nonimmigrant visa, permit, border crossing card, alien
registration receipt card, or other document prescribed by statute or
regulation for entry into or as evidence of authorized stay or
employment in the United States, or utters, uses, attempts to use,
possesses, obtains, accepts, or receives any such visa, permit, border
crossing card, alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, knowing it to be
forged, counterfeited, altered, or falsely made, or to have been
procured by means of any false claim or statement, or to have been
otherwise procured by fraud or unlawfully obtained; or
Whoever, except under direction of the Attorney General or the
Commissioner of the Immigration and Naturalization Service, or other
proper officer, knowingly possesses any blank permit, or engraves,
sells, brings into the United States, or has in his control or possession
any plate in the likeness of a plate designed for the printing of permits,
or makes any print, photograph, or impression in the likeness of any
immigrant or nonimmigrant visa, permit or other document required
for entry into the United States, or has in his possession a distinctive
paper which has been adopted by the Attorney General or the
Commissioner of the Immigration and Naturalization Service for the
printing of such visas, permits, or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa,
permit, or other document required for entry into the United States, or
for admission to the United States personates another, or falsely
appears in the name of a deceased individual, or evades or attempts to
evade the immigration laws by appearing under an assumed or
fictitious name without disclosing his true identity, or sells or
otherwise disposes of, or offers to sell or otherwise dispose of, or
utters, such visa, permit, or other document, to any person not
authorized by law to receive such document; or
Whoever knowingly makes under oath, or as permitted under penalty
of perjury under section 1746 of title 28, United States Code,
knowingly subscribes as true, any false statement with respect to a
material fact in any application, affidavit, or other document required
by the immigration laws or regulations prescribed thereunder, or
knowingly presents any such application, affidavit, or other document
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which contains any such false statement or which fails to contain any
reasonable basis in law or fact--
Shall be fined under this title or imprisoned not more than 25 years (if
the offense was committed to facilitate an act of international
terrorism (as defined in section 2331 of this title)), 20 years (if the
offense was committed to facilitate a drug trafficking crime (as
defined in section 929(a) of this title)), 10 years (in the case of the
first or second such offense, if the offense was not committed to
facilitate such an act of international terrorism or a drug trafficking
crime), or 15 years (in the case of any other offense), or both.
18 U.S.C. § 1546(a).
As noted above, Germain was convicted under paragraph four of § 1546(a)
and sentenced to more than a year in prison. Yet he argues this conviction was not
an “aggravated felony” as defined by the INA—an offense “described in [18 U.S.C
§] 1546(a) . . . (relating to document fraud)” for which the term of imprisonment
was 12 months or more—because we should read the parenthetical “(relating to
document fraud)” in 8 U.S.C. § 1101(a)(43)(P) as referring to only the first,
second, and third paragraphs of § 1546(a) and not the fourth paragraph of
§ 1546(a). Because the plain language and structure of § 1101(a)(43)(P)
demonstrate that the parenthetical “(relating to document fraud)” is merely
descriptive of § 1546(a), rather than limiting, we reject Germain’s argument. 5
5
To the extent Germain also argues that his offenses in particular did not involve
document fraud because he did not know that the statements that he made in the immigration
application were false or that his statements related solely to a non-material representation
regarding compensation, those arguments are an impermissible collateral attack on the
sufficiency of the evidence supporting his prior convictions, and we will not address them in this
appeal. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1247 (11th Cir. 2016) (explaining that a petition
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“The first rule in statutory construction is to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular
dispute.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir. 2003)
(quotation omitted). Every word in a statute must be given meaning if possible,
and a statute “must be viewed in its entirety so that each part has a sensible and
intelligent effect harmonious with the whole.” Id. at 1173 (quotation omitted).
As an initial matter, we must confront the obvious flaw in Germain’s
argument: paragraph four of § 1546(a)—under which Germain was convicted—
clearly relates to document fraud. Paragraph four of § 1546(a) criminalizes
making false statements of material fact in certain immigration documents. In fact,
all four paragraphs of § 1546(a) relate to document fraud. As we explained in
Jimenez, section 1546(a)’s four paragraphs each “criminalize[] different fraudulent
conduct involving immigration documents.” 972 F.3d at 1191. Because all four
paragraphs of § 1546(a) relate to document fraud, Germain’s argument that the
“(relating to document fraud)” parenthetical in 8 U.S.C. § 1101(a)(43)(P) is
limiting in nature rather than descriptive of § 1546(a) as a whole is fatally
undermined.
for review is an improper vehicle in which to collaterally attack a prior conviction that forms the
basis for an alien’s order of removal).
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Our conclusion that the parenthetical “(relating to document fraud)” is
merely descriptive is further bolstered by the fact that 8 U.S.C. § 1101(a)(43)(P)
does not contain any words that are limiting in nature. In a neighboring provision,
Congress included a phrase in a parenthetical that expressly limited the reach of the
aggravated felony definition. See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated
felony” as “a crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of imprisonment [is]
at least one year” (emphasis added)). The lack of a limiting phrase—comparable
to “but not including” in § 1101(a)(43)(F)—further demonstrates that the
parenthetical in § 1101(a)(43)(P) is descriptive rather than limiting. Russello v.
United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (alteration adopted)); see also Pinares v. United
Techs. Corp., 973 F.3d 1254, 1261 (11th Cir. 2020) (applying the “familiar ‘easy-
to-say-so-if-that-is-what-was-meant’ rule of statutory interpretation” and noting
that “[t]he silence of Congress is strident”).
Germain argues that the parenthetical must be limiting in order to be
meaningful. According to Germain, if Congress intended to penalize the entirety
of 18 U.S.C. § 1546(a), it would have left the parenthetical out of § 1101(a)(43)(P)
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altogether. However, Congress put similar descriptive parentheticals throughout
the INA—perhaps to make reading the statute easier. See, e.g., 8 U.S.C.
§ 1101(a)(43)(H) (providing that “an offense described in section 875, 876, 877, or
1202 of Title 18 (relating to the demand for or receipt of ransom)” qualifies as an
aggravated felony); id. § 1101(a)(43)(N) (“an offense described in paragraph
(1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling)” qualifies
as an aggravated felony); see also United States v. Galindo-Gallegos, 244 F.3d
728, 734 (9th Cir. 2001) (“The function of the descriptive language [in
§ 1101(a)(43)] appears to be to make reading the statute easier, so that one does
not have to look up each citation to see what it is about, and to protect against
scrivener’s error in getting the statute from the drafting desk to the United States
Code.”); United States v. Salas-Mendoza, 237 F.3d 1246, 1247 (10th Cir. 2001)
(“Without any descriptions of what the section numbers refer to, determining
whether an offense qualifies as an aggravated felony would be a laborious
process.”).
Germain points to no other courts that have interpreted the “(relating to
document fraud)” parenthetical in § 1101(a)(43)(P) or a similar parenthetical
phrase to be limiting in the way he suggests. Other courts, however, have held that
similar parentheticals in the INA are merely descriptive—rather than limiting. See,
e.g., Gourche v. Holder, 663 F.3d 882, 884–86 (7th Cir. 2011) (holding that the
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“relating to” parenthetical in 8 U.S.C. § 1227(a)(3)(B)(iii)—which provides that
“[a]ny alien who at any time has been convicted . . . of a violation of, or an attempt
or a conspiracy to violate, section 1546 of title 18 (relating to fraud and misuse of
visas, permits, and other entry documents), is deportable”—was merely
descriptive); United States v. Monjaras-Castaneda, 190 F.3d 326, 328, 330–31
(5th Cir. 1999) (holding that the “relating to” parenthetical in 8 U.S.C.
§ 1101(a)(43)(N)—which provides that “an offense described in paragraph (1)(A)
or (2) of section 1324(a) of this title (relating to alien smuggling)” qualifies as an
aggravated felony—was merely descriptive); Patel v. Ashcroft, 294 F.3d 465, 470
(3d Cir. 2002), superseded by statute on other grounds as recognized in Kamara v.
Att’y Gen., 420 F.3d 202, 209 (3d Cir. 2005) (also holding that the “(relating to
alien smuggling)” parenthetical in 8 U.S.C. § 1101(a)(43)(N) was merely
descriptive). We find this analysis persuasive and hold that “(relating to document
fraud)” “is nothing more than a shorthand description” of all the offenses listed in
§ 1546(a). Patel, 294 F.3d at 470.
* * *
Because Germain was convicted of a violation of 18 U.S.C. § 1546(a) and
his sentence was greater than one year, his conviction expressly falls within the
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definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(P). 6 Accordingly, the
BIA properly dismissed Germain’s appeal because the IJ correctly denied
Germain’s motion to terminate his removal proceedings and his application for
cancellation of removal on the ground that his § 1546(a) convictions were
aggravated felonies. We deny Germain’s petition for review.
6
Germain’s arguments that we should apply the modified categorical approach—rather
than the categorical approach—are misplaced. Unlike other sections of the INA which
enumerate offenses in language referring to generic crimes, see 8 U.S.C. § 1101(a)(43)(A)
(defining an “aggravated felony” as “murder, rape, or sexual abuse of a minor”), and therefore,
require application of the categorical or modified categorical approach to determine whether the
offense of conviction fits within the federal definition of the generic crimes, § 1101(a)(43)(P)
provides expressly that offenses described in 18 U.S.C. § 1546(a) qualify as an aggravated
felony. In other words, because subparagraph (P) specifically refers to an “offense described in”
a particular section of the Federal Criminal Code, if an alien has a conviction under the specified
federal statute, the categorical or modified categorical approach has no role to play because no
comparison to generic crimes or elements is necessary. Rather, the statute tells us that an offense
under the specified federal statute qualifies as an aggravated felony. The inquiry ends there.
Germain’s argument that the “is described in” language in subparagraph (P) requires the
use of the categorical or modified categorical approach to determine whether his § 1546(a)
convictions qualify is unpersuasive. His argument overlooks “[§] 1101(a)(43)’s penultimate
sentence,” which provides that “[t]he term [aggravated felony] applies to an offense described in
this paragraph whether in violation of Federal or State law and applies to such an offense in
violation of the law of a foreign country for which the term of imprisonment was completed
within the previous 15 years.” Torres v. Lynch, 136 S. Ct. 1619, 1626 (2016). In other words,
“state and foreign analogues of the enumerated federal crimes qualify as aggravated felonies.”
Id. Thus, under subparagraph (P), when examining a state or foreign conviction, the court would
have to determine whether the state or foreign conviction was for an offense that “is described in
§ 1546(a),” and that inquiry may involve application of the categorical or modified categorical
approach. But where the offense of conviction is for the enumerated federal crime, there is no
need to determine whether the conviction is for an offense that “is described in § 1546(a).” In
short, it is unnecessary to compare a statute to itself. See Doe v. Sessions, 886 F.3d 203, 208 (2d
Cir. 2018) (declining to compare a federal statute, the Controlled Substances Act, to itself to
determine whether the alien’s conviction under the Controlled Substances Act was an
“aggravated felony” under the INA); see also Moncrieffe v. Holder, 569 U.S. 184, 211 (2013)
(Alito, J., dissenting) (“Where an alien has a prior federal conviction, it is a straightforward
matter to determine whether the conviction was for a ‘felony punishable under the [Controlled
Substances Act].’” (emphasis added)).
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PETITION DENIED.
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