9 F.4th 1319
11th Cir.2021Background
- Emmanuely Germain, a lawful permanent resident admitted in 2007, was convicted in federal court of one count under 18 U.S.C. § 371 and three counts under the fourth paragraph of 18 U.S.C. § 1546(a); each conviction carried an 18‑month sentence.
- DHS issued a Notice to Appear charging removability as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) based on the § 1546(a) convictions and alternatively under § 1227(a)(3)(B)(iii) for violating § 1546.
- Germain moved to terminate and applied for cancellation of removal, arguing his § 1546(a) convictions did not qualify as an "aggravated felony" because the INA’s parenthetical “(relating to document fraud)” limits § 1101(a)(43)(P) to only certain kinds of § 1546(a) offenses.
- The IJ found § 1546(a) divisible, applied the modified categorical approach, and concluded Germain’s convictions qualified as aggravated felonies; the BIA affirmed but held the categorical approach was proper because § 1546(a) is expressly enumerated in the aggravated‑felony definition.
- The Eleventh Circuit reviewed the statutory‑interpretation question de novo and denied Germain’s petition, holding the parenthetical is descriptive, all four paragraphs of § 1546(a) relate to document fraud, and Germain’s § 1546(a)(4) conviction is an aggravated felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parenthetical “(relating to document fraud)” in 8 U.S.C. § 1101(a)(43)(P) limits which § 1546(a) offenses qualify as aggravated felonies | Germain: the parenthetical limits the definition so paragraph 4 convictions (false statements about fees) do not "relate to document fraud" and thus are not aggravated felonies | Government/BIA: the parenthetical is a descriptive shorthand; § 1546(a) as a whole relates to document fraud, so any § 1546(a) conviction fits the enumerated aggravated‑felony category | Court: parenthetical is descriptive; all four paragraphs of § 1546(a) involve document‑fraud‑related conduct; Germain’s conviction qualifies as an aggravated felony |
| Whether the categorical or modified categorical approach applies to a federal § 1546(a) conviction when § 1101(a)(43)(P) expressly references § 1546(a) | Germain: modified categorical approach required to identify the specific offense elements | Government/BIA: no need for modified categorical approach because the federal statute is expressly enumerated | Court: categorical approach governs here; when the federal statute itself is listed, no element‑comparison is necessary; modified categorical applies only when comparing non‑federal statutes to the enumerated federal offense |
| Whether Germain may attack factual sufficiency (knowledge/intent) of his prior § 1546(a) conviction in removal proceedings | Germain: his statements were non‑fraudulent or made unknowingly, so conviction did not "relate to document fraud" | Government: such claims amount to an impermissible collateral attack on the prior conviction | Court: collateral‑attack arguments about conviction sufficiency are barred and not considered |
Key Cases Cited
- United States v. Jimenez, 972 F.3d 1183 (11th Cir. 2020) (§ 1546(a)’s paragraphs each criminalize fraudulent conduct involving immigration documents)
- Russello v. United States, 464 U.S. 16 (1983) (expressio unius canon: differing text across provisions evidences Congress’s intent)
- Torres v. Lynch, 136 S. Ct. 1619 (2016) (§ 1101(a)(43) applies to offenses "described in" enumerated federal statutes, including state/foreign analogues)
- Gourche v. Holder, 663 F.3d 882 (7th Cir. 2011) ("relating to" parenthetical in INA treated as descriptive, not limiting)
- United States v. Monjaras‑Castaneda, 190 F.3d 326 (5th Cir. 1999) (similar holding that INA parenthetical is descriptive)
- Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) (descriptive function of INA parentheticals)
- Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018) (declining to compare a federal statute to itself when determining whether a federal conviction fits an enumerated offense)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (discussing categorical approach principles)