GOURCHE v. Holder
663 F.3d 882
| 7th Cir. | 2011Background
- Gourche, a Moroccan national, entered the U.S. in 1998 as a visitor and later adjusted to conditional permanent residency after marrying a U.S. citizen.
- He filed an I-751 to remove conditions on residence, falsely claiming cohabitation with his spouse.
- The false representation was discovered; in 2006 Gourche pled guilty to conspiracy to commit application fraud under 18 U.S.C. § 371 for conspiring to violate § 1546(a).
- In January 2007, he was served with a notice to appear in removal proceedings.
- An IJ held Gourche removable under § 1227(a)(3)(B)(iii) due to the § 1546 conspiracy conviction and denied a § 1227(a)(1)(H) waiver; the Board affirmed removability and ineligibility for waiver; Gourche petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Gourche removable under § 1227(a)(3)(B)(iii)? | Gourche contends the subsection applies only to a subset of § 1546 convictions. | The parenthetical is descriptive, not limiting; any § 1546 conviction qualifies if it relates to fraud in entry documents. | Yes; Gourche is removable under § 1227(a)(3)(B)(iii). |
| Is Gourche eligible for a § 1227(a)(1)(H) waiver? | Argues eligibility under § 1182(a)(6)(C)(i) and that misrepresentation at I-751 admission makes him a spouse of a citizen with possible waiver. | Waiver under § 1227(a)(1)(H) only applies to grounds of removability described in § 1227(a)(1); not available for removability under § 1227(a)(3)(B)(iii). | Ineligible for the waiver; § 1227(a)(3)(B)(iii) ground is distinct from § 1227(a)(1) grounds, so no waiver. |
Key Cases Cited
- Barma v. Holder, 640 F.3d 749 (7th Cir. 2011) (used to discuss statutory interpretation of hierarchical scheme and related provisions)
- Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) (descriptive vs. limiting 'relating to' parentheticals)
- United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001) (descriptive 'relating to' language used in defining offenses)
- United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001) (descriptive 'relating to' language in related-offense context)
- United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999) (descriptive vs. limiting interpretation of cross-referenced offenses)