Germain v. U.S. Attorney Gen.

• Decision Date: 18 August 2021
• Docket Number: No. 20-11419,20-11419
• Citation: 9 F.4th 1319
• Parties: Emmanuely GERMAIN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

9 F.4th 1319

Emmanuely GERMAIN, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 20-11419

United States Court of Appeals, Eleventh Circuit.

August 18, 2021

H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Petitioner.

Dana Michelle Camilleri, OIL, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel-ATL, Atlanta, GA, for Respondent.

Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.

BRANCH, Circuit Judge:

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 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

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 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) 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 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:

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

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