[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 :

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 1 of 152 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 t he 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 rem ovable under 8 U.S.C. § 1227(a) (2)(A)(iii) and made him ineligible for cance l lation 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 t o 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 statement s in an immigration applic ation and sentenced to 18 months’ imprisonment for each of those conviction s . Germain argues, however, that he did not commit an “aggravated felony” under § 1101(a)(43)(P) because his conviction s under § 1546(a) w ere not “(relating to document fraud).”
I n 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

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 2 of 153 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 l awful p ermanent

r esiden t

. Roughly t en 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 w e 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 mot ion to terminate that he was not removable on this ground, the IJ

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 3 of 154 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 convi cted 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 pare nthetical “(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 beca use

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 h is § 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. USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 4 of 155 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 removab ility 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 fa lse 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 cancel lation 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.

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 5 of 156 and ineligible for c ancellation 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 fel onies 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 beca use § 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

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 6 of 157 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, 133 5 (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 qualif y , 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) an d (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 “c ontains 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:

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 7 of 158 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, a ttempts 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 t he 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 di stinctive 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 assum ed 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 Whoe ver 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 USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 8 of 159 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 docume nt 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 f ourth 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 impermissib le collateral attack on the sufficiency of the evidence supporting his prior convicti ons, 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

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 9 of 1510 “The first rule in statutory construction is t o 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 meani ng 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
argum ent: 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 § 1 546(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 und ermined.

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).

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 10 of 1511 Our conclusion that the parenthetical “(relating to document fraud)” is merely descriptive is further bolstered by the fac t that 8 U.S.C. § 1101(a)(43)(P) does not contain any words that are limiting in nature. In a neighboring provision, Cong ress 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 Tech s . Corp. , 973 F.3d 1254, 126 1 (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)

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 11 of 1512 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) ; i d. § 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

- Men doza , 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 inter preted 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, 88 4

– 86 (7th Cir. 2011) (holding that the

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 12 of 1513 “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, 32 8, 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
aggrav ated 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 “(relat ing 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 1 8 U.S.C. § 1546(a) and his sentence was greater than one year, his conviction expressly falls within the

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 13 of 1514 definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(P). 6 Ac cordingly, 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. W e 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 cate gorical 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 fe lony. 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 ap proach 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 “ i s 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 sent ence,” 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 impr isonment 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 e xamining a state or foreign conviction, the court would have to determine whether the state or foreign conviction was for an offense that “ i s described in § 1546(a) , ” and that inquiry may involve application of the categorical or modified categorical appro ach

. B ut 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 “ i s 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 Substance s Act, to itself to determine whether the alien’s conviction under the Controlled Substance s 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 Substance s Ac t].’” (emphasis added)).

USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 14 of 1515 PETITION DENIED. USCA11 Case: 20-11419 Date Filed: 08/18/2021 Page: 15 of 15