Rachid Gourche v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1622
RACHID GOURCHE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A077-575-211
ARGUED SEPTEMBER 21, 2011—DECIDED NOVEMBER 9, 2011
Before EASTERBROOK, Chief Judge, and TINDER and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Rachid Gourche, an alien who
has been ordered removed from the United States, peti-
tions for review of an order of the Board of Immigration
Appeals ordering his removal. We hold that petitioner
is removable as charged based on his prior criminal

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2 No. 11-1622
At some point Gourche and his first wife divorced. On 1
March 17, 2007, Gourche married another United States
citizen to whom he remains married.
conviction for conspiring to submit false immigration
documents. We therefore deny the petition.
I. Factual and Procedural Background
Petitioner Gourche is a native and citizen of Morocco
who entered the United States as a visitor in
1998. On November 7, 1998, Gourche married a United
States citizen and later adjusted his status to that of
a lawful permanent resident on a conditional basis.
Gourche then filed an I-751 petition to remove the condi-
tions on his residency. He falsely represented that he
and his wife were living together when in fact they
were not. The false I-751 petition was granted on June 10,
2002. The original falsehood came to light several years
later, and in 2006, Gourche pled guilty to conspiracy
to commit application fraud stemming from his false
representation on his I-751 petition. He was convicted
under 18 U.S.C. § 371 (the general conspiracy statute)
for conspiring to violate 18 U.S.C. § 1546(a) (fraud in
immigration documents). In January 2007, Gourche was
served with a notice to appear in removal proceedings.1
After a hearing, an immigration judge found
that Gourche was removable under both 8 U.S.C.
§ 1227(a)(3)(B)(iii), as a result of his conviction for con-
spiracy to violate § 1546, and 8 U.S.C. § 1227(a)(1)(A),

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No. 11-1622 3
because his fraud was committed at the time he adjusted
his status. The immigration judge also denied Gourche’s
petition for waiver under 8 U.S.C. § 1227(a)(1)(H) on
the grounds that (1) the waiver does not apply to
fraud at the time of adjustment of status; (2) the waiver
provision cannot waive removability under 8 U.S.C.
§ 1227(a)(3)(B)(iii); and (3) Gourche had failed to show
that he was “otherwise admissible” to the United States.
Gourche appealed the immigration judge’s decision to
the Board of Immigration Appeals. The Board dismissed
the appeal on the grounds that (1) Gourche is removable
under 8 U.S.C. § 1227(a)(3)(B)(iii) as a result of his § 1546
conspiracy conviction; and (2) Gourche is not eligible
for waiver under 8 U.S.C. § 1227(a)(1)(H) because that
provision waives grounds of removability only under
paragraph (a)(1) of § 1227, and Gourche is removable
under paragraph (a)(3). The Board also noted that
removability under § 1227(a)(3)(B)(iii) is not based on
the grounds of inadmissibility directly resulting from
fraud, but is instead an independent ground
of deportability tied to the existence of a conviction.
Because the Board found Gourche removable under
8 U.S.C. § 1227(a)(3)(B)(iii) and not eligible for waiver,
it did not reach the other grounds on which he chal-
lenged the immigration judge’s decision.
Gourche seeks review of the Board’s decision. He
argues first that he is not deportable because only a
subset of violations of 18 U.S.C. § 1546 (and attempts
and conspiracies) qualifies for deportability under
§ 1227(a)(3)(B)(iii), and his conviction does not fall

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4 No. 11-1622
Because we affirm the Board’s findings that Gourche is 2
removable under 8 U.S.C. § 1227(a)(3)(B)(iii), as a result of his
conspiracy conviction, and that ground of removability is
ineligible for waiver under 8 U.S.C. § 1227(a)(1)(H), we, like the
Board, do not reach the immigration judge’s decision that
Gourche is removable under 8 U.S.C. § 1227(a)(1)(A) and that
he cannot use 8 U.S.C. § 1227(a)(1)(H) to waive the under-
lying fraud.
into that subset. He argues second that he is eligible
for a discretionary waiver of deportability under
§ 1227(a)(1)(H). This court has jurisdiction to review a
final order of removal under 8 U.S.C. § 1252(a). We
review the Board’s legal finding de novo, but we defer
to the Board’s reasonable interpretation of the statutes
it administers, when “the intent of Congress with
respect to the matter at issue is not clear.” Borca v. INS,
77 F.3d 210, 214 (7th Cir. 1996); see also Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-45 (1984).2
II. Removability Under 8 U.S.C. § 1227(a)(3)(B)(iii)
8 U.S.C. § 1227 defines classes of deportable aliens.
The provision at the center of this case — 8 U.S.C.
§ 1227(a)(3)(B)(iii) reads in relevant part: “Any 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.” Gourche
was convicted of conspiracy to violate § 1546, so he is
deportable.

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No. 11-1622 5
To avoid this straightforward result, Gourche argues
that the parenthetical phrase appearing after “section 1546
of title 18” is “self-limiting,” that is, that the universe
of § 1546 convictions that qualify for removal under
§ 1227(a)(3)(B)(iii) is narrower than the universe of
all § 1546 convictions. This argument is based on the
reference in the parenthetical to “other entry docu-
ments” (emphasis added), where the title and content of
§ 1546 cover fraud and misuse of a broader category
of immigration documents. Gourche argues that the
I-751 form (the form on which he falsely stated he and
his wife were living together) is an immigration form
but is not a “visa, permit, or other entry document,”
so his conviction for conspiracy to violate § 1546 does
not make him removable under § 1227(a)(3)(B)(iii). In
other words, he argues that the parenthetical phrase
in § 1227(a)(3)(B)(iii) is limiting as opposed to merely
descriptive. We disagree.
In ascertaining the meaning of a statute, we look to
the language and the structure of the statutory provi-
sions. Barma v. Holder, 640 F.3d 749, 751 (7th Cir. 2011);
United States v. Webber, 536 F.3d 584, 593 (7th Cir. 2008).
In this case, both the language of the parenthetical
phrase and the structure of the provision demon-
strate that Congress intended only to provide a con-
venient shorthand description of § 1546 (prohibiting
fraud and misuse of visas, permits, and other docu-
ments) rather than to limit the class of aliens deportable
under § 1227(a)(3)(B)(iii).
Another provision of the Immigration and Naturaliza-
tion Act, similar in structure to § 1227, illustrates the

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6 No. 11-1622
difference between descriptive and limiting paren-
theticals. Section 1101(a)(43) defines an “aggravated
felony,” another removable offense, in large part by
referring to offenses that appear elsewhere in the U.S.
Code. See 8 U.S.C. § 1101(a)(43) (defining “aggravated
felony”). Many of those statutory references are fol-
lowed by parentheticals that use the phrase “relating to,”
describing the subject matter of the cited statute. See,
e.g., 8 U.S.C. § 1101(a)(43)(D), (E), (H), (I), (J), (K), (L), (M),
(P). These descriptive parentheticals are different from
other subparagraphs of the aggravated felony defini-
tion that use parentheticals explicitly to limit those
offenses that may constitute an aggravated felony. See,
e.g., 8 U.S.C. § 1101(a)(43)(F) (“a crime of violence (as
defined in section 16 of title 18, but not including a
purely political offense) for which the term of imprison-
ment [is] at least one year”) (emphasis added); 8 U.S.C.
§ 1101(a)(43)(J) (“an offense described in section 1084
(if it is a second or subsequent offense)”) (emphasis
added); 8 U.S.C. § 1101(a)(43)(N) (“an offense described
in paragraph (1)(A) or (2) of section 1324(a) of this title
(relating to alien smuggling), except in the case of a first
offense”) (emphasis added).
Based on these differences in language, other circuits
have decided the “relating to” parentheticals are descrip-
tive, not limiting. See Patel v. Ashcroft, 294 F.3d 465, 470-
71 (3d Cir. 2002), superseded on other grounds by statute,
REAL ID Act of 2005, Pub. L. No. 109-13, div. B, § 106, 119
Stat. 231; United States v. Galindo-Gallegos, 244 F.3d 728, 733-
34 (9th Cir. 2001) (as amended); United States v. Salas-
Mendoza, 237 F.3d 1246, 1247-48 (10th Cir. 2001); United

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No. 11-1622 7
States v. Monjaras-Castaneda, 190 F.3d 326, 330-31 (5th Cir.
1999). But see Evangelista v. Ashcroft, 359 F.3d 145, 152
(2d Cir. 2004) (declining to apply the Fifth Circuit’s ap-
proach in Monjaras-Castaneda to analysis of 8 U.S.C.
§ 1101(a)(43)(M)(ii)).
Like the subparagraphs of § 1101(a)(43)’s definition
of “aggravated felony,” § 1227(a)(3)(B)(iii) defines a
class of deportable aliens by referring to offenses
that appear elsewhere in the U.S. Code. As in those sub-
paragraphs, § 1227(a)(3)(B)(iii)’s reference to § 1546 is
followed by a “relating to” parenthetical that describes
the subject matter of the statute referenced. Unlike “but
not including,” “if,” or “except,” the phrase “relating to”
is not restrictive or conditional language. The “relating
to” parenthetical merely provides a convenient cue to a
reader who might not instantly grasp the meaning of
the numerical reference.
The absence of limiting language in the parenthetical
description of § 1546 shows that Congress intended
the parenthetical as a descriptive shorthand, a way to
signal a reader about the content of a statute outside
the Immigration and Naturalization Act, rather than
as a limiting clause that would restrict the universe of
§ 1546 fraud and misuse convictions that make an
alien deportable under § 1227(a)(3)(B)(iii). In addition,
Gourche has not suggested, and we have not been able
even to imagine, a reason why Congress would have (a)
wanted to draw a line for purposes of deportability
between fraud in immigration documents presented at
the time of entry and fraud in other immigration docu-

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8 No. 11-1622
“Any alien who, by fraud or willfully misrepresenting a 3
material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into
the United States or other benefit provided under this chapter
is inadmissible.”
ments, or (b) chosen to draw such a line with such
oblique language. Because Gourche was convicted
of conspiracy to violate 18 U.S.C. § 1546, the Board did
not err in finding him removable under 8 U.S.C.
§ 1227(a)(3)(B)(iii).
III. Eligibility for Waiver Under 8 U.S.C. § 1227(a)(1)(H)
Some deportable aliens are eligible for a discretionary
waiver of the grounds on which they are removable.
Section 1227(a)(1)(H) permits the Attorney General to
waive removal for aliens who were inadmissible at
the time of admission as described in § 1182(a)(6)(C)(i)3
where (1) the alien is the spouse of a U.S. citizen and
(2) had a visa or equivalent document and (3) was other-
wise admissible at the time of admission. Petitioner
Gourche argues that he falls within the ambit of
§ 1182(a)(6)(C)(i) because his misrepresentation on
Form I-751 allowed him to adjust his status based on his
first marriage, and adjustment of status is an admission.
His second, legitimate marriage makes him the spouse
of a U.S. citizen, and he possessed a conditional residency
card, which he argues is equivalent to a visa. Because
he fits the elements of § 1227(a)(1)(H)’s waiver provision
and § 1182(a)(6)(C)(i)’s definition of an alien who was

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No. 11-1622 9
inadmissible at the time of admission, his argument
continues, his second, legitimate marriage makes him
eligible for a waiver of the underlying fraud.
Even assuming for the sake of argument that Gourche
is eligible under § 1227(a)(1) for a waiver of the under-
lying fraud, that eligibility is not relevant to his remova-
bility under 8 U.S.C. § 1227(a)(3)(B)(iii), which is based
on his conviction for conspiracy to violate 18 U.S.C. § 1546
(fraud or misuse of visas, permits, and other documents).
Section 1227(a)(3)(B)(iii) defines a ground of removability
that is legally distinct from the grounds for removal
contained in paragraph (a)(1) (alien inadmissible at time
of entry or of adjustment of status or violates status).
Gourche’s eligibility for a § 1227(a)(1)(H) waiver depends
not on whether a § 1227(a)(1)(H) waiver can waive
the fraud but on whether a § 1227(a)(1)(H) waiver can
waive removability based on § 1227(a)(3)(B)(iii) (making
deportable alien convicted of a violation of, or an
attempt or a conspiracy to violate, 18 U.S.C. § 1546).
The key phrase here is “provisions of this paragraph”
in § 1227(a)(1)(H). As noted, in determining the meaning
of a statute, we start first with the text and structure of
that statute. E.g., Ortega v. Holder, 592 F.3d 738, 743 (7th
Cir. 2010). As the Supreme Court has recognized, in
subdividing statutory sections, “Congress ordinarily
adheres to a hierarchical scheme” set forth in drafting
manuals prepared by the legislative counsel’s offices in
the House and the Senate. Koons Buick Pontiac GMC, Inc. v.
Nigh, 543 U.S. 50, 60 (2004). The House and Senate
manuals both provide for subsections (beginning with

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10 No. 11-1622
small letters), paragraphs (beginning with arabic num-
bers), subparagraphs (beginning with capital letters),
and clauses (beginning with romanette numerals). Id.
at 60-61.
Section 1227, which defines classes of deportable aliens,
follows this hierarchical scheme with its division into
subsections, paragraphs, subparagraphs, and clauses.
Taking into consideration the hierarchical scheme
used by Congress in drafting § 1227’s classification of
deportable aliens, as well as the language and structure
of § 1227, it is clear that the phrase “this paragraph” in
subparagraph (H)’s waiver provision refers only to para-
graph (1) of subsection (a). There is no language in sub-
paragraph (H)’s waiver provision indicating that the
phrase “this paragraph” refers to a paragraph other
than (a)(1), in which subparagraph (H) appears. Nor
is there any indication that the singular phrase “this
paragraph” encompasses any paragraph in addition
to paragraph (a)(1).
Because a conviction for conspiracy to violate 18 U.S.C.
§ 1546 is grounds for removal under paragraph (3)
of 8 U.S.C. § 1227(a), and not under paragraph (1), peti-
tioner Gourche is ineligible for a § 1227(a)(1)(H) waiver.
Accordingly, the petition for review is DENIED.
11-9-11

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