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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 19-10987
D.C. Docket No. 1:18-cr-20857-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
RUBERMAN ARDON CHINCHILLA,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Florida
(February 11, 2021)
Before WILSON, LAGOA, and HULL, Circuit Judges.
LAGOA, Circuit Judge: USCA11 Case: 19-10987 Date Filed: 02/11/2021 Page: 2 of 24
A federal grand jury returned a two-count superseding indictment against
Ruberman Ardon Chinchilla, charging him with violating 18 U.S.C § 1546(a) by
allegedly using a fraudulent order of supervision to obtain a driver’s license from
the Florida Department of Highway Safety and Motor Vehicles (“Florida
DHSMV”). 18 U.S.C. § 1546(a) criminalizes the knowing use, attempt to use or
possession of a forged, counterfeited, altered, fraudulently procured, or unlawfully
obtained document prescribed by statute or regulation for entry into or as evidence
of authorized stay or employment in the United States. This appeal asks us to
determine whether an order of supervision constitutes a “document prescribed by
statute or regulation . . . as evidence of authorized stay . . . in the United States”
under 18 U.S.C. § 1546(a).
Pursuant to 8 C.F.R. §§ 241.13, 241.4, and 241.5, the United States
Immigration & Customs Enforcement (“ICE”) may issue an order of supervision to
aliens unlawfully present in the United States. An order of supervision authorizes
an unlawful alien to be released from custody into the community and to remain
living in the United States for an indefinite period of time (often many years)
pending removal. On its face, an order of supervision states that the alien is
“permitted to be at large” subject to the conditions set forth in the order. Orders of
supervision may authorize the alien to seek employment in the United States, see id.
§ 241.5(c), and various federal regulations identify orders of supervision as evidence
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of lawful presence in the United States for purposes of receiving Social Security and
federal health care benefits. Additionally, the State of Florida accepts from
applicants seeking to obtain a Florida driver’s license an order of supervision as
proof of legal presence in the United States.
Chinchilla moved to dismiss the superseding indictment for failing to state an
offense under § 1546(a), arguing that the term “authorized stay” means “lawful
presence” in the United States and that no federal statute or regulation expressly
identifies an order of supervision as “evidence of authorized stay in the United
States.” The district court dismissed the superseding indictment after concluding
that an order of supervision does not qualify as a document “prescribed by statute or
regulation . . . as evidence of authorized stay . . . in the United States” as required by
§ 1546(a). After careful review and with the benefit of oral argument, we reverse
the district court’s order dismissing the superseding indictment and remand for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
To obtain a Florida driver’s license, an applicant must provide the Florida
DHSMV documents meeting certain federally-mandated minimum issuance
standards that verify his identity and legal presence in the United States. See 6
C.F.R. § 37.11 (2019) (establishing minimum standards for states to issue driver’s
licenses and personal identification cards). One of the documents that the Florida
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DHSMV accepts as proof of legal presence in the United States is a federal
immigration document called an order of supervision. Chinchilla, a native of
Honduras, presented a fraudulent order of supervision to the Florida DHSMV on
two separate occasions in his attempts to obtain a driver’s license. Chinchilla
succeeded on his second attempt and was later arrested for using a fraudulent order
of supervision in that process.
The grand jury’s superseding indictment charged Chinchilla with two counts
of violating § 1546(a). Each count of the superseding indictment alleged that
Chinchilla “knowingly possess[ed], us[ed], and attempt[ed] to use a document
prescribed by statute and regulation as evidence of authorized stay in the United
States, that is, a[n] . . . Order of Supervision, knowing it to be forged, counterfeited,
altered, and falsely made” in violation of § 1546(a).
Chinchilla moved to dismiss the superseding indictment for failing to state an
offense under § 1546(a). In his motion to dismiss, Chinchilla argued that the term
“authorized stay” means “lawful presence” in the United States and that no federal
statute or regulation expressly identifies an order of supervision as “evidence of
authorized stay in the United States.” The district court granted Chinchilla’s motion
and dismissed the superseding indictment. The government moved for
reconsideration of the dismissal order, which the district court denied. This timely
appeal followed. We have jurisdiction under 28 U.S.C. § 1291.
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II. STANDARD OF REVIEW
The interpretation of a criminal statute is a legal question we review de novo.
United States v. Williams, 790 F.3d 1240, 1244 (11th Cir. 2015). A district court’s
legal conclusions are likewise reviewed de novo. United States v. Castro, 89 F.3d
1443, 1450 (11th Cir. 1996).
III. ANALYSIS
18 U.S.C. § 1546(a) states in pertinent part that:
Whoever knowingly . . . uses, attempts to use, [or] possesses . . . 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 otherwise procured by fraud or unlawfully obtained . . . [s]hall be fined under this title or imprisoned . . . .
To prevail on a charge under this provision of § 1546(a), the government must prove
three elements: (1) the defendant knowingly used, attempted to use, or possessed;
(2) a document specified in the provision, or, as is the case here, a document
prescribed by statute or regulation as evidence of authorized stay in the United
States; and (3) the defendant knew that the document was “forged, counterfeited,
altered, or falsely made.” See United States v. Ryan-Webster, 353 F.3d 353, 360
n.11 (4th Cir. 2003). Only the second element is at issue in this appeal—whether an
order of supervision is a “document prescribed by statute or regulation . . . as
evidence of authorized stay . . . in the United States.” Both the government and
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Chinchilla agree that there are no express definitions for the terms found in the “other
document” clause.
Chinchilla advances two separate arguments in support of the district court’s
dismissal of the superseding indictment. First, Chinchilla argues that because an
alien subject to an order of supervision necessarily maintains an unlawful
immigration status, an order of supervision cannot be evidence of “authorized stay”
in the United States. In support of his argument, Chinchilla contends that the phrase
“authorized stay” used in § 1546(a) is defined in the Citizenship and Immigration
Service’s Adjudicator’s Field Manual (“AFM”), which Chinchilla asserts uses the
phrases “lawful presence” and “authorized stay” synonymously. Second, Chinchilla
argues that an order of supervision does not fall within § 1546(a)’s “other document”
clause because no federal statute or regulation lists or otherwise identifies an order
of supervision as “evidence of authorized stay in the United States.”
The government agrees that an order of supervision does not confer status or
benefits under the federal immigration laws. The government argues, however, that
the language of § 1546(a)’s “other document” clause should be given its plain and
ordinary meaning, rather than using technical definitions from the federal
immigration laws. And, according to the government, an order of supervision falls
within § 1546(a)’s “other document” clause because an order of supervision permits
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an unlawful alien to stay in the United States with the government’s conditional
permission pending his removal at some indeterminate point in the future.
A. Section 1546(a)
In 1986, Congress amended § 1546 after the United States Supreme Court in
United States v. Campos-Serrano, 404 U.S. 293 (1972), narrowly construed the
earlier pre-1986 version of the statute, which referred only to “visas[s], permit[s], or
other documents[s] required for entry into the United States.” In Campos-Serrano,
the Supreme Court concluded that a counterfeit alien registration card did not fall
within the statute’s scope because while an alien registration card could be used to
reenter the United States, its primary purpose was to “effectuate the registration
requirement for all resident aliens,” and not to facilitate entry into the United States.
Id. at 296, 300. As a result, in 1986, Congress abrogated Campos-Serrano and
amended § 1546(a) by expanding the statute’s scope to include other documents in
addition to the ones already listed. Specifically, Congress added “alien registration
receipt card” and “border crossing card” to the list of specifically named documents.
See Immigration Reform and Control Act, Pub.L.No. 99-6-3, § 103(a)(2)-(3), 100
Stat. 3359 (1986); See also, Ryan-Webster, 353 F.3d at 362–63 (explaining
Congress’s amendment to § 1546(a)). Congress further amended the “other
document” clause. First, it replaced the phrase, “other document required for entry
into the United States,” with the phrase, “other document prescribed by statute or
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regulation for entry into” into the United States. (emphasis added) Second, Congress
amended the statute by adding to the “other document” clause not just documents
for entry into the United States but also a “document prescribed by statute or
regulation…as evidence of authorized stay or employment in the United States.”
(emphasis added).
In order to answer the issue before us, we must therefore first determine the
meaning of § 1546(a)’s catch-all phrase, “other document prescribed by statute or
regulation . . . as evidence of authorized stay . . . in the United States.” The
fundamental principle governing any exercise in statutory construction is that “we
‘begin [] where all such inquiries must begin: with the language of the statute itself,’
and we give effect to the plain terms of the statute.” In re Valone, 784 F.3d 1398,
1402 (11th Cir. 2015) (alteration in original) (quoting United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989)).
Because the terms used in the “other document” clause are not defined in §
1546(a), and because § 1546(a) does not cross-reference or otherwise direct the
reader to any other statute for guidance, we look to the plain and ordinary meaning
of the statutory language as it was understood at the time the law was enacted. See
Perrin v. United States, 444 U.S. 37, 42 (1979) (stating that it is a tenet of statutory
construction “that, unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning”); CBS Inc. v. PrimeTime 24 Joint
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Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (“In the absence of a statutory
definition of a term, we look to the common usage of words for their meaning.”
(quoting Consolidated Bank, N.A. v. U.S. Dep’t of Treasury, 118 F.3d 1461, 1464
(11th Cir. 1997))); see United States v. Rahman, 189 F.3d 88, 119 (2d Cir. 1999)
(examining only the plain language when interpreting the “other document” clause
in § 1546(a)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 69 n.1 (2012) (quoting James Kent, Commentaries on American Law
432 (1826), for the proposition that “[t]he words of a statute are to be taken in their
natural and ordinary signification and import; and if technical words are used, they
are to be taken in a technical sense”).
When examining the plain and ordinary meaning of a statute, “one of the ways
to figure out that meaning is by looking at dictionaries in existence around the time
of enactment.” Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852
F.3d 1018, 1026 (11th Cir. 2016). Looking to dictionaries in existence around the
time of enactment, we find that “Prescribe” means “to write or lay down as a rule or
direction; to appoint, ordain, direct, enjoin.” Prescribe, The Oxford English
Dictionary (2d ed. 1989). “Evidence” means “Ground for belief; testimony or facts
tending to prove or disapprove any conclusion.” Evidence, The Oxford English
Dictionary (2d ed. 1989). “Authorize” means “to give formal approval to; to
sanction, approve, countenance.” Authorize, The Oxford English Dictionary (2d ed.
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1989). Finally, a “stay” is “the action or fact of staying or remaining in a place,
continued presence; an instance of this, a period of temporary residence, a
sojourn.” Stay, The Oxford English Dictionary (2d ed. 1989).
Given the above ordinary understanding of the words used in the “other
documents” clause, we conclude that the terms used in § 1546(a)’s relevant clause—
“prescribed by statute or regulation . . . as evidence of authorized stay. . . in the
United States”—refer to a document directed by a statute or regulation as proof that
its recipient has formal approval to temporarily remain in the United States. See,
e.g., Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007) (holding that an
“advance parole form” is evidence of authorized stay in the United States because it
allows an alien to be physically present or “temporarily remain” in the United States
despite the alien’s unlawful status); Rahman, 189 F.3d at 118–19 (stating that § 1546
“covers the possession of any document prescribed—here used as a synonym for
‘designated’—by statute or regulation for entry into the United States, knowing it to
be forged” and holding that a foreign passport is “a document ‘prescribed by statute
or regulation for entry into . . . the United States’”). Section 1546(a)’s “other
document” clause says nothing about the duration of the authorized stay, nor does it
address whether the alien’s immigration status must be lawful.
We now turn to the question of whether an order of supervision constitutes a
document prescribed by federal statute or regulation “as evidence of authorized stay”
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in the United States, i.e., as showing proof that the recipient of the document has
formal approval to remain in the United States.
B. Orders of Supervision
For the government to remove 1 an unlawful alien from the United States, an
immigration judge must first issue a “final removal order” against the alien. See
generally 8 C.F.R. § 1241.1 (2019) (discussing when a removal order becomes
final). Generally, an alien must be physically removed from the United States within
ninety days of a final removal order, 8 U.S.C. § 1231(a)(1)(A), and after a final
removal order is issued, ICE may detain the alien until ICE arranges for
transportation to the designated country of removal, see id. § 1231(a)(2).
For a variety of reasons, however, removal from the United States often
cannot be effected within the ninety-day removal period. See, e.g., 8 C.F.R. §§
241.13, 241.15 (2019). Immigration law provides that, “[i]f the alien does not leave
or is not removed within the removal period, the alien, pending removal, shall be
subject to supervision under regulations prescribed by the Attorney General.” 8
U.S.C. § 1231(a)(3). The statutory language leaves the time period for removal
indefinite, i.e., “pending removal.” The document prescribed by regulation for
1 Deportation is now described as “removal” in the federal immigration statutes. Evangelista v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir. 2004).
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issuance to an alien falling into this category is the “Form I-220B, Order of
Supervision.” See 8 C.F.R. § 241.5 (2019).
An order of supervision does not change an alien’s immigration status—he
maintains an unlawful immigration status and he remains subject to the final order
of removal. Nonetheless, until he is actually removed from the United States, an
alien subject to an order of supervision is released into and resides in the United
States for an indefinite—and not necessarily short2—period of time as long as he
complies with the order’s conditions. See, e.g., Sihotang v. Sessions, 900 F.3d 46,
49 (1st Cir. 2018) (“Notwithstanding the expiration of the voluntary departure
period, federal authorities allowed the petitioner to remain in the United States under
an order of supervision for almost ten years.”); Duron v. Johnson, 898 F.3d 644, 646
(5th Cir. 2018) (“For several years, United States Immigration and Customs
Enforcement (ICE) permitted [Petitioner] to remain in the country under an Order
of Supervision.”). Indeed, an order of supervision often is the only document issued
by the federal government memorializing the fact that the government is permitting
the alien to remain at large in the United States pending removal. In order to remove
an unlawful alien subject to an order of supervision, immigration officials must first
2 As acknowledged by Chinchilla, the process can take decades.
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revoke the order of supervision, see 8 C.F.R. § 241.4(l), and must notify the alien of
“the reasons for revocation,” see id. § 241.13(i)(3).
In order to issue an order of supervision, immigration officials “must
conclude” the following:
(1) Travel documents for the alien are not available or, in the opinion of the Service, immediate removal, while proper, is otherwise not practicable or not in the public interest;
(2) The detainee is presently a non-violent person;
(3) The detainee is likely to remain nonviolent if released;
(4) The detainee is not likely to pose a threat to the community following release;
(5) The detainee is not likely to violate the conditions of release; and
(6) The detainee does not pose a significant flight risk if released.
Id. § 241.4(e) (emphasis added). Moreover, “[n]o detainee may be released until
sponsorship, housing, or other placement has been found for the detainee, if ordered,
including but not limited to, evidence of financial support.” See id. § 241.4(j)(2).
Immigration officials may “condition release on placement with a close relative who
agrees to act as a sponsor . . . or may condition release on the alien’s placement or
participation in an approved halfway house, mental health project, or community
project,” if necessary. Id. Further, immigration officials must consider whether the
unlawful alien will “[a]djust to life in a community” as one of the factors for release.
See id. § 241.4(f)(8)(i).
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Regarding the conditions of release themselves, an order of supervision “shall
specify conditions of supervision including, but not limited to,” the following:
(1) A requirement that the alien report to a specified officer periodically and provide relevant information under oath as directed;
(2) A requirement that the alien continue efforts to obtain a travel document and assist the Service in obtaining a travel document;
(3) A requirement that the alien report as directed for a mental or physical examination or examinations as directed by the Service;
(4) A requirement that the alien obtain advance approval of travel beyond previously specified times and distances; and
(5) A requirement that the alien provide DHS with written notice of any change of address in the prescribed manner.
Id. § 241.5(a). Additionally, an order of supervision may grant an alien employment
authorization, “if the [immigration] officer specifically finds that: (1) [t]he alien
cannot be removed in a timely manner; or (2) [t]he removal of the alien is
impracticable or contrary to public interest.” See id. § 241.5(c).3
The Form I-220B, Order of Supervision, notifies its recipient and anyone
presented with the order that the alien has legal permission to be in the United States
pending removal. Specifically, an order of supervision, including Chinchilla’s
allegedly fraudulent one, states: “Because the [U.S. Department of Homeland
3 Although not briefed by either party, we will presume that an alien legally employed pursuant to an order of supervision is subject to federal withholding taxes, as well as any other state and federal income taxes.
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Security] has not effected your deportation or removal during the period prescribed
by law, it is ordered that you be placed under supervision and permitted to be at
large under the following conditions.” (emphasis added). The order of supervision’s
identification page contains the alien’s name, birthdate, country of citizenship,
address, alien number, picture, signature, and fingerprint. It is not hard to imagine
that if detained by law enforcement, an unlawful alien subject to an order of
supervision would produce the Form I-220B as evidence that he is authorized to
remain in the United States despite his unlawful immigration status, and that law
enforcement could use the information contained in the order to confirm its validity
and the alien’s identity. An order of supervision is therefore a document prescribed
by 8 C.F.R. § 241.5 that shows legal permission to stay—albeit conditionally—in
the United States.
Separately, certain federal entitlement programs specify orders of supervision
as evidence of legal permission to remain in the United States. For example, 20
C.F.R. § 416.1618(b) (2019) lists categories of aliens that are considered
“permanently residing in the United States under color of law” and, thus, are eligible
to apply for supplemental security income (“SSI”) benefits. Under the SSI
regulations, an alien is considered “to be permanently residing in the United States
under color of law . . . if [the] alien [is] residing in the United States with the
knowledge and permission of the Immigration and Naturalization Service and that
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agency does not contemplate enforcing [the alien’s] departure.”4 Id. § 416.1618(a)
(emphasis added). Of relevance here, the SSI regulations expressly identify an order
of supervision as proof that an alien is “permanently residing in the United States
under color of law.” See id. § 416.1618(b)(12), (c)(1).
Similarly, federal regulations regarding certain federal healthcare benefits,
including the premium tax credit, recognize an order of supervision that grants
employment authorization as evidence of legal permission to remain in the United
States. See 26 C.F.R. § 1.36B-1(g) (2019); 45 C.F.R. § 155.20 (2019). Under those
regulations, anyone who is “lawfully present” in the United States is eligible to apply
for certain taxpayer subsidized healthcare benefits. See 26 C.F.R. § 1.36B-1(g); 45
C.F.R. § 155.20. Both regulations cross-reference 45 C.F.R. § 152.2 for the
definition of “lawfully present,” which provides that an alien is considered “lawfully
present” when the alien has an order of supervision granting employment
authorization. See 45 C.F.R. § 152.2(4)(iii) (cross-referencing 8 C.F.R.
§274a.12(c)(9), (10), (16), (18), (20), (22), and (24)).
Neither the SSI nor the healthcare benefits regulations discussed above confer
legal immigration status upon an alien. Even so, an alien is eligible to receive
4 Under the regulation, “[t]he Immigration and Naturalization Service does not contemplate enforcing [the alien’s] departure if it is the policy or practice of that agency not to enforce the departure of aliens in the same category or if from all the facts and circumstances in [that alien’s] case it appears that the Immigration and Naturalization Service is otherwise permitting you to reside in the United States indefinitely.” Id. § 416.1618(a) (emphasis added).
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taxpayer funded benefits pending removal because the relevant regulations designate
his order of supervision as evidence that he is “permanently residing in the United
States under color of law”—the SSI regulations—or “lawfully present”—the
healthcare regulations—in the United States for purposes of those federal
entitlement programs. The phrases used in these regulations—“permanently
residing in the United States under color of law” and “lawfully present”—fall within
the ordinary meaning of “authorized stay” used in § 1546(a)’s “other document”
clause.
Accordingly, based on a review of the statutes and regulations discussed
above, an order of supervision falls within the plain and ordinary meaning of
§1546(a)’s “other document” clause. First, the Form I-220B, Order of Supervision,
itself is a document prescribed by the federal immigration statutes and regulations
as showing that an alien has legal permission to stay in the United States. Separate
and apart from the immigration statutes and regulations, an order of supervision is a
document prescribed by certain federal entitlement regulations as evidence of legal
permission to stay in the United States. The alien’s stay in the United States is
necessarily temporary, as an order of supervision does not change the alien’s
unlawful immigration status. And his stay in the United States is necessarily
conditional, as it lasts only so long as he complies with the conditions in the order
and only so long as the order is not revoked (for whatever reason), resulting in the
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alien’s removal pursuant to the final removal order. But while it is in effect, an order
of supervision allows its holder, among other things, to reside and travel within the
United States, possibly obtain legal employment here, and to receive certain federal
benefits, i.e., it provides the alien with legal permission to remain (or, in the language
of Form I-220B itself, “to be at large”) in the United States.
C. Chinchilla’s Proposed Statutory Interpretations Are Not Supported by § 1546(a)’s Language and Structure.
1. “Authorized Stay” as Used in § 1546(a) Is Not Defined by Terms of Art from Immigration Laws Governing Alien Admissibility.
Although Chinchilla agrees that neither § 1546(a) nor other federal criminal
statutes define the terms used in the “other document” provision, he argues that we
should not base our analysis on the plain and ordinary meaning of § 1546(a), but
instead should interpret “authorized stay,” as used in § 1546(a), to mean legal status
as used in the immigration laws. Thus, because an alien subject to an order of
supervision maintains an unlawful immigration status, Chinchilla contends that the
order cannot evidence “authorized stay” in the United States. In support of his
argument, Chinchilla points to section 40.9 of the Citizenship and Immigration
Service’s Adjudicator’s Field Manual (“AFM”), which Chinchilla asserts uses the
terms “authorized stay” and “legal status” interchangeably. Section 40.9 of the
AFM, in turn, applies the concept of “unlawful presence” as set forth in §
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212(a)(9)(B)(ii) of the Immigration and Naturalization Act (“INA”). See 8 U.S.C. §
1182(a)(9)(B)(ii). In relevant part, 8 U.S.C. § 1182(a)(9)(B)(ii) provides:
(B) Aliens unlawfully present .... (ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
Although the term “authorized stay” in 18 U.S.C. § 1546(a) and the term “stay
authorized by the Attorney General” in 8 U.S.C. § 1182(a)(9)(B)(ii) are similar,
Chinchilla’s arguments fail for several reasons.
As an initial point, the use of similar—or even identical—phrases in different
statutes does not mean that the phrases are synonymous. See, e.g., Yates v. United
States, 574 U.S. 528, 537 (2015) (“In law as in life, . . . the same words, placed in
different contexts, sometimes mean different things.”). So, the fact that 8 U.S.C.
§ 1182(a)(9)(B)(ii) uses the expiration of “stay authorized by the Attorney General”
to define “unlawful presence” is not, in and of itself, relevant without some textual
guidance that “authorized stay” as used in 18 U.S.C. § 1546(a) should be read as a
term of art synonymous with legal status. That textual guidance does not exist.
First, as explained in our earlier discussion, the fundamental precept of
statutory interpretation is that the language must be given its plain and ordinary
meaning unless the statutory text or context requires otherwise. Here, Congress did
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not define “authorized stay” for purposes of § 1546(a)’s “other document” clause
nor did Congress cross-reference or otherwise expressly import definitions or terms
of art from the immigration laws into § 1546(a)’s “other document” clause. In
contrast, Congress did expressly cross-reference federal immigration statutes in
other provisions of § 1546. See 18 U.S.C. § 1546(b) (criminalizing use of false
identification documents or attestation “for the purpose of satisfying a requirement
of section 274A(b) of the” INA). We therefore must presume that Congress
deliberatively decided to leave “authorized stay” undefined in § 1546(a), rather than
cross-referencing or importing terms of art from the INA. See, e.g., Kucana v.
Holder, 558 U.S. 233, 249 (2010) (“[W]here 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 in original) (quoting Nken v. Holder, 556 U.S.
418, 430 (2009))); Jama v. ICE, 543 U.S. 335, 341 (2005) (stating that courts “do
not lightly assume that Congress has omitted from its adopted text requirements that
it nonetheless intends to apply, and our reluctance is even greater when Congress
has shown elsewhere in the same statute that it knows how to make such a
requirement manifest”). We must respect Congress’s decision to leave “authorized
stay” to be understood based on its plain and ordinary meaning, rather than as a term
of art requiring reference to the INA.
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Second, the statutory text and structure confirm that “authorized stay” as used
in 18 U.S.C. § 1546(a) does not have the same meaning as “stay authorized by the
Attorney General” as used in 8 U.S.C. § 1182(a)(9)(B)(ii). In 1986, Congress
amended 18 U.S.C. § 1546(a) to expand the statute’s scope after the Supreme Court
narrowly construed the pre-1986 statutory provision. Congress, however, did not
add the “unlawful presence” language to § 1182(a)(9)(B)(ii) until about a decade
later as part of the 1996 Illegal Immigration Reform and Immigrant Responsibility
Act. Moreover, on its face the definition of “unlawful presence” is confined to
§ 1182(a)(9)(B)(ii) and is not generally applicable to other parts of the INA itself.
See 8 U.S.C. § 1182(a)(9)(B)(ii) (“For purposes of this paragraph, an alien is
deemed to be unlawfully present in the United States if the alien is present in the
United States after the expiration of the period of stay authorized by the Attorney
General . . .” (emphasis added)).
Additionally, 8 U.S.C. § 1182(a)(9)(B)(ii)’s use of “unlawful presence” plays
a narrow, albeit important, role in the immigration laws. As the AFM notes,
“unlawful presence” is not synonymous with immigration status. See Adjudicator’s
Field Manual 40.9.2(a)(2). Instead, time accrued for “unlawful presence” pursuant
to 8 U.S.C. § 1182(a)(9)(B)(ii) relates to admissibility and is applied only when an
alien who has left the United States seeks admission before certain time periods have
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passed.5 Id.; see also Estrada v. Becker, 917 F.3d 1298, 1305 (11th Cir. 2019)
(“Under § 1182(a)(9)(B)(i), aliens who are ‘unlawfully present in the United States’
for a period of time, leave the United States, then seek admission to the United States
before certain periods of time have passed are inadmissible.”). Thus, there is nothing
in the express language or the context and structure of 18 U.S.C. § 1546(a) to
indicate that Congress intended to import, on an ex post basis, a technical meaning
from an immigration statute of limited application into a criminal statute broadly
prohibiting the fraudulent use of immigration documents.
2. Section 1546(a)’s “Other Document” Provision Does Not Require an Order of Supervision to Be Expressly Listed or Otherwise Identified as Evidencing Authorized Stay in the United States. Alternatively, Chinchilla urges us to adopt the district court’s reasoning in its
order of dismissal. In its order of dismissal, the district court did not address the
legal question regarding the meaning of “authorized stay” but instead dismissed the
superseding indictment because “the Government has failed to identify any federal
statute or regulation prescribing an Order of Supervision as evidence of authorized
stay in the United States.” Although the district court did not explain its conclusion
in detail, the suggestion is that a federal statute or regulation must expressly list an
5 For example, an alien who has accrued more than 180 days but less than a year of “unlawful presence” must wait three years outside of the United States before seeking admission, while an alien who has accrued more than a year of “unlawful presence” must wait ten years. 8 U.S.C. § 1182(a)(9)(B)(i)–(ii).
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order of supervision as evidence of authorized stay in order for it to fall within §
1546(a)’s “other document” provision. This is incorrect for a number of reasons.
First, the case the district court found persuasive, United States v. Wei Lin,
738 F.3d 1082 (9th Cir. 2013), is inapplicable. In Wei Lin, the Ninth Circuit
concluded that a driver’s license issued by the Northern Mariana Islands did not
qualify as a document prescribed by statute or regulation for entry into or evidence
of authorized stay in the United States. See id. at 1083. Unlike a visa, permit, border
crossing card, alien registration card, or an order of supervision, a driver’s license—
even one issued by a federal commonwealth like the Northern Mariana Islands—
does not purport to demonstrate that the holder is authorized to enter the United
States or that the holder has formal approval to remain within the United States. Wei
Lin therefore is irrelevant to the question of whether an order of supervision satisfies
§ 1546(a)’s “other document” clause.
Second, although not articulated in its order, the district court appeared to
interpret “prescribe” to mean that a federal statute or regulation must expressly list
or otherwise separately identify an order of supervision as a document evidencing
“authorized stay” in the United States in order for it to fall within § 1546(a)’s “other
document” clause. To the extent the district court required an express reference in
a federal statute or regulation to a document using § 1546(a)’s language verbatim,
this narrow reading of “prescribe” is not dictated by the plain and ordinary meaning
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of the statutory language, the structure of § 1546(a) itself, or the federal statutes and
regulations discussed earlier.
In any event, the immigration statutes and regulations governing the issuance
of a Form I-220B, Order of Supervision, confirm that an order of supervision is a
document prescribed by statutes and regulations as proof of formal approval for an
alien to remain conditionally in the United States. A Form I-220B is a document
issued by the government pursuant to 8 U.S.C. § 1231(a)(3) and 8 C.F.R. §§ 241.4,
241.5. On its face, the Form I-220B states that the alien is “permitted to be at large”
in the United States subject to its conditions, and it is often the only document issued
to an unlawful alien demonstrating that he can live and work in the United States—
provided that he complies with the order’s conditions and until such time that the
order is revoked. Moreover, separate from the immigration laws themselves, other
federal regulations expressly designate orders of supervision as proof that an alien
is “permanently residing in the United States under color of law” or “lawfully
present” in order to receive certain taxpayer-funded benefits. We therefore conclude
that the district court erred in its reading of § 1546(a)’s “other document” clause.
IV. CONCLUSION
For the foregoing reasons, we reverse the district court’s order dismissing the
superseding indictment and remand to the district court for further proceedings.
REVERSED and REMANDED.