Eleventh Circuit Court of Appeals - Published Opinions

Thursday, February 11, 2021

Chinchilla: Order of Supervision Falls Under Ambit of 18 U.S.C. § 1546(a)

In United States v. Chinchilla, No. 19-10987 (Feb. 11, 2021) (Wilson, Lagoa, Hull), the Court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. 

Defendant was charged with violating 18 U.S.C. § 1546(a) for allegedly using a fraudulent order of supervision to obtain a driver's license.  Section 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.  An order of supervision authorizes an unlawful immigrant to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal.  Such an order may authorize an immigrant to seek employment in the United States, and various federal regulations identify orders of supervision as evidence of lawful presence in the United States for purposes of receiving Social Security and federal health care benefits.  The State of Florida also accepts from applicants seeking to obtain a Florida driver's license an order of supervision as proof of legal presence in the United States.      

Defendant moved to dismiss the superseding indictment for failing to state an offense, 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).

In reversing the district court, the Court considered the plain and ordinary meaning of the statutory language as it was understood at the time the law was enacted, and concluded that the phrase "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" refers to a  document directed by a statute or regulation as proof that its recipient has formal approval to temporarily remain in the United States.  The Court held orders of supervision to be just such a document, and therefore reversed and remanded.