Knowingly Presenting an Immigration Document with No Reasonable Basis in Law or Fact (18 U.S.C. § 1546(a), Paragraph Four) Categorically Constitutes a CIMT

1. Introduction

In Nemis v. Blanche (2d Cir. Sept. 17, 2026), the Second Circuit addressed whether a conviction for conspiracy to violate paragraph four of 18 U.S.C. § 1546(a) is categorically a crime involving moral turpitude (CIMT), rendering a lawful permanent resident removable/inadmissible under the Immigration and Nationality Act (INA).

The petitioner, Sanny Montefar Nemis, a Philippine national and U.S. lawful permanent resident, pleaded guilty in federal court to conspiracy under 18 U.S.C. §§ 371 and 1546(a) based on conduct involving fraudulent H-1B-related submissions. After travel abroad, DHS treated him as seeking admission and charged him as inadmissible/removable for having been convicted of a CIMT or conspiracy to commit a CIMT under 8 U.S.C. §§ 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i).

The case returned to the Second Circuit after an earlier remand, Nemis v. Garland, where the court instructed the agency to apply the categorical approach correctly—focusing on statutory elements and “minimum conduct,” not the petitioner’s real-world conduct.

The central issue in this second petition was narrow but consequential: even if materially false statements to immigration authorities are plainly CIMTs, does the statute’s additional clause— criminalizing knowingly presenting a required immigration document that lacks any reasonable basis in law or fact— also categorically define a CIMT?

2. Summary of the Opinion

The Second Circuit denied Nemis’s petition for review and held that all of paragraph four of 18 U.S.C. § 1546(a) categorically describes a CIMT:

  • The “false-statement” portions (knowingly making/presenting materially false statements in required immigration documents) are CIMTs (a point the parties agreed on).
  • The “reasonable-basis” subclause (knowingly presenting a required immigration document that “fails to contain any reasonable basis in law or fact”) also categorically describes a CIMT because it necessarily involves knowing deceit that impairs or obstructs an important government function—immigration enforcement and administration.

In doing so, the court stated that—consistent with Loper Bright Enters. v. Raimondo—it was adopting the BIA’s CIMT formulation (reprehensible conduct + culpable mental state) as the court’s own construction on independent review, rather than as an exercise in deference.

3. Analysis

3.1. Precedents Cited

A. The categorical and modified categorical frameworks

  • Ottey v. Barr: Provided the court’s baseline statement of the categorical approach—focus on “intrinsic nature” of the offense, and assess the “minimum criminal conduct” required by the elements. The Nemis panel used Ottey as the methodological anchor for element-centric analysis.
  • Giron-Molina v. Garland: Supplied the “by definition, and in all instances” formulation—an offense is a CIMT only if every conviction under the statute necessarily satisfies the CIMT elements.
  • Stankiewicz v. Garland: Cited for the sequencing principle: divisibility questions matter when there is “no categorical match.” Here, because the court found a categorical match regardless, it explicitly declined to decide whether paragraph four is divisible between the false-statement and reasonable-basis theories.
  • Nemis v. Garland: The prior remand decision framed the dispute: it recognized divisibility of 18 U.S.C. § 371 and of 18 U.S.C. § 1546(a), concluded the conviction was for paragraph four, and rejected the BIA’s prior focus on Nemis’s actual conduct rather than minimum conduct. The 2026 opinion implements that instruction by performing a minimum-conduct analysis of the reasonable-basis subclause.

B. Defining “CIMT” and crimes against the government

  • Cupete v. Garland: Did two major jobs in the opinion. First, it supported the conclusion that knowingly making materially false statements to the government is a CIMT (Cupete involved 18 U.S.C. § 1001(a)). Second, it supplied the key “crimes against the government” principle: crimes that impair or obstruct an important government function “by deceit, graft, trickery, or dishonest means” involve moral turpitude. The Nemis panel treated this as the conceptual bridge from “false statement” fraud to “baseless filing” deceit.
  • Mota v. Barr: Quoted for the BIA’s two-element CIMT test: (1) reprehensible conduct, and (2) culpable mental state. The panel used Mota to emphasize that “knowingly or intentionally” committed crimes are generally CIMTs on the categorical approach when paired with reprehensible conduct.
  • Jang v. Garland: Used to contrast statutes lacking the “evil intent”/deception/impairment component. In Jang, the court held New York second-degree money laundering is not categorically a CIMT because it did not require intent to conceal, impair government function, or deceive the government. Nemis is the inverse: the court finds the statute necessarily entails knowing deceit that impairs government function.
  • Gill v. INS: Cited to situate mens rea gradations: recklessness may sometimes qualify in aggravated circumstances. Nemis did not turn on recklessness; it reinforced that the statute’s explicit “knowingly” requirement supports CIMT treatment.

C. Independent judicial construction after Loper Bright

  • Loper Bright Enters. v. Raimondo: The opinion’s administrative-law inflection point. The panel noted that while it had previously “deferred” to the BIA’s CIMT construction, it now “clarif[ies]” that, on its own review of the statutory text, it “adopt[s]” that construction. Practically, this preserves continuity of the CIMT standard while reframing its authority as judicially adopted rather than agency-driven.

D. Textual and interpretive tools used to define “minimum conduct”

  • Slack Techs., LLC v. Pirani: Cited to interpret “such” as referential, reinforcing that the “knowingly presents” language ties back to the earlier description of required documents and material false statements.
  • Collins v. United States: Used for the ordinary/legal meaning of “present” and “presentment,” grounding the actus reus as bringing a document before a tribunal/authority.
  • United States v. Aborisade: The Fourth Circuit’s reading of “required” as “necessary qualification” supported the conclusion that paragraph four targets submissions to USCIS and similar immigration authorities as part of required processes.
  • Ali v. Fed. Bureau of Prisons: Used to give “any” its expansive meaning, supporting the breadth of “any reasonable basis in law or fact.”
  • Conn. Fair Hous. Ctr. v. CoreLogic Rental Prop. Sols., LLC: Cited for the anti-surplusage canon; the court accepted the parties’ view that the reasonable-basis subclause should not be read to duplicate the earlier false-statement clauses.
  • Rehaif v. United States: Used for the grammatical presumption that “knowingly” applies to all following elements—critical to the holding that the statute requires knowledge of the lack of reasonable basis (not merely knowledge of submission).
  • Kawashima v. Holder: Used for a general definition of “deceit,” helping explain why baseless filings can be deceitful even absent a literal false statement.

E. Applications and analogies rejected

  • Matters of Jaso & Ayala: Used to rebut Nemis’s first hypothetical (meritless asylum filing to access cancellation of removal proceedings). The court treated this as “abuse of the asylum process” and consistent with moral turpitude under the BIA/Cupete framework.
  • Mendez v. Barr: Distinguished to reject the claim that deceit is too ubiquitous to support CIMT classification. The panel read Mendez as turning on the absence of intent and the risk that misprision reaches relatively innocent fear-driven or protective conduct. In contrast, § 1546(a) paragraph four requires knowing submission of a baseless required document to immigration authorities.
  • Lawrence v. Richman Grp. of CT LLC and Morley v. Ciba-Geigy Corp.: Used to reject the Rule 11 analogy. Rule 11 is assessed under an objective reasonableness standard; § 1546(a)’s clause requires actual knowledge, which the court viewed as more strongly indicative of deceit and turpitude.
  • Vasquez v. Garland: Cited for the principle that lenity applies only after ordinary statutory construction leaves ambiguity. The panel found no such ambiguity and therefore declined to invoke lenity (and further noted, without deciding, questions about lenity’s survival post-Loper Bright).

3.2. Legal Reasoning

A. The holding’s doctrinal core: deceit + government-function impairment

The court’s essential move was to treat the reasonable-basis subclause as a form of deceitful obstruction, even if the submission contains no materially false factual statement. It reasoned that knowingly presenting a legally required immigration document that one knows has no reasonable basis in law or fact necessarily carries an implied misrepresentation: the filer implicitly represents the document as a legitimate, good-faith attempt to satisfy a legal requirement while knowing it is not.

That implied misrepresentation is not merely “sharp practice.” Because the submission occurs in a regulated immigration adjudicatory system, it predictably:

  • induces reliance or at least demands agency attention,
  • consumes governmental time and resources,
  • and can distort or delay the administration and enforcement of immigration law.

Under the Cupete v. Garland framework, deceit that impairs an important government function is paradigmatically turpitudinous. The court thus fit the reasonable-basis subclause within the BIA’s “crimes against the government” CIMT category and then reaffirmed the two-part CIMT test (reprehensible conduct + culpable mental state) from Mota v. Barr.

B. Minimum conduct analysis: defining the floor

The opinion carefully constructed the “minimum conduct” scenario to satisfy categorical scrutiny:

  1. Presentation of a document to immigration authorities (the “presentment” actus reus).
  2. The document is “required” by immigration law/regulation (i.e., submitted to satisfy a legal requirement).
  3. No materially false statement is necessary (to avoid collapsing into the earlier false-statement clauses).
  4. The document nonetheless “fails to contain any reasonable basis in law or fact” (no reasonable legal/factual foundation).
  5. The defendant acts “knowingly” as to both the presentment and the lack of reasonable basis (via Rehaif v. United States).

Importantly, the panel’s insistence that “knowingly” reaches the “no reasonable basis” element addresses a common categorical-approach pressure point: if the statute could be violated by negligence or objective unreasonableness, the CIMT conclusion would be harder to sustain. By reading the statute as requiring actual knowledge, the court aligned the mens rea with moral turpitude doctrine.

C. Rejection of hypotheticals and analogies

Nemis attempted to show overbreadth by positing filings meant to “buy time” (frivolous appeals) or to trigger other processes (meritless asylum applications). The court treated these as confirmatory rather than limiting examples: in its view, both scenarios are intentional attempts to manipulate adjudication through knowingly baseless legal filings, i.e., deceitful abuse that obstructs government function.

The Rule 11 analogy failed because the statute’s knowledge requirement makes it closer to intentional deception than to sanctionable but sometimes good-faith legal error.

3.3. Impact

A. Immigration consequences for § 1546(a) paragraph four convictions

The most direct consequence is a clear rule in the Second Circuit: paragraph four of 18 U.S.C. § 1546(a), including the “no reasonable basis” clause, is categorically a CIMT. Because the INA expressly includes “attempt or conspiracy,” a conviction for conspiracy to violate paragraph four is likewise a CIMT predicate.

This matters operationally in at least three recurring situations:

  • Returning LPRs: As in Nemis’s case, travel can trigger INA rules treating certain LPRs as “seeking admission” if they have committed an offense identified in 8 U.S.C. § 1182(a)(2), exposing them to inadmissibility-based removal grounds.
  • Plea bargaining: Defendants and counsel now have stronger notice that paragraph four pleas—even those framed to avoid literal false statements— can still trigger CIMT consequences if they satisfy the knowledge + no-reasonable-basis elements.
  • Categorical litigation strategy: The decision reduces room for “overbreadth” arguments focused on the reasonable-basis clause within paragraph four, at least in the Second Circuit.

B. Post-Loper Bright signal: stability of CIMT doctrine, shifted rationale

The panel’s explicit invocation of Loper Bright Enters. v. Raimondo is significant beyond immigration fraud. Rather than announcing a new CIMT definition, the court preserved the familiar BIA formulation but grounded it in the court’s own statutory judgment. Future CIMT disputes may therefore focus less on “deference” arguments and more on whether the court’s independently adopted standard is satisfied.

C. Broader implications for “abuse of process” theories

By characterizing knowingly baseless required filings as deceit that obstructs government function, Nemis may influence how courts and the agency evaluate other statutes and schemes that involve: (i) required submissions, (ii) knowledge of lack of legal/factual foundation, and (iii) predictable impairment of administrative adjudication. The decision thus strengthens an “abuse-of-adjudication” pathway to CIMT classification where intentional misuse of official processes is central.

4. Complex Concepts Simplified

  • CIMT (Crime Involving Moral Turpitude): A category of offenses that trigger serious immigration consequences. In this opinion, the court adopts the test that a CIMT requires reprehensible conduct plus a culpable mental state (typically knowing or intentional wrongdoing).
  • Categorical approach: A method that looks at the statutory elements of the crime, not what the person actually did. If the statute covers any non-turpitudinous conduct, it is not categorically a CIMT.
  • Modified categorical approach / divisibility: If a statute lists alternative elements defining multiple crimes, courts may consult limited record documents to determine which alternative formed the conviction. The Second Circuit previously used this in Nemis v. Garland to identify paragraph four as the offense of conviction.
  • “Fails to contain any reasonable basis in law or fact”: As used here, it means the submission has no reasonable legal or factual foundation. Crucially, the court reads the statute to require that the defendant knew there was no reasonable basis.
  • Deceit without an explicit false statement: The opinion treats knowingly submitting a baseless required document as deceitful because it implicitly represents legitimacy/good faith while the filer knows the submission is unfounded.
  • Rule of lenity: A doctrine sometimes invoked to resolve ambiguous statutes in favor of the noncitizen. The court said it does not apply because, after ordinary tools of interpretation, the statute’s application is not ambiguous.

5. Conclusion

Nemis v. Blanche establishes (or, more precisely, cements as a categorical rule in the Second Circuit) that 18 U.S.C. § 1546(a) paragraph four—including its reasonable-basis subclause—categorically defines a CIMT. The court’s reasoning rests on a two-part foundation: the statute requires knowing conduct, and the minimum conduct necessarily involves deceit that impairs or obstructs the government’s immigration functions.

The decision also has broader significance in the post-Loper Bright Enters. v. Raimondo landscape: the Second Circuit preserves the BIA’s familiar CIMT framework while explicitly grounding it in the court’s independent construction, signaling continuity in outcomes but a shift in justificatory method.