Alvarez v. Lynch

• Citation: 828 F.3d 288
• Decision Date: 07 July 2016
• Docket Number: No. 15-1599,15-1599
• Parties: Gabriel Santos Alvarez, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

828 F.3d 288

Gabriel Santos Alvarez, Petitioner

v.Loretta E. Lynch, Attorney General, Respondent.

No. 15-1599

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2016

Decided: July 7, 2016

ARGUED: Brian Ross Murray, Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, Virginia, for Petitioner. Christina Peterson Greer, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Meadow W. Platt, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before DIAZ, FLOYD, and THACKER, Circuit Judges.

Petition for review denied by published opinion. Judge Thacker

wrote the opinion, in which Judge Diaz and Judge Floyd joined.

THACKER

, Circuit Judge:

Gabriel Santos Alvarez (“Petitioner”) seeks review of a Board of Immigration Appeals (“BIA”) decision finding him ineligible for cancellation of removal. The BIA reached this conclusion after determining that Petitioner's Virginia conviction for forging a public record pursuant to Virginia Code Ann. § 18.2-168

(“Virginia forgery”) was an aggravated felony under the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1101(a)(43)(R) (defining aggravated felony as including “an offense relating to ... forgery”). Petitioner challenges this determination, arguing that Virginia forgery does not “relat[e] to” the federal generic definition of forgery.

As explained below, we conclude that Virginia forgery is an aggravated felony under the INA because it is a categorical match with the federal generic definition of forgery; therefore, the state and federal forgery crimes necessarily “relat[e] to” one another. As a result, we deny the petition for review, and we deny as moot the Government's request to remand this case to the BIA.

I.

Petitioner is a citizen of Bolivia and has been a lawful permanent resident in the United States since October 6, 2002. On January 3, 2012, he was convicted of embezzlement under Virginia law and sentenced to three years in prison, all suspended. Based on separate and distinct conduct, on January 31, 2014, Petitioner was convicted of forging a public record pursuant to Virginia Code Ann. § 18.2-168

and assigned another three-year sentence, with all but seven months suspended.

On August 4, 2014, the Department of Homeland Security (“DHS”) issued Petitioner a Notice to Appear, charging that Petitioner was eligible for removal from the United States because he had been convicted of two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii)

.¹ At Petitioner's September 10, 2014 removal hearing, DHS filed an additional charge of removability under 8 U.S.C. § 1227(a)(2)(A)(iii), claiming Petitioner was an alien convicted of an aggravated felony—specifically, an offense “relating to” forgery. Id. § 1101(a)(43)(R).

Petitioner filed an application for cancellation of removal, and DHS filed a motion to pretermit Petitioner's application, contending the aggravated felony conviction rendered Petitioner ineligible for this relief.² On October 23, 2014, the immigration judge (“IJ”) issued a written decision sustaining both charges of removability and granting DHS's motion to pretermit Petitioner's application. The IJ concluded that although Virginia forgery is “slightly broader” than generic federal forgery, it is nonetheless an “offense [ ] ‘relating to’ ” forgery. A.R. 93-94 (quoting 8 U.S.C. § 1101(a)(43)(R)

).³ Petitioner appealed to the BIA, and a single BIA judge agreed with the IJ and dismissed the appeal. Petitioner filed a timely petition for review with this court on June 4, 2015.

On October 6, 2015, the Government filed a motion to remand based on the Supreme Court's June 1, 2015 decision in Mellouli v. Lynch , ––– U.S. ––––, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015)

(construing the phrase “relating to” in another INA provision). We denied the motion. See Order Den. Mot. to Remand, Santos Alvarez v. Lynch , No. 15-1599 (4th Cir. Oct. 27, 2015), ECF No. 22. On December 18, 2015, Petitioner filed an unopposed motion for stay of removal, which this court granted. See Order Granting Stay of Removal, Santos Alvarez v. Lynch , No. 15-1599 (4th Cir. Dec. 29, 2015), ECF No. 32.

II.

We possess jurisdiction over the legal question of whether a crime qualifies as an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(D)

; Espinal–Andrades v. Holder , 777 F.3d 163, 166 (4th Cir. 2015). “Although we generally defer to the BIA's interpretations of the INA, where, as here, the BIA construes statutes and state law over which it has no particular expertise, its interpretations are not entitled to deference.” Omargharib v. Holder , 775 F.3d 192, 196 (4th Cir. 2014) (alterations and internal quotation marks omitted). We thus review the pure legal issue in this case de novo. See Espinal–Andrades , 777 F.3d at 166 ; see also Vizcarra–Ayala v. Mukasey , 514 F.3d 870, 873 (9th Cir. 2008) (reviewing de novo the issue of whether California forgery is an aggravated felony).

III.

In this case, we are asked to decide whether a Virginia conviction for forgery of a public record is an aggravated felony under the INA, which is defined as “an offense relating to ... forgery ... for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(R)

. If it is not, then Petitioner may be eligible for cancellation of removal.⁴ Petitioner argues that Virginia forgery is so broad that it does not even “relat[e] to” federal forgery; therefore, it is not an aggravated felony.

A.

In determining whether Virginia's statute is an aggravated felony, we employ the categorical approach. See Mellouli v. Lynch , ––– U.S. ––––, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015)

; Omargharib v. Holder , 775 F.3d 192, 196 (4th Cir. 2014). Under the categorical approach, “we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” United States v. Lopez–Collazo , 824 F.3d 453, 463, 2016 WL 3080431, at *7 (4th Cir. June 1, 2016)

(quoting Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) ). The federal definition “must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” Hernandez–Zavala v. Lynch , 806 F.3d 259, 264 (4th Cir. 2015).

A generic federal offense and a state offense “categorical[ly] match” “only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Amos v. Lynch , 790 F.3d 512, 518 (4th Cir. 2015)

(internal quotation marks omitted). This issue is not settled simply because Virginia categorizes the statute at issue as “forgery.” See Taylor v. United States , 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (in applying categorical approach, cautioning against “depend[ing] on the definition adopted by the State of conviction”).

We note that subsection (R) of § 1101(a)(43)

is one of the many aggravated felonies the INA defines “expansive[ly]” as merely “relating to” a generic federal crime, in contrast to others defined as “match[ing] ... the comparable federal crime.” Denis v. Attorney Gen. of U.S. , 633 F.3d 201, 207 (3d Cir. 2011). Normally, then, under the more expansive definition, the fact that the offenses “do not precisely ‘match’ each other is not determinative.” Id. In this case, however, we conclude that the offenses match; therefore, the two statutes necessarily relate to each other.

1.Generic Federal Forgery

We first identify the federal generic meaning of forgery, as it is used in the INA.

The INA does not define “forgery,” nor has the BIA. This court's decision in United States v. Jones

, however, is instructive. See 553 F.2d 351 (4th Cir. 1977). In Jones , Michael Everston, a supervisor at Inglis, Ltd., directed an accounts payable clerk to alter vendor numbers in a computer system so that checks supposed to be paid to a vendor were instead issued to Everston's cohort, defendant Amy Jones, who then deposited the checks in her own account. See id. at 354. This court considered whether, under 18 U.S.C. § 2314, “the alteration of accounts payable documents fed into a computer which resulted in the issuance of checks payable to an improper payee” constituted forgery. Id.⁵

In its analysis, this court cited with approval the Sixth Circuit's common law definition of forgery: “the false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability,” Jones , 553 F.2d at 355

(quoting Carr v. United States , 278 F.2d 702, 703 (6th Cir. 1960) ), which matches “other circuits' analyses of the generic offense,” Vizcarra–Ayala v. Mukasey , 514 F.3d 870, 874 (9th Cir. 2008). See, e.g. , Vizcarra–Ayala , 514 F.3d at 874 ; United States v. McGovern , 661 F.2d 27, 29 (3d Cir. 1981) (“Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy.”); see also Model Penal Code § 224.1(1)(b)

(ALI 2015) (“A person is guilty of forgery if, with purpose to defraud ... the actor ... makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act.”).

Because the parties here dispute the breadth of the “false making” element, we focus on that aspect of the common law definition. In Jones

, we recognized that, at common law, a “false making” did not include “the creation of a writing which was genuine in execution but false as to the statements of fact contained in such writing.” Jones , 553 F.2d at 355 (footnote omitted). In other words, with regard to a “false...