Drakes v. Zimski

• Decision Date: 30 October 2000
• Docket Number: No. 00-3232,00-3232
• Citation: 240 F.3d 246
• Parties: (3rd Cir. 2001) TREVOR DRAKES, Petitioner v. CHARLES W. ZIMSKI, Acting Director of Immigration and Naturalization Service; JANET RENO, Attorney General, Respondents Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 246

240 F.3d 246 (3rd Cir. 2001)

TREVOR DRAKES, Petitioner v. CHARLES W. ZIMSKI, Acting Director of Immigration and Naturalization Service; JANET RENO, Attorney General, Respondents

No. 00-3232

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Under Third Circuit LAR 34.1(a)

October 30, 2000.

Filed, February 20, 2001

Petition for Review of Deportation Order of the Board of Immigration Appeals.

Alan H. Smith, Esquire, York, Pennsylvania, Attorney for Petitioner.

Kate L. Mershimer, Esquire, Office of the United States Attorney, Harrisburg, Pennsylvania, Attorney for Respondents.

Before: SCIRICA, NYGAARD, and BARRY, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge:

Trevor Drakes, a native of Guyana, has lived in the United States since 1981 as a lawful, permanent resident. On August 12, 1998, Drakes was stopped by the Delaware State Police for a traffic violation. While the facts of what he did are less than clear, at minimum he provided a false name to the police and later pled guilty to two counts of second-degree forgery under Delaware state law. The Immigration and Naturalization Service ("INS") determined that second-degree forgery was a deportable aggravated felony under 8 U.S.C. 1101(a)(43)(R) and removal proceedings were initiated. Although the Immigration Judge found that Drakes' crime did not satisfy the statutory definition of "aggravated felony," the Board of Immigration Appeals ("BIA") disagreed and ordered Drakes deported.

Drakes filed a Petition for Review and a Petition to Stay Deportation in the United States District Court. Because of the 8 U.S.C. 1252(b)(2) jurisdictional bar,¹ the District Court transferred the case to this Court. We conclude that because Drakes is an alien convicted of an aggravated felony, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") divests this Court of jurisdiction to consider his petition on the merits. 8 U.S.C. 1252(a)(2)(C). Accordingly, the petition will be dismissed.

It is by now well understood that under 8 U.S.C. 1252(a)(2)(C), this Court lacks jurisdiction to consider a final order of removal against an alien convicted of one or more specified criminal offenses.² Liang v. INS, 206 F.3d 308 (3d Cir. 2000) is our latest pronouncement to that effect. This limitation on our jurisdiction comes into play, however, only when two facts (which have, somewhat inappropriately, come to be known as "jurisdictional facts") exist: (1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses.

The initial question before us, then -- one we have not before explicitly considered -- is whether we have jurisdiction to determine whether these jurisdictional facts are present. Drakes argues, and the government concedes, that we have jurisdiction to determine our jurisdiction under 1252(a)(2)(C). We agree, thus joining all of our sister circuits which have considered the issue. See, e.g., Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir. 2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir. 2000); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999); Santos v. Reno, 228 F.3d 591, 597 n.11 (5th Cir. 2000); Diakite v. INS, 179 F.3d 553, 554 (7th Cir. 1999) (per curiam); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000); see also Lettman v. Reno, 168 F.3d 463, 465 (11th Cir. 1999) (holding that the Court of Appeals has jurisdiction to decide its jurisdiction under the transitional rules of the IIRIRA), rev'd on other grounds, 207 F.3d 1368 (11th Cir. 2000).

Whether the requisite jurisdictional facts exist in a particular case is ordinarily easily determined. As the Fourth Circuit stated:

[Where . . . a criminal statute on its face fits the INA's deportability classification all convictions under that statute necessarily render an alien deportable. To go beyond the offense as charged and scrutinize the underlying facts would change our inquiry from a jurisdictional one into a full consideration of the merits. Such an approach would fly in the face of the jurisdiction limiting language of IIRIRA.

Hall v. INS, 167 F.3d 852, 856 (4th Cir. 1999). See also Lewis, 194 F.3d at 543.

The rub here is this, and it is two-fold: Drakes does not take issue in any respect with his Delaware conviction; rather, he contends that the forgery of which he was convicted under Delaware law is not the crime of forgery Congress had in mind and intended to encompass when it used the term in 8 U.S.C. 1101(a)(43)(R). He also contends that his sentence of one year on each of the two counts to which he pled guilty does not meet the statute's requisite threshold of "at least one year." If he is right, review is not precluded and the removal order will be vacated for failing to allege a deportable offense. If he is wrong, as we have already suggested, 1252(a)(2)(C) prohibits further inquiry.

I.

The Immigration and Naturalization Act ("INK) provides that an alien convicted of an "aggravated felony" at any time after admission is deportable. INA 241(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). An "aggravated felony" includes "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one year." 8 U.S.C. 1101(a)(43)(R). Drakes pled guilty to forgery in the second degree under Delaware law, which provides, as relevant here, that a person is guilty of forgery when he or she alters, makes, possesses, or transfers certain written instruments while "intending to defraud, deceive or injure another person." 11 Del. C. 861. Drakes contends that the Delaware statute goes beyond forgery's traditional "intent to defraud" element by also including the intents to "injure" and "deceive." "Deceive" and "defraud," the terms on which Drakes focuses, are not, of course, synonymous. See United States v. Yermian, 468 U.S. 63, 73, n.12, 82 L. Ed. 2d 53, 104 S. Ct. 2936 (1984) ("Deceive is to cause to believe the false or to mislead. Defraud is to deprive of some right, interest or property by deceit."). If Congress intended "forgery" to require an intent to defraud and Drakes meant only to deceive, the Delaware conviction conceivably would not qualify as an aggravated felony.

The government gives this argument the back of its hand, responding with little more than the simple tautology that forgery means forgery, just as "a rose is a rose." Appellee Br. at 18. In the plain language of 1101(a)(43)(R), the government contends, Congress added forgery to the list of aggravated felonies, and Drakes was convicted of what Delaware calls "forgery." Pronouncing a flower to be a rose, however, does not necessarily make it one. The language of a federal statute must be construed to have the meaning intended by Congress, not the Delaware legislature. See Taylor v. United States, 495 U.S. 575, 590, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990) ("It seems to us to be implausible that Congress intended the meaning of 'burglary' . . . to depend on the definition adopted by the State of conviction."); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-120, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, "because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control."); United States v. Turley, 352 U.S. 407, 411, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957) ("In the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law."). To determine whether the second-degree forgery to which Drakes pled guilty comes within the "forgery" Congress intended, therefore, we must examine Delaware state law to see if it encompasses acts beyond those subject to prosecution under the federal definition. See Taylor, 495 U.S. at 600 (concluding that this "formal categorical approach" is appropriate in such circumstances); see also In re Alcantar, 20 I. & N. Dec. 801, 809 (B.I.A. 1994) (applying the same approach).

The meaning of "forgery" in federal law is ambiguous. Congress has never specifically defined forgery, although it has used the term in numerous statutes outlawing various acts. In some of these statutes, Congress did not specify the requisite culpable intent. See, e.g., 18 U.S.C. 485 (prohibiting forgery of coins or bars in denominations greater than five cents). In at least twenty other statutes, however, Congress specified that an intent to defraud is required. In four of those statutes, Congress used the term "forgery" together with the phrase "with intent to defraud," seemingly indicating that the two need not be joined. See, e.g., 18 U.S.C. 471 (prohibiting forgery of federal obligations "with intent to defraud"); 18 U.S.C. 478 (prohibiting forgery of foreign obligations "with intent to defraud"); 18 U.S.C. 482 (prohibiting forgery of foreign bank notes "with intent to defraud"); 18 U.S.C. 500 (prohibiting forgery of postal service money orders "with intent to defraud"). Thus, in Congress' view, it may well be possible to commit "forgery" without "fraud," or at least fraud in the ordinary sense of misrepresentation for material gain. See United States v. Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had Congress intended to make the intent to defraud an element of 18 U.S.C. 505, it would have done so expressly).

Where federal criminal statutes use words of established meaning without further elaboration, courts typically give those terms their common law definition. Moskal v. United States, 498 U.S. 103, 114, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990); Gilbert v. United States, 370 U.S. 650, 655, 8 L. Ed. 2d 750, 82 S. Ct. 1399 (1962) ("in the absence of anything to the contrary it is fair to assume that Congress ...