Williams v. Attorney Gen. U.S.

• Decision Date: 19 January 2018
• Docket Number: Nos. 16-3816 & 17-1705,s. 16-3816 & 17-1705
• Parties: Ramon Andrew WILLIAMS a/k/a Andrew Denton Williamson a/k/a Ramon Williams, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

880 F.3d 100

Ramon Andrew WILLIAMS a/k/a Andrew Denton Williamson a/k/a Ramon Williams, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

Nos. 16-3816 & 17-1705

United States Court of Appeals, Third Circuit.

Argued November 8, 2017

Opinion Filed: January 19, 2018

Thomas H. Lee, II, Argia J. DiMarco, Ryan M. Moore, Christopher J. Mauro, [ARGUED], Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Seymour James, Jr., Adriene Holder, Maria E. Navarro, Hasan Shafiqullah, Ward Oliver, Sarah Gillman, Whitney W. Elliott, Legal Aid Society, Immigration Law Unit, 199 Water Street, 3rd Floor, New York, NY 10038, Counsel for Petitioner.

Chad A. Readler, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Shahrad Baghai, Christina Greer, [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.

Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and BRANN, District Judge^*

OPINION

SMITH, Chief Judge.

In this consolidated proceeding, Ramon Williams asks us to consider whether a prior conviction under Georgia's forgery statute, Ga. Code Ann. § 16-9-1(a) (2006), constitutes an aggravated felony conviction for purposes of the Immigration and Naturalization Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(iii). Because we conclude that the Georgia conviction is an offense "relating to ... forgery," 8 U.S.C. § 1101(a)(43)(R), Williams is properly subject to removal as an aggravated felon, and we will therefore deny the petitions for review.

I.

Williams, a citizen of Guyana and a lawful permanent resident of the United States, immigrated to this country in 1970, when he was thirteen months old. He has no family in Guyana; his parents, grandparents, siblings, and children are all United States citizens. In 2006, he pleaded guilty in Georgia state court to five counts of first degree forgery pursuant to section 16-9-1(a) of the Georgia Code. He initially received a sentence of two years in prison, which later was reduced to one year.

In 2013, Williams received a notice to appear charging him as removable as a result of having been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Appearing before an Immigration Judge ("IJ") in New Jersey, he contested removability.¹ The IJ determined that the Georgia forgery conviction rendered Williams deportable as an aggravated felon and otherwise denied relief. Williams appealed to the Board of Immigration Appeals ("BIA"). Before the BIA, he argued, inter alia , that the Georgia forgery statute is broader than generic forgery because it criminalizes the use of a fictitious name when signing a document and because the statute does not require a showing of prejudice. The BIA rejected these arguments, upheld the IJ's decision, and dismissed the appeal.

Williams timely filed a petition for review, and also sought reconsideration before the BIA in light of the Supreme Court's decision in Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In his motion for reconsideration, Williams argued that Georgia's forgery statute is indivisible under Mathis and is overbroad because it criminalizes some conduct that does not relate to forgery, namely, false agency endorsements. The BIA denied the reconsideration motion, and Williams timely filed a second petition for review.

The petitions have been consolidated. We have jurisdiction over them pursuant to 8 U.S.C. § 1252(a).

II.

The issue of whether Williams's conviction under the Georgia forgery statute qualifies as an aggravated felony is a question of law over which we have jurisdiction. Id. § 1252(a)(2)(D). We conduct a de novo review of the BIA's determination. Denis v. Atty. Gen. , 633 F.3d 201, 209 (3d Cir. 2011) ; Bobb v. Atty. Gen. , 458 F.3d 213, 217 (3d Cir. 2006).

III.

The INA provides for the deportation of an alien "who is convicted of an aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA's definition of an "aggravated felony" encompasses an extensive list of various types of offenses, see id . § 1101(a)(43)(A)–(U), but for current purposes, only one definition is pertinent: an "aggravated felony" is "an offense relating to ... forgery ... for which the term of imprisonment is at least one year." Id . § 1101(a)(43)(R). In his petitions for review, Williams calls upon us to consider whether the BIA was correct when it determined that his 2006 conviction under Georgia's forgery statute, for which he was imprisoned for a year, is an "offense relating to forgery."

A.

At the time of Williams's conviction, Georgia's forgery statute provided:

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

Ga. Code Ann. § 16-9-1(a) (2006). The Georgia legislature's decision to denote this offense as "forgery" does not dictate whether it comes within the meaning of forgery as Congress intended it in the INA. Drakes v. Zimski , 240 F.3d 246, 248 (3d Cir. 2001) ("The language of a federal statute must be construed to have the meaning intended by Congress, not the [state] legislature."). To make that assessment, we employ what is known as the "categorical approach."² See Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

Under the categorical approach, we look to the substance of the statute of conviction to determine whether it categorically fits within the "generic" federal definition of the corresponding aggravated felony, without considering the facts of the particular case. Id. ; see also Mathis , 136 S.Ct. at 2249 ("The comparison of elements that the categorical approach requires is straightforward .... The court ... lines up that crime's elements alongside those of the generic offense and sees if they match."). We thus compare the state and federal offenses "in the abstract," consulting only their respective elements to determine whether the state conviction "necessarily involved facts equating to the generic federal offense." Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678 (internal quotation marks and alterations omitted) (quoting Shepard v. United States , 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ).

Before we may conduct this comparison, we must consider what constitutes the "generic federal offense" of forgery. See id. As we observed in Drakes v. Zimski , Congress has not articulated a specific definition for the term. 240 F.3d at 249. "Where federal criminal statutes use words of established meaning without further elaboration, courts typically give those terms their common law definition." Id. As we have long held, the traditional common law definition of 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." United States v. McGovern , 661 F.2d 27, 29 (3d Cir. 1981). Moreover, because the INA applies not only to forgery, but also extends to offenses "relating to" forgery, we have concluded that Congress intended to define forgery "in its broadest sense." Drakes , 240 F.3d at 249.

Here, however, the definition of the term "forgery" is not enough, on its own, to answer the question of whether the crime defined in section 16-9-1 of the Georgia Code is "an offense relating to forgery" within the meaning of the INA. Accordingly, in comparing the generic federal offense to the Georgia statute, we employ a "looser categorical approach." Flores v. Atty. Gen. , 856 F.3d 280, 286 (3d Cir. 2017) (applying this approach in analyzing whether an alien had been convicted of offenses "relating to obstruction of justice"). Under this looser approach, we do not require a precise match between the elements of the generic federal crime and those of the Georgia offense. Id. at 291. Instead, we "survey the[ir] interrelationship" and consider whether there is "a logical or causal connection" between them. Id. (quoting Denis , 633 F.3d at 212 ). We may conclude that the crimes are logically connected if they both "target the same, core criminal conduct such that they are ‘directly analogous.’ " Id . And, we may conclude that the crimes are causally connected where there is a "link between the alien's offense and a listed federal crime: without the listed federal offense, the alien's offense could not have occurred." Id. Because the parties agree that there is no "causal connection" between the federal and state crimes under discussion here, our focus is the "logical connection" between them.

B.

Williams's primary claim is that the Georgia forgery statute is broader than the federal common law definition of forgery because it punishes the possession of certain "genuine" documents, namely, documents that "purport[ ] to have been made ... by authority of one who did not give such authority." Ga. Code Ann. § 16-9-1(b). Williams refers to this aspect of the Georgia statute as "false agency endorsement," which, he argues, is conduct that does not fall within the traditional common law definition of forgery.

As a threshold matter, the Government argues that, although false agency endorsement may technically fall within the Georgia statute's language, Georgia does not actually prosecute false agency endorsement as forgery. Accordingly, the Government claims, Williams has established no more than a "theoretical possibility" that Georgia would apply its statute to conduct falling outside the federal definition of forgery. See Singh , 839 F.3d at 278.

Williams responds that there is Georgia case law demonstrating that the State actually prosecutes false agency endorsement as forgery, citing Warren v....