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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 240 F.3d 246; 2001
U.S. App. LEXIS 2876 October 30, 2000,
Submitted Under Third Circuit LAR 34.1(a) February 20, 2001,
Filed SUBSEQUENT HISTORY:
Writ of habeas corpus dismissed Drakes v. INS, 205 F. Supp. 2d
385, 2002 U.S. Dist. LEXIS 10144 (M.D. Pa., 2002) PRIOR HISTORY: [*1] ON PETITION FOR REVIEW OF ORDER OF THE BOARD OF IMMIGRATION
APPEALS. (Agency No. A-36524680). State v. Drakes, 1999 Del. Super. LEXIS 454
(Del. Super. Ct., Dec. 8, 1999) COUNSEL:
Alan H. Smith, Esquire, York, Pennsylvania, Attorney for Petitioner. Kate L. Mershimer, Esquire, Office of the United States Attorney,
Harrisburg, Pennsylvania, Attorney for Respondents. JUDGES:
Before: SCIRICA, NYGAARD, and BARRY, Circuit Judges. OPINIONBY:
BARRY OPINION: 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 [*2] felony,#148;
the Board of Immigration Appeals (#147;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, n1 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 (#147;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. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 8 U.S.C. § 1252(b)(2) provides, as relevant here, that
#147;the petition for review shall be filed with the court of appeals for the
judicial circuit in which the immigration judge completed the proceedings.” - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - It is by now well understood that under 8 U.S.C. § 1252(a)(2)(C),
this Court lacks jurisdiction to [*3] consider a final
order of removal against an alien convicted of one or more specified criminal
offenses. n2 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 #147;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. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 8 U.S.C. § 1252(a)(2)(C) provides in pertinent
part: The offenses referred
to in § 1252 include aggravated felonies: controlled substance
convictions; certain firearm, national security, and defense crimes; and
multiple convictions for crimes of moral turpitude. Notwithstanding any other
provision of law, no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed a
criminal offense covered in [8 U.S.C. § ] 1182(a)(2) … . - - - - - - - - - - -
- End Footnotes- - - - - - - - - - - - - - [*4] 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, 2001 WL 46551, *4 (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). [*5] 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 #147;at least one year.” If [*6] 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 (#147;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 #147;aggravated felony” includes #147;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 #147;intending to defraud, deceive or injure another person.”
11 Del. C. § 861. Drakes contends that the Delaware statute goes
beyond forgery’s traditional #147;intent to defraud” element
by also including the intents to #147;injure” and #147;deceive.”
#147;Deceive” and #147;defraud,” the terms on which Drakes
focuses, are not, of course, synonymous. See [*7] United
States v. Yermian, 468 U.S. 63, 73, n.12, 82 L. Ed. 2d 53, 104 S. Ct. 2936
(1984) (#147;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 #147;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 #147;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 #147;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) (#147;It seems to us to be implausible that Congress
intended the meaning of ‘burglary’ … to depend on
the [*8] 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, #147;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) (#147;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 #147;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 #147;formal categorical approach” is appropriate
in such circumstances); see also In re Alcantar, 20 I. & N. Dec. 801, 809
(B.I.A. 1994) [*9] (applying the same approach). The meaning of #147;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 #147;forgery” together with the phrase #147;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 #147;with
intent to defraud”); 18 U.S.C. § 478 (prohibiting forgery of
foreign obligations #147;with intent to defraud”); 18 U.S.C. §
482 (prohibiting forgery of foreign bank notes #147;with intent to defraud”);
18 U.S.C. § 500 (prohibiting forgery of postal service money orders #147;with
intent to defraud”). Thus, in Congress’ view, it may well be [*10] possible
to commit #147;forgery” without #147;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) (#147;in the absence of anything to the contrary it
is fair to assume that Congress used [‘forgery’] in the
statute in its common-law sense.”). If research into the common law
yields several competing definitions, however, courts should look to the
reading that #147;best accords with the overall purposes of the statute”
even if it is the minority view. Moskal, 498 U.S. at 116-17. Where the
traditional definition is out of step with the modern meaning of a term, more #147;generic,
[*11]
contemporary” definitions — such as those found in state
statutes — may apply. See Taylor, 495 U.S. at 596, 598. Furthermore, #147;Congress’
general purpose in enacting a law may prevail over this rule of statutory
construction” altogether. Id. Courts generally define traditional common-law forgery as
requiring an intent to defraud. See, e.g., United States v. McGovern, 661 F.2d
27, 29 (3d Cir. 1981). Similarly, state forgery statutes frequently cite intent
to defraud as the sole requisite intent. See 36 Am. Jur. 2d Forgery §
26 (fraudulent intent an element of most state statutes, although some allow
intent to injure as well). Significantly for the present case, however, at
least six states in addition to Delaware provide in their current forgery
statutes for an intent to deceive. See Conn. Gen. Stat.§ 53a-138
(1999); N.Y. Penal Law § 170.05 (2000); N.D. Cent. Code §
12.1-24-01 (2000); Ky. Rev. Stat. Ann. § 516.020 (2000); Me. Rev.
Stat. Ann. tit. 17-A § 703 (1999); Neb. Rev. Stat. § 28-602
(2000). With these conflicting definitions in mind, we note that Congress
evidenced an intent to define forgery in its broadest [*12] sense by
stating that #147;an offense relating to … forgery” qualifies
under § 1101(a)(43)(R) (emphasis added). Unless the words #147;relating
to” have no effect, the enumerated crime — here, forgery —
must not be strictly confined to its narrowest meaning. See Ruiz-Romero v.
Reno, 205 F.3d 837, 840 (5th Cir. 2000) (alien who transported illegal aliens
within the United States committed an aggravated felony as his crime #147;related
to” alien smuggling; phrase describes a class of crimes and does not
constitute a restriction). The Delaware forgery statute, while apparently
encompassing more conduct than is encompassed by traditional definition of
forgery, is #147;related to” forgery in a way that several states have
made part of their criminal codes. Given the differing formulations of forgery
and the evidence of Congress’ general purpose, we believe it would be
eminently appropriate for the BIA to read into § 1101(a)(43)(R) the
broad minority definition of forgery rather than the narrow traditional
definition. The BIA did not, at least explicitly, engage in the exercise in
which we have engaged to determine the meaning of forgery for purposes of §
1101(a)(43)(R). [*13] Rather, the BIA simply found that (1)
the section covers offenses #147;relating to” forgery, (2) Drakes was
convicted of forgery under § 861 of the Delaware Criminal Code, (3) a
fortiori, his offense was an offense relating to forgery under the Act. Because
we come to the same conclusion, however, it is unnecessary to decide what
deference must be paid the BIA’s scant analysis and somewhat barebones
conclusion in this case. We do not doubt that the principles of Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778
(1984) apply in general to the statutory scheme set out in the INA. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25, 143 L. Ed. 2d 590, 119 S. Ct. 1439
(1999). The Aguirre-Aguirre Court relied upon 8 U.S.C. § 1103(a)(1),
which states that #147;the Attorney General shall be charged with the
administration and enforcement” of statutes under Chapter 8 and that
the #147;determination and ruling by the Attorney General with respect to all
questions of law shall be controlling.” 8 U.S.C. §
1103(a)(1). #147;Based on this allocation of authority, … the BIA
should [*14] be accorded Chevron deference as it gives
ambiguous statutory terms concrete meaning through a process of case-by-case
adjudication.” Id. at 425 (citation, quotation omitted). The Attorney General (through the BIA) ruled that Drakes’s
forgery conviction qualified as an aggravated felony under 8 U.S.C. §
1101(a)(43)(R). This Court’s jurisdiction depends on whether Drakes
did or did not commit an aggravated felony under that section. For the purpose
of determining our jurisdiction, we must examine the definition of §
1101 #147;forgery,” a question of law which requires the
interpretation of immigration law. Failing to accord deference to the BIA’s
interpretation of § 1101, as bereft of explanation as it was, would
appear to run counter to the Supreme Court’s mandate in
Aguirre-Aguirre. n3 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n3 Other courts have employed Chevron deference in interpreting
statutes that ultimately determined their jurisdiction. See, e.g., Bell v.
Reno, 218 F.3d 86, 90 (2d Cir. 2000) (analyzing under Chevron standard whether
the Immigration Act of 1990 superseded the ADAA date restriction with regard to
aggravated felonies); Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir. 2000)
(same); Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999) (according #147;due
deference” to the BIA interpretation of a statute in deciding whether
or not a crime involves #147;moral turpitude” within the terms of 8
U.S.C. § 1227(a)(2)(A)(ii)). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*15] On the other hand, we noted in Sandoval v. Reno, 166 F.3d 225 (3d
Cir. 1999) that Chevron deference is not required where the interpretation of a
particular statute does not #147;implicate[] agency expertise in a meaningful
way” but presents instead #147;a pure question of statutory
construction for the courts to decide.” Sandoval, 166 F.3d at 239-40
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 94 L. Ed. 2d 434, 107 S.
Ct. 1207 (1987)). Sandoval involved determining the effective date of a
particular statute, a specific question having little to do with agency
expertise. Even though Sandoval predated Aguirre-Aguirre, its reasoning does
not seem the least bit undercut by the conclusion reached in that case. This
case appears to fall somewhere between Aguirre-Aguirre and Sandoval. Certainly,
the BIA determined a question of law concerning § 1101(a)(43)(R). Just
as certainly, however, not only did the BIA not, at least explicitly, call upon
any particular expertise in reaching that determination, but defining under
federal law a term such as #147;forgery” is what federal courts do all
the time. Nonetheless, as [*16] we have suggested,
whether we accord deference to the BIA or reach our own conclusion, the result
is the same. II. Having lost on his first argument, Drakes, of course, could still
prevail were we to agree with him that his sentence was simply not long enough
to be a #147;term of imprisonment [of] at least one year,” 8 U.S.C. § 1101(a)(43)(R),
#147;regardless of any suspension of the imposition or execution of that
imprisonment.” 8 U.S.C. § 1101(a)(48)(B). Drakes
contends, and the IJ but not the BIA found, that his suspended sentence of one
year on each count does not fall within the definition of #147;at least one
year.” We do not agree. #147;At least” is commonly held to
mean #147;at the lowest” or #147;as the minimum.” Webster’s
Third New International Dictionary 1287 (1993). There is no indication that
Congress meant anything different when it drafted the statute. n4 A sentence of
one year lasts a specific amount of time, i.e., one year. Just as there is no
denying that a person who has one apple also has #147;at least” one
apple, someone sentenced to one year also qualifies as being sentenced to #147;at
least” one year. Indeed, we have already [*17] concluded
that #147;Congress was sufficiently clear in its intent to include certain
crimes with one-year sentences in the definition of ‘aggravated
felony.’” United States v. Graham, 169 F.3d 787, 788 (3d Cir.
1999), cert. denied 528 U.S. 845, 145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting
the argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n4 Drakes points out that in Song v. INS, 82 F. Supp. 2d 1121
(C.D. Cal. 2000), the District Court mentioned that aliens are aggravated
felons under § 1101(a)(43)(R) if they are sentenced to #147;more than
a year.” Id. at 1126. The Song Court referenced the statute only in
passing, however, and apparently simply misstated its wording. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - III. Because Drakes’ conviction for forgery under Delaware law
and the ensuing one-year sentence met the definition of an #147;aggravated
felony” under 8 U.S.C. § 1101(a)(43)(R), we will
dismiss [*18] Drakes’ petition for lack of
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C). |