Trevor Drakes v. CHARLES W. ZIMSKI, Acting Director of Immigration

Filed February 20, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3232
TREVOR DRAKES,
Petitioner
v.
CHARLES W. ZIMSKI, Acting Director of Immigration and
Naturalization Service; JANET RENO, Attorney General,
Respondents
ON PETITION FOR REVIEW OF ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(Agency No. A-36524680)
Submitted Under Third Circuit LAR 34.1(a)
October 30, 2000
Before: SCIRICA, NYGAARD, and BARRY , Circuit Judges
(Opinion Filed: February 20, 2001)
Alan H. Smith, Esquire
45 North Duke Street
York, Pennsylvania 17401
Attorney for Petitioner

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Kate L. Mershimer, Esquire
Office of the United States Attorney
Federal Building
228 Walnut Street
P. O. Box 11754
Harrisburg, Pennsylvania 17108
Attorney for Respondents
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 Delawar e 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 r emoval
proceedings were initiated. Although the Immigration Judge
found that Drakes' crime did not satisfy the statutory
definition of " aggravated felony," the Boar d of Immigration
Appeals ("BIA") disagreed and order ed 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. W e 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.
_________________________________________________________________
1. 8 U.S.C. § 1252(b)(2) provides, as relevant here, that "the petition for
review shall be filed with the court of appeals for the judicial circuit in
which the immigration judge completed the pr oceedings."
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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, ___ F .3d ___, 2001 WL 46551, *4 (10th
Cir. Jan. 19, 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 deter mined. As the
Fourth Circuit stated:
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2. 8 U.S.C. § 1252(a)(2)(C) provides in pertinent part:
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) . . ..
The offenses referred to in § 1252 include aggravated felonies; controlled
substance convictions; certain firear m, national security, and defense
crimes; and multiple convictions for crimes of moral turpitude.
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[W]here . . . 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 fr om 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 Delawar e 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 of fense. If he is
wrong, as we have already suggested, § 1252(a)(2)(C)
prohibits further inquiry.
I.
The Immigration and Naturalization Act ("INA") 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 . . . for gery . . . for which the term
of imprisonment is at least one year. " 8 U.S.C.
§ 1101(a)(43)(R). Drakes pled guilty to for gery in the second
degree under Delaware law, which pr ovides, 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
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Drakes focuses, are not, of course, synonymous. See United
States v. Yermian, 468 U.S. 63, 73, n.12 (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 r equire an intent to defraud
and Drakes meant only to deceive, the Delawar e 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 r ose is a rose." Appellee
Br. at 18. In the plain language of § 1101(a)(43)(R), the
government contends, Congress added for gery to the list of
aggravated felonies, and Drakes was convicted of what
Delaware calls "forgery." Pr onouncing 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 (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 (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 (1957)
("[I]n 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 deter mine 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 for gery, although it
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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, Congr ess 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 misrepr esentation 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 wor ds of established
meaning without further elaboration, courts typically give
those terms their common law definition. Moskal v. United
States, 498 U.S. 103, 114 (1990); Gilbert v. United States,
370 U.S. 650, 655 (1962) ("in the absence of anything to
the contrary it is fair to assume that Congr ess 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
"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" generic, contemporary"
definitions -- such as those found in state statutes -- may
apply. See Taylor, 495 U.S. at 596, 598. Furthermore,
"Congress' general purpose in enacting a law may prevail
over this rule of statutory construction" altogether. Id.
Courts generally define traditional common-law for gery as
requiring an intent to defraud. See, e.g. , United States v.
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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 for gery in its
broadest sense by stating that "an of fense relating to . . .
forgery" qualifies under § 1101(a)(43)(R) (emphasis added).
Unless the words "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 "r elated to"
alien smuggling; phrase describes a class of crimes and
does not constitute a restriction). The Delawar e forgery
statute, while apparently encompassing mor e conduct than
is encompassed by traditional definition of for gery, is
"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). Rather, the BIA
simply found that (1) the section covers offenses "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.
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We do not doubt that the principles of Chevron v. Natural
Resources Defense Council, 467 U.S. 837 (1984) apply in
general to the statutory scheme set out in the INA. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). The Aguirre-
Aguirre Court relied upon 8 U.S.C.§ 1103(a)(1), which
states that " the Attorney General shall be charged with the
administration and enforcement" of statutes under Chapter
8 and that the "determination and ruling by the Attorney
General with respect to all questions of law shall be
controlling. " 8 U.S.C. § 1103(a)(1). "Based on this allocation
of authority, . . . the BIA should be accorded Chevron
deference as it gives ambiguous statutory ter ms 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 "forgery, " a question of law which
requires the interpretation of immigration law. Failing to
accord deference to the BIA' s interpr etation of § 1101, as
bereft of explanation as it was, would appear to run
counter to the Supreme Court' s mandate in Aguirre-Aguirre.3
On the other hand, we noted in Sandoval v. Reno , 166
F. 3d 225 (3d Cir. 1999) that Chevr on deference is not
required where the interpretation of a particular statute
does not "implicate[ ] agency expertise in a meaningful way"
but presents instead "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,
_________________________________________________________________
3. 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 "due deference" to the BIA interpretation of a statute in
deciding whether or not a crime involves "moral turpitude" within the
terms of 8 U.S.C. § 1227(a)(2)(A)(ii)).
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446 (1987)). Sandoval involved deter mining 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 r eaching
that determination, but defining under federal law a term
such as "forgery" is what federal courts do all the time.
Nonetheless, as we have suggested, whether we accor d
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 agr ee with him that his
sentence was simply not long enough to be a "ter m of
imprisonment [of] at least one year, " 8 U.S.C.
§ 1101(a)(43)(R), "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"at least
one year. " We do not agree."At least" is commonly held to
mean "at the lowest" or "as the minimum." Webster' s Third
New International Dictionary 1287 (1993). There is no
indication that Congress meant anything dif ferent when it
drafted the statute.4 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 "at least" one
apple, someone sentenced to one year also qualifies as
being sentenced to "at least" one year . Indeed, we have
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4. Drakes points out that in Song v. INS, 82 F. Supp.2d 1121 (C. D. Cal.
2000), the District Court mentioned that aliens ar e aggravated felons
under § 1101(a)(43)(R) if they are sentenced to "more than a year." Id. at
1126. The Song Court referenced the statute only in passing, however,
and apparently simply misstated its wor ding.
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already concluded that "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 (rejecting the argument that a one-year sentence
does not implicate 8 U.S.C. § 1101(a)(43)(G)).
III.
Because Drakes' conviction for forgery under Delaware
law and the ensuing one-year sentence met the definition of
an "aggravated felony" under 8 U. S.C. § 1101(a)(43)(R), we
will dismiss Drakes' petition for lack of jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(C).
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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