Bobb v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

8-3-2006

Bobb v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-2891

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2891

ALVIN BOBB,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A43 156 231)

Immigration Judge R. K. Malloy

Argued June 13, 2006

Before: FISHER, ALDISERT and LOURIE,* Circuit Judges.

*

The Honorable Alan D. Lourie, United States Circuit

Judge for the Federal Circuit, sitting by designation.

(Filed: August 3, 2006)

Steven A. Morley (Argued)

Morley, Surin & Griffin

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106

Attorney for Petitioner

Viveca D. Parker (Argued)

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorney for Respondent

OPINION OF THE COURT

FISHER, Circuit Judge.

Petitioner Alvin Bobb, a lawful permanent resident,

pleaded guilty to forging a check in the amount of $13,277, in

violation of 18 U.S.C. § 510(a)(2), and was sentenced to four

months imprisonment. An immigration judge (“IJ”) determined

at Bobb’s bail hearing that his conviction was not an

“aggravated felony” for purposes of removal, and the Board of

Immigration Appeals (“BIA”) affirmed. At a subsequent

removal hearing, however, a different IJ determined that the

crime was an “aggravated felony,” which the BIA affirmed.

That decision has dire consequences for Bobb’s efforts to

2

remain in the United States, as it renders him removable and

precludes him from seeking discretionary relief from removal in

the form of a readjustment of status.

Our task is to determine whether Bobb’s conviction was

an “aggravated felony.” In so doing, we must survey the

interrelationship between two statutory provisions set forth

under 8 U.S.C. § 1101(a)(43): subsection (M)(i), which states

that an “aggravated felony” is “an offense . . . that involves

fraud or deceit in which the loss to the victim exceeds $10,000”;

and subsection (R), which states that “an offense relating to . . .

forgery . . . for which the term of imprisonment is at least one

year” is an “aggravated felony.” Bobb contends that the BIA

erred in holding he committed an aggravated felony because

subsection (R), which specifically references the crime of

forgery and all related offenses, is the exclusively applicable

aggravated felony provision for all forgery offenses. In the

alternative, Bobb argues that his offense was a “hybrid offense”

under our recent opinion in Nugent v. Ashcroft, 367 F.3d 162

(3d Cir. 2004), and that the government accordingly should have

been required to establish all the criteria specified by both

subsections. Under either theory, Bobb’s conviction would not

constitute an aggravated felony because subsection (R) includes

a requirement that the alien have served a term of imprisonment

of greater than one year.

This appeal asks us to decide which “aggravated felony”

definition applies to Bobb’s case – the “related to forgery”

provision of subsection (R), the broad catch-all “fraud”

provision of subsection (M)(i), or both. For the reasons set forth

below, we conclude that the BIA did not err in determining that

3

Bobb’s underlying criminal conviction was an “aggravated

felony” under subsection (M)(i), and that Bobb’s conviction was

not a “hybrid offense” under Nugent. Accordingly, we will deny

Bobb’s petition for review.

I.

Bobb is a native and citizen of Trinidad and Tobago who

entered the United States as a lawful permanent resident on

September 30, 1991. On December 18, 1995, Bobb forged a

United States Treasury check in the amount of $13,277. He was

subsequently charged with forging endorsements on treasury

checks, in violation of 18 U.S.C. § 501(a)(2). Bobb pleaded

guilty and was sentenced by the District Court on October 21,

1999, to a term of imprisonment of four months.

On December 14, 1999, the INS 1 issued Bobb a Notice

to Appear, charging that he was subject to removal from the

United States for committing an aggravated felony as defined

under section 1101(a)(43)(M)(i) of the Immigration and

Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(M)(i). On

June 6, 2000, the INS lodged an additional deportation charge

1

On March 1, 2003, the INS ceased to exist as an agency

of the Department of Justice. Pursuant to the Homeland

Security Act of 2002, the enforcement functions of the INS were

transferred to the Department of Homeland Security, Bureau of

Immigration and Customs Enforcement (“BICE”). See

Homeland Security Act of 2002, Pub. L. No. 107-296, § 441,

116 Stat. 2135, 2192.

4

against Bobb alleging a separate ground for removability: that

he had been convicted of a crime involving moral turpitude

committed within five years after his admission, and for which

a sentence of one year or more imprisonment could be imposed.

See 8 U.S.C. § 1227(a)(2)(A)(i). Bobb has conceded this second

charge, see App. 11, but disputes the first charge that his

conviction was an aggravated felony under subsection (M)(i).

At Bobb’s initial bond hearing, an IJ concluded that

Bobb’s offense was not an aggravated felony and that he

therefore qualified for bond. (App. 33-37.) The IJ, noting that

Congress had to have been aware when it enacted subsection (R)

that “forgery is always fraud,” determined that including all

forgery offenses in subsection (M)(i) would render subsection

(R) surplusage unless Congress manifested a clear intention to

have the general “fraud” provision govern over the specific

“forgery” section. As a result, the IJ granted Bobb bond in the

amount of $1,500.00, a decision which the BIA affirmed over

the government’s appeal. (App. 37-38.)

Following his release on bond, Bobb sought to terminate

his removal proceedings in order to apply for a readjustment of

status. As a lawful permanent resident married to a United

States citizen, Bobb is eligible to petition BICE for a

discretionary readjustment of status unless, inter alia, it is

determined that he has committed an “aggravated felony.” See

8 U.S.C. § 1182(h). The government countered Bobb’s motion

by moving to pretermit Bobb’s application.

A second IJ conducted removability proceedings and

considered the motions. The IJ noted that the prior

5

determination at the bond hearing that Bobb’s conviction was

not an aggravated felony was not controlling in the removability

proceedings. See 8 C.F.R. § 1003.19(d) [formerly § 3.19(d)].2

The IJ held that Bobb’s conviction satisfied subsection (M)(i),

and that the INS was not obligated to charge Bobb under

subsection (R). Citing the legislative history of subsection (R),

the IJ explained that accepting Bobb’s interpretation would lead

to the “absurd result” that the addition of subsection (R) to

section 1101(a)(43) had decreased the number of crimes that

could be considered aggravated felonies, despite Congressional

intent to the contrary. (App. 58.) See H.R. Rep. No. 104-22, at

7 (1995); 141 Cong. Rec. E330-01 (1995). Accordingly, the IJ

concluded that subsections (M)(i) and (R) were separate and

distinct statutes:

2

That section provides as follows:

Consideration by the Immigration Judge of an

application or request of a respondent regarding

custody or bond under this section shall be

separate and apart from, and shall form no part of,

any deportation or removal hearing or proceeding.

The determination of the Immigration Judge as to

custody status or bond may be based upon any

information that is available to the Immigration

Judge or that is presented to him or her by the

alien or the Service.

8 U.S.C. § 1003.19(d).

6

The fraud section of the INA deals with offenses

involving fraud or deceit where the loss to the

victim(s) is greater than $10,000. The “forgery

section” is actually not a section limited to forgery

offenses (a subset of fraud), but instead includes

a variety of organized crime relating to

immigration, and further requires one year

imprisonment. One section, INA

§ 101(a)(43)(M)(i) was enacted to deport

individuals engaging in deceptive conduct causing

great loss of money, and the other section, INA

§ 101(a)(43)(R), was enacted to deport those

whose crimes were serious enough to merit one

year of imprisonment.

(App. 59.) The decision finding that Bobb’s underlying offense

was an aggravated felony resolved both pending motions, and it

barred Bobb from receiving a discretionary readjustment of

status.3 On January 24, 2004, the BIA affirmed without opinion.

(App. 63.)

II.

On June 24, 2004, Bobb filed a petition for writ of habeas

corpus in the United States District Court. While that petition

3

The parties agree that Bobb is not eligible for

cancellation of removal, the other form of discretionary relief

available for a permanent resident convicted of a crime. 8

U.S.C. § 1229b(a).

7

remained pending, Congress passed the Real ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231. Pursuant to the terms of that

Act, we convert Bobb’s habeas petition into a petition for

review. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d

Cir. 2005).

We have jurisdiction over Bobb’s petition for review

under 8 U.S.C. § 1252(a)(1). Under the REAL ID Act, our

jurisdiction extends to “‘questions of law raised upon a petition

for review,’ including petitions for review of removal orders

based on aggravated felony convictions. 8 U.S.C.

§ 1252(a)(2)(D).” Popal v. Gonzalez, 416 F.3d 249, 251 (3d

Cir. 2005). We exercise de novo review over the BIA’s

conclusion that Bobb’s criminal conviction constitutes an

aggravated felony. Ki Se Lee v. Ashcroft, 368 F.3d 218, 221 (3d

Cir. 2004).4

4

Although we give Chevron deference to the BIA’s

interpretation of the aggravated felony provisions of the INA if

we determine that the statute is ambiguous, see Valansi v.

Ashcroft, 278 F.3d 203, 208 (3d Cir. 2002), the BIA is not

entitled to Chevron deference as to whether a particular federal

criminal offense is an aggravated felony. That determination

requires us to interpret federal criminal law and our own

appellate jurisdiction, matters outside the authority or expertise

of the BIA. See Tran v. Gonzalez, 414 F.3d 464, 467 (3d Cir.

2005) (declining to give Chevron deference to the BIA’s

interpretation of a federal criminal statute because it was “a task

outside the BIA’s special competence and congressional

delegation, while it is very much a part of this Court’s

8

III.

At the outset, it is helpful to identify the parties’

competing arguments. Bobb contends that we should read

subsection (M)(i) to encompass all fraud or deceit not otherwise

specified in section 1101(a)(43). Thus, since subsection (R)

specifically covers “forgery,” the Government should not be

permitted to charge Bobb as being removable under subsection

(M)(i). In contrast, the Government argues that subsection (R)

is not merely a subset of subsection (M)(i). According to the

Government, not all forgery-related offenses involve fraud, and

Congress’s intent in enacting subsection (R) was, in part, to

capture those forgery-related offenses that do not involve fraud

and deceit. As a result, the Government argues that the BIA

correctly concluded that Bobb was convicted of an offense that

involved fraud and deceit.

Our task is twofold: first, we must determine whether

Congress intended that forgery-related convictions constitute

aggravated felonies only under subsection (R); and second,

whether, in the alternative, Bobb’s offense is a “hybrid offense”

that requires the government to meet all the requirements of

both subsections (M)(i) and (R) in order to remove Bobb.

competence”); see also Soliman v. Gonzales, 419 F.3d 276, 281

(4th Cir. 2005).

9

A.

We begin by examining whether Congress intended

subsection (R) to be the sole avenue for a forgery-related

conviction to constitute an aggravated felony. Relying on the

principle of statutory construction that a specific statutory

provision controls a general provision, Bobb argues that his

forgery-related conviction can only constitute an aggravated

felony under subsection (R), not subsection (M)(i). This

argument, however, is misplaced. The government had the

discretion to charge Bobb with an aggravated felony under

either or both subsections for three primary reasons. First, the

broad language used by Congress in both subsections precludes

a finding that subsection (R) removed all forgery convictions

from the ambit of subsection (M)(i). Second, the legislative

history is clear that Congress’ intent in enacting subsection (R)

was to increase the number of “aggravated felonies,” not to

provide a loophole through which an offense that would

otherwise have constituted an “aggravated felony” would escape

that classification. Finally, a conclusion that the INS cannot

bring removal proceedings under both subsections has no

analogue in the criminal context, in which courts have

recognized prosecutorial discretion to bring charges when

particular statutes overlap. We will examine each of these

points in turn.

1.

Bobb, heeding the familiar canon of statutory

construction that a specific statutory provision controls a general

provision when the two provisions cover the same factual

10

context, contends that subsection (R) trumps subsection (M)(i)

and is the exclusive avenue to bring removability proceedings

for forgery-related convictions. Bobb asserts that subsection (R)

would be superfluous if aliens chargeable under subsection (R)

were always also chargeable under subsection (M)(i).

Although Bobb’s argument is somewhat inviting, it

ultimately fails because subsections (M)(i) and (R) were both

drafted broadly by Congress. On previous occasions, we have

had the opportunity to interpret the scope of both subsections.

In Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002), we

determined that Congress intended subsection (M)(i) to have a

broad scope because that provision refers to an offense that

“involves fraud or deceit” and which results in losses greater

than $10,000. Id. at 209-10. As a result, we held that

subsection (M)(i) covers all offenses that have as an essential

element an intent to defraud or deceive. Id. at 210. See Ki Se

Lee, 368 F.3d at 222 (3d Cir. 2004) (“Subsection (M)(i) has a

general application – the gamut of state and federal crimes

involving fraud and deceit causing losses over $10,000.”).

We considered the scope of subsection (R) in Drakes v.

Zimski, 240 F.3d 246 (3d Cir. 2001). There, the petitioner was

convicted in Delaware of second-degree forgery, which had as

an essential element an intent to deceive. The petitioner argued

that his conviction did not constitute an “aggravated felony”

because Congress intended the federal definition of “forgery” to

extend only to crimes involving an intent to defraud. We noted

that the term “forgery” under federal law was ambiguous, and

that there was a split among the states as to whether forgery

necessarily included an intent to defraud. A minority of states,

11

including Delaware, had held that forgery could also be

premised on an intent to deceive. Id. Relying upon the

conflicting interpretations among the different states, we

rejected the petitioner’s argument and held that Congress

intended to define forgery in its broadest sense by using the

language “relating to . . . forgery” in subsection (R). We

concluded that “[t]he Delaware forgery statute, while apparently

encompassing more conduct than is encompassed by traditional

definition of forgery, is ‘related to’ forgery in a way that several

states have made part of their criminal codes.” Id. at 250. For

this reason, we determined that it was appropriate for the BIA to

read the “broad minority definition” into Subsection (R) rather

than the “narrow traditional definition.” Id.

The broad construction we have given to subsections

(M)(i) and (R) rebuts Bobb’s argument that all forgery

convictions are necessarily governed by subsection (R) rather

than subsection (M)(i). Perhaps if subsection (R) had been

drafted differently – for example, if it had used the language

“forgery offense” instead of “related to . . . forgery” – then

Bobb’s argument would have merit. At their core, all common

law forgery offenses contain as an element an intent to defraud

or deceive.5 We are not dealing here, however, with a

5

See, e.g., Commonwealth v. Leber, 802 A.2d 648 (Pa.

Super. Ct. 2001); Wayne R. LaFave, Substantive Criminal Law,

§ 19.7(j)(5) (2d ed. 2003) (stating that “[f]orgery requires an

intent to defraud”); Black’s Law Dictionary 677 (8th ed. 2004)

(defining “forgery” as “1. The act of fraudulently making a false

document or altering a real one to be used as if genuine. . . .

12

straightforward forgery offense because Congress drafted

subsection (R) more expansively, including offenses “related to

. . . forgery.” The term “relate” means “to show or establish a

logical or causal connection between.” Webster’s Third New

International Dictionary (Unabridged) 1916 (1991). Subsection

(R) thus encompasses conduct beyond the traditional definition

of forgery, and includes criminal conduct that is causally

connected to forgery, but may lack as an essential element an

intent to defraud or deceive.

The Government provides in its brief a good example of

an offense “related to” forgery that does not have as an element

an intent to defraud or deceive: 18 U.S.C. § 510(b). Section

510(b) criminalizes the knowing exchange of stolen or forged

Treasury instruments:

(b) Whoever, with knowledge that such Treasury

check or bond or security of the United States is

stolen or bears a falsely made or forged

endorsement or signature buys, sells, exchanges,

2. A false or altered document made to look genuine by

someone with intent to deceive.”); Model Penal Code § 224.1;

37 C.J.S. § 2 (1997) (“While it is true that there is a distinction

between fraud and forgery, and forgery contains some elements

that are not included in fraud, forgeries are a species of fraud.

In essence, the crime of forgery involves the making, altering,

or completing of an instrument by someone other than the

ostensible maker or drawer or an agent of the ostensible maker

or drawer.”).

13

receives, delivers, retains, or conceals any such

Treasury check or bond or security of the United

States shall be fined under this title or imprisoned

not more than ten years, or both.

18 U.S.C. § 510(b). A conviction under subsection 510(b)

contains two essential elements: (1) that the defendant buy, sell,

or exchange a stolen or forged endorsement, (2) with knowledge

that the instrument has been stolen or forged. See United States

v. Clemmons, 892 F.2d 1153 (3d Cir. 1989) (upholding the

defendant’s conviction under subsection 510(b) where there was

evidence that the defendant knew the bonds were stolen and

attempted to sell the bonds to a government informant).

Conspicuously absent from this definition is any element

containing an intent to defraud or deceive. Yet, there can be no

doubt that selling a forged check to a middleman would

constitute an offense “related to forgery”: but for the forged

endorsement, there would be no criminal offense. In fact, we

have explained that the purpose of section 510(b) was to close

a loophole in the law which did not permit the government to

prosecute a defendant who sold or transferred forged or stolen

instruments to another party without representing that the

instruments were genuine. See United States v. Williams, 850

F.2d 142, 145 (3d Cir. 1988) (stating that section 510(b) “sets

forth that the defendant must have knowledge that the

instrument is forged but gives no indication that he must

represent it is genuine”). We agree with the government that

Congress’ choice of the word “related to” was intended to

capture certain criminal conduct, such as that defined by 18

U.S.C. § 510(b), which does not contain any intent to deceive or

14

defraud.6 See Drakes, 240 F.3d at 250 (referencing Congress’s

intent to define forgery in the broadest sense because it used the

phrase “related to” in subsection (R)); see also Valansi, 278

F.3d at 210 (referencing Congress’s intent to broaden the scope

of subsection (M)(i) by using the term “involves”).

Despite the broad construction we have given subsections

(M)(i) and (R), Bobb argues that our decision in Ki Se Lee v.

Ashcroft, 368 F.3d 218 (3d Cir. 2004), compels the conclusion

that Bobb can only be charged as removable under subsection

(R). In Lee, the petitioners were convicted of filing false

income tax returns causing a tax delinquency in an amount

greater than $50,000. The INS brought removability

proceedings under subsection (M)(i), since the amount at issue

was greater than $10,000. We held that the INS was precluded

from removing the petitioners under subsection (M)(i) because

a different provision, subsection (M)(ii), which applied

specifically to tax evasion offenses in which the revenue loss to

the government exceeded $10,000, identified the only removable

tax offense. We set forth three reasons for our conclusion.

First, we noted that our interpretation was the only way to avoid

surplusage because there was no scenario whereby tax evasion

6

In addition to section 510(b), there are a number of other

federal forgery statutes that do not contain an express element

of an intent to defraud or deceive. See generally United States

v. Cowan, 116 F.3d 1360, 1363 (10th Cir. 1997) (explaining that

statutes in Chapter 25 of Title 18, which are designed to protect

the integrity of government functions, do not have as an element

the intent to defraud or deceive).

15

did not involve fraud or deceit. Thus, subsection (M)(i) did not

exist simply as a “catch-all” section for certain tax fraud crimes

not covered by (M)(ii). Second, we determined that Congress

acted purposefully by singling out tax evasion within the same

subsection as the fraud provision in an overall statute with

numerous subsections. Id. at 223 (“Where Congress includes

particular language in one section of the statute but omits it in

another section of the same act, it is generally presumed that

Congress acts intentionally and purposefully in the disparate

inclusion or exclusion.”) (citation omitted). We focused on the

fact that subsections (M)(i) and (M)(ii) were “interrelated and

closely positioned,” i.e., they were adopted at the same time and

appeared within the same subsection within a statute that

contained twenty-one separate subsections specifying

aggravated felonies. Id. In that context, Congress’s choice to

list the crime of tax evasion as a separate subsection led to our

conclusion that tax evasion was the only removable tax-related

aggravated felony. Id. at 224. Finally, we stated that the history

and structure of the criminal tax laws supported the

interpretation that Congress intended to single out tax evasion

as the only tax crime that could be a removable offense. Id. We

concluded that “in enacting subsection (M)(ii), [Congress]

intended to specify tax evasion as the only deportable tax

offense; it follows that it did not intend subsection (M)(i) to

cover tax offenses.” Id.

This case, however, is different from Lee primarily

because, as demonstrated above, there exist offenses “related to”

forgery which do not contain as an essential element an intent to

defraud or deceive. Unlike subsection (M)(ii), subsection (R)

does not define offenses that would otherwise fall entirely

16

within (M)(i): the language of subsection (R) is much broader

than that of subsection (M)(ii), and unlike (R), (M)(ii) was listed

in the same subsection as (M)(i), the general fraud aggravated

felony. The fact that there are numerous federal and state

statutes “related to” forgery that do not have as an essential

element an intent to defraud or deceive shows that subsection

(R) is not a subset of subsection (M)(i). While there are

offenses that fall under subsection (R) but not subsection (M)(i),

section 510(a)(2) offenses are not among them. Section

510(a)(2) offenses can constitute aggravated felonies under

either subsection (M)(i) or subsection (R) because of the broad

manner in which Congress drafted both subsections.7 As such,

subsection (R) is not the sole avenue to charge Bobb with

removability for his conviction under section 510(a)(2).

2.

The legislative history of subsection (R) also supports the

IJ’s determination. Subsection (R) was enacted in order to

increase the number of “aggravated felonies” that could be

charged as removable offenses. Subsection (R) was added to

7

For example, all section 510(a)(2) offenses have as an

element the specific intent to defraud and thus fall within

subsection (M)(i)’s broad definition of an offense that “involves

fraud or deceit” as long as the loss to the victim exceeds

$10,000. In addition, all section 510(a)(2) offenses have as an

element that the check passed by the defendant “bore a forged

or falsely made endorsement” and thus come within the ambit of

subsection (R) if the term of imprisonment is at least one year.

17

section 1101(a)(43) as part of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32, §

440(e)(8), 110 Stat. 1214.8 The House Report submitted in

connection with that legislation confirms Congress’ intent to add

several crimes to the definition of “aggravated felony”:

One of the steps the Committee

recommends to accomplish the . . . goal [of

strengthening the government’s ability to

efficiently deport aliens who are convicted of

serious crimes] is to add several crimes to the

definition of “aggravated felony.” Aliens who

commit aggravated felonies can be deported from

the United States when they complete their

incarceration. Many of the crimes added to this

8

Subsection (R) was originally drafted as part of the

Criminal Alien Deportation Improvements Act of 1995, H.R.

668, 104th Cong. (1995), a House bill that was never enacted.

Subsection (R) was eventually enacted, however, as part of the

AEDPA. Subsection (R) originally defined an “aggravated

felony” as an offense “related to . . . forgery . . . for which a

sentence of 5 years’ imprisonment or more may be imposed.”

Later in 1996, Congress amended subsection (R) in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, § 321(a)(10), 110 Stat. 3009, to

strike the language “for which a sentence of 5 years’

imprisonment or more may be imposed” and to insert in its place

the current language of “for which the term of imprisonment is

at least one year.”

18

list are those often committed by persons involved

in organized immigration crime. The crimes

added to this definition include: certain gambling

offenses; crimes involving transportation of

person[s] for the purpose of prostitution; alien

smuggling; counterfeiting, forging, or trafficking

in immigration and other documents; and

trafficking in stolen vehicles.

In adding crimes to the list, effort was

made to ensure that the overall reach of the

definition would be consistent with the sentencing

guidelines established by the United States

Sentencing Commission. With only certain

limited exceptions, the Committee attempted to

ensure that all of the crimes defined as aggravated

felonies carry a base offense level of at least 12.

These minimums have been selected to ensure

that only the most serious crimes, or the more

serious convictions of lesser crimes, render the

alien deportable.

H.R. Rep. No. 104-22, at 7 (1996).

The broad language used in subsection (R), combined

with the legislative history, confirms that Congress did not

intend to hamstring the INS’s ability to bring enforcement

proceedings, but rather to increase the number of removable

offenses. A different interpretation simply makes no sense.

Congress is presumed to have understood that “forgery

offenses” historically have had as an essential element an intent

19

to defraud or deceive, and thus that they fell under subsection

(M)(i). But there was a gap in the existing language of

subsection (M)(i), because it did not cover: (1) the sale of

forged or stolen documents to middlemen; and (2) other offenses

that are related to forgery, but which do not contain as an

essential element an intent to defraud or deceive. As the IJ

correctly noted in his opinion, it simply would make no sense

“to remove the immigration consequences from offenses that

previously were considered aggravated felonies.” (App. 5.) In

this respect, Congress’s choice to use the phrase “related to” was

deliberate because it evidenced an intent to categorize as

“aggravated felonies” crimes which previously were not covered

by section 1101(a)(43). (See App. 6.) (“One section, INA

§ 101(a)(M)(i), was enacted to deport individuals engaging in

deceptive conduct causing great loss of money, and the other

section, INA § 101(a)(43)(R) was enacted to deport those whose

crimes were serious enough to merit one year of

imprisonment.”).

3.

An additional reason for finding that the INS could

proceed under either subsection (M)(i) or (R) is that Bobb’s

argument – that because he may be removed solely under

subsection (R) he therefore cannot be removed under subsection

(M)(i) – has no analogue in criminal law. It is not uncommon

that federal criminal statutes partially overlap, permitting

prosecutors to bring criminal charges under either one section or

the other. As the Supreme Court recognized, there are

sometimes partial redundancies in federal criminal statutes “both

as to the conduct they proscribe and the individuals they reach.”

20

United States v. Batchelder, 442 U.S. 113 (1979). In

Batchelder, the Court rejected the argument that a defendant

convicted under one overlapping statute could be imprisoned to

no more than the maximum term specified under another

overlapping statute.9 Id. at 118. In so doing, the Court

determined that each statute, “in conjunction with its own

sentencing provision, operates independently of the other.” Id.

The Court explained that it was “‘not enough to show that the

two statutes produced differing results when applied to the same

factual situation’ . . . [r]ather, the legislative intent to repeal [one

of the statutes] must be manifest in the ‘positive repugnancy

between the provisions.’” Id. at 122 (citations omitted). The

Court found that the differing penalty provisions were “fully

capable of coexisting because they apply to convictions under

different statutes.” Id. Applying the longstanding principle that

“when an act violates more than one criminal statute, the

Government may prosecute under either so long as it does not

discriminate against any class of defendants,” the Court upheld

the defendant’s conviction and sentence. Id. at 123-26. See

Berra v. United States, 351 U.S. 131 (1956) (upholding the

9

The defendant, a convicted felon, was convicted of

receiving a firearm that had traveled in interstate commerce, in

violation of 18 U.S.C. § 922(h), which carried a maximum term

of imprisonment of five years. See 18 U.S.C. § 924(a). Another

statutory provision of the same act (The Omnibus Crime Control

and Safe Streets Act, 82 Stat. 197 (1968)), 18 U.S.C. App.

§ 1202, also prohibited a felon from possessing a firearm,

although the maximum term of incarceration under that section

was two years’ imprisonment.

21

defendant’s felony conviction when misdemeanor tax evasion

statute would have proscribed identical conduct and imposed a

lesser penalty), superseded by statute on other grounds as stated

in Sansone v. United States, 380 U.S. 343, 350 n.6 (1965).

Similarly, this Court recognized in United States v.

Williams, 850 F.2d 142 (3d Cir. 1988), the possibility that a

defendant could be prosecuted for the same conduct under either

18 U.S.C. § 510(a)(2) or (b). In Williams, we noted that section

510 was enacted to close several loopholes that had existed for

forgery-related prosecutions. Under existing law, the

government could not prosecute a defendant for forgery offenses

involving United States Treasury instruments. In addition, there

was no avenue prior to the enactment of section 510(b) to

prosecute a defendant “if a properly endorsed check is stolen

and then cashed or if the thief sells the check without endorsing

it.” Id. at 147. The defendant argued that section 510(a)(2) was

superfluous because many offenses chargeable under section

510(a)(2) could also be charged under section 510(b). We

rejected that argument, noting that “no matter how 18 U.S.C.

§ 510 is read there will be redundancies within its subsections.”

See id. (“For example, under any conceivable reading of 18

U.S.C. § 510 a thief who steals a treasury check and then

endorses it and, representing it as genuine, cashes it with an

innocent merchant, can be prosecuted under either subsection

(a)(2) or subsection (b) for the transaction.”). Despite these

partial redundancies, we concluded that the subsections were

distinct and covered separate conduct:

[T]here are differences between the

subsections though undoubtedly their provisions

22

overlap. Thus, 18 U.S.C. § 510(b) deals with

validly endorsed or unendorsed instruments and

section 510(a)(2) does not. On the other hand the

latter but not the former section mentions

attempts. In any event if the subsections are to be

mutually exclusive, though we see no reason why

they should be, Congress will have to rewrite

them as we cannot. . . .

[T]he principle novelties in 18 U.S.C.

§ 510 were in subsection (b), which closed the

loophole in section 495 in favor of the thief who

stole an endorsed check or sold the check without

enclosing it, and in subsection (c) which deals

with penalties. Thus in subsection (b) Congress

added a provision without a comparable

antecedent in section 495. But at the same time it

enacted section 510(a)(2) which traversed ground

already covered by section 495. In the

circumstances it is not surprising that there is

duplication. Indeed, . . . 18 U.S.C. § 510 itself

partially repeats provisions from section 495.

Id. Similar considerations in the present case support a

conclusion that Congress did not intend that Bobb could only be

charged as removable under subsection (R).

The cases cited by Bobb for the proposition that the

specific statutory provision trumps the general provision all

dealt with statutes that were coextensive with one another, or

where Congressional intent was clear that a specific provision

23

trumped a general one. For example, the Supreme Court held in

Busic v. United States, 446 U.S. 398 (1980), superseded by

statute on other grounds as stated in United States v. Gonzales,

520 U.S. 1, 10 (1997), that the defendant could not be sentenced

under the statutory enhancement provision in 18 U.S.C. § 924(c)

(providing an enhanced penalty for using a firearm in

connection with a crime of violence) where the predicate

offense of assaulting a federal officer with a dangerous weapon

contained its own specific statutory enhancement. The Court

determined that the more specific enhancement provision in the

predicate offense trumped the general enhancement provision in

section 924(c) when both enhancement provisions covered the

same conduct. Thus, the government was precluded from

proceeding under section 924(c).

Similarly, in United States v. LaPorta, 46 F.3d 152 (2d

Cir. 1994), the defendants set fire to a government vehicle

provided by a confidential informant in an effort to obtain

insurance proceeds. The defendants were charged, inter alia,

under 18 U.S.C. § 844(h)(1) with using an explosive device to

commit a felony. The defendants argued that the charge should

be dismissed because their conduct was covered solely by

section 844(f), which prohibits the destruction of government

property. The Second Circuit agreed, determining that the

specific statute relating to the destruction of government

property necessarily controlled the broader statute because

otherwise section 844(f) would have no practical effect.

According to the court, a contrary interpretation would render

section 844(f) superfluous because the government would

always have the ability to charge under the general offense, and

24

would do so in most cases do so because it contained more

stringent penalties. Id. at 156.

The distinction between the decisions in Batchelder and

Williams and the decisions in Busic and LaPorta is this: the

government is required to proceed under a specific statute only

if proceeding under a general statute would render the specific

statute superfluous. A statute is rendered superfluous only if a

general statute can cover every possible circumstance covered

by the specific. See, e.g., Lee, 368 F.2d at 222-24. Under those

circumstances, the general statute must give way to the specific.

In this case, subsections (M)(i) and (R) are not coextensive. The

government was entitled to charge Bobb as removable under

either subsection because not all conduct covered by subsection

(R) is covered by subsection (M)(i).

For these reasons, we conclude that the IJ did not err in

finding that the government was entitled to charge Bobb as

removable under subsection (M)(i).

B.

Apart from whether the government is entitled to charge

Bobb under subsection (M)(i) remains an equally important

question: whether the government – whichever provision it

chooses – must meet the requirements of both subsections (M)(i)

and (R) to remove Bobb from the United States as an aggravated

felon. The answer to this question depends upon whether

Bobb’s underlying conviction qualifies as a “hybrid offense” as

set forth in our recent opinion in Nugent v. Ashcroft, 367 F.3d

162 (3d Cir. 2004).

25

The alien in Nugent was convicted in Pennsylvania of the

crime of theft by deception for depositing a bad check in the

amount of $4,831.26, and sentenced to a term of imprisonment

of six to twenty-three months. The BIA ordered Nugent

removed under 8 U.S.C. § 1101(a)(43)(G), which defines as an

aggravated felony a “theft offense . . . for which the term of

imprisonment [is] at least one year.” Nugent argued that his

conviction for theft by deception was not a “theft offense,” but

rather was a fraud offense covered by subsection (M)(i). As in

the present case, the distinction was important for Nugent: he

was not removable under subsection (M)(i) because his offense

involved a loss to the victim of less than $10,000. If subsection

(G) applied, however, he was removable because he was

sentenced to a term of imprisonment of at least one year.

In addressing Nugent’s arguments, we first had to

determine the scope of subsection (G). We concluded that a

“theft offense” under subsection (G) could be defined as “a

taking of property or an exercise of control over property

without consent.” Id. at 174. We found that, given this broad

definition, Nugent’s bad check transaction was a “theft offense.”

We held, however, that this did not end our inquiry:

The sole question for decision is whether within

the purview of Pennsylvania’s theft by deception

statute, Section 3922, Nugent’s conviction for

passing a bad check represents “an offense

involving fraud or deceit” under 8 U.S.C.

§ 1101(a)(43)(M)(i), notwithstanding that it also

constitutes a “theft offense” under 8 U.S.C.

§ 1101(a)(43)(G). If we decide that Nugent’s

26

conviction is “an offense that involves fraud or

deceit as well as “a theft offense,” then to qualify

as an aggravated felony under the INA it must

m eet the requirements of S ection

1101(a)(43)(M)(i), loss to the victim of more than

$10,000, in addition to Section 1101(a)(43)(G),

term of imprisonment of at least one year.

Id. at 174-75. After further analysis, we determined that

Nugent’s theft by deception offense also fell within the purview

of subsection (M)(i) because it required the Commonwealth to

prove fraud and deceit. Id. at 178.

We employed principles of logic to reach the conclusion

that the INS was required to prove the elements of both

subsection (G) and subsection (M)(i). The terms employed to

define the covered offenses were key to our determination.

Subsection (G) is limited to “theft offenses,” while subsection

(M)(i) applies more broadly to an “offense that involves fraud

or deceit.” Id. at 175. We found this distinction significant,

concluding that “[Subsection] (M)(i) clearly applies to those

‘theft offenses’ under Subsection (G) that are anchored on

‘fraud or deceit’”:

[T]he logicians teach us that a term such as

“an offense” as contained in Section

1101(a)(43)(M) or a “theft offense” as in Section

1101(a)(43)(G), is said to have both a quality and

a quantity. Here we are concerned with quantity.

The quantity of a proposition is universal or

particular according to whether the proposition

27

refers to all members of a class or to some

members of the class designated by its subject

term. In the case of (M) we have a term

representing all members of a class – “an

offense.”

When a term contains no restrictions (as in

(M) – “an offense”), logicians refer to it as

“distributed,” and the proposition of which it is

the subject as “universal” and is a class. In the

universe of offenses set forth in Section

1101(a)(43), however, the term “theft offense” is

predicated on some, but not all, of the distributed

term “an offense” in (M), and is therefore

considered as “undistributed” and is a subclass.

The proposition of which it is the subject is

denoted as a “particular.” See Ruggero J.

Aldisert, Logic for Lawyers: A Guide to Clear

Legal Thinking 57-59 (3d ed. 1997); Irving M.

Copi, Introduction to Logic 173 (7th ed. 1986).

Expressed in less technical phrasing: “All theft

offenses are offenses, but not all offenses are theft

offenses.”

We are taught that conclusions in all

reasoning, including legal reasoning, deductive or

inductive analogy, “derive[ ] their validity from

the axiom known as the dictum de omni et nullo,

which states: “What is true of the universal (or

class) is true of the particular (or subclass).” . . .

The axiom may also be stated as: If every member

28

of a class has (or does not have) a certain

property, and if certain individuals are included in

that class, then these individuals have (or do not

have) a certain property.

Id. at 176 (underlined emphasis added).

With this background in mind, we set forth the following

syllogisms to govern the analysis:

Depriving another of property by fraud or deceit

is an offense (M). (Universal)

The offense of theft by deception deprives another

of property by theft (G). (Particular)

Therefore, the offense of theft by deception is an

offense under (M) and (G).

****

The offense of theft by deception is an offense

under (M) and (G).

A violation of Pennsylvania’s theft by deception

statute, § 3922, is an offense of theft by

deception.

Therefore, a violation of Pennsylvania’s theft by

deception statute, § 3922, is an offense under (M)

and (G).

29

Id. at 177. Applying this framework, we held that

Pennsylvania’s theft by deception statute, which qualified under

subsection (G) as a particular “theft offense,” also came within

the universal (or class) nature of “an offense” bottomed on fraud

or deceit under subsection (M)(i). Following the maxim that

“what is true of the universal (or class) is true for the particular

(or subclass),” we concluded that the INS had to meet the

requirements of subsection (M)(i). Id. at 179 (“Because the

particular Pennsylvania statute is designed entirely on all-

embracing concepts of fraud or deceit . . . it is precisely the

particular type of theft contemplated in the universal class of

offenses set forth in the fraud or deceit Subsection (M)(i). We

therefore apply the axiom . . . what is true of the universal (or

class) is true for the particular (or subclass) in

§ 1101(a)(43)(G).”). See also id. at 180 (Rendell, J. concurring)

(“[O]nly where an offense is a hybrid – as I submit theft by

deception is – and the aggravated felony classifications contain

two distinct, clearly applicable tests, should we conclude that

both must be fulfilled in order for the offense to qualify as an

aggravated felony.”).

The clearest reading of Nugent is that it is restricted to

classificational schemes in which one classification is entirely

a subset of another. Under such circumstances, we infer a

legislative intent to require proof of all the elements of the

universal classification. The logical reasoning on which Nugent

rests, however, cannot support a similar result for separate

universal classifications which intersect, but which have

separate and independent elements. In that situation, which we

have in this case, satisfaction of the separate criteria of either

30

universal classification will suffice to establish the predicate

defined by the classification.

For example, if we were bound in this case by the

proposition that “all forgeries are frauds,” in order to establish

aggravated felony status based upon a predicate forgery

conviction (the particular), the government would have to satisfy

all the elements of the fraud conviction (the universal). Here,

unlike in Nugent where we noted that the term “theft offense”

defined a class that was entirely a subset of the larger class

“offense,” the class “offense related to forgery” is not entirely

a subset of the class “offense involving fraud.” Rather, an

“offense related to forgery” is an independent, universal class

that intersects with the “offense involving fraud” class.

Congress made the intentional decision in subsection (R), as it

did with fourteen different offenses set forth in section

1101(a)(43), to use the broader term “offense.” See id. at 175.

Thus, Nugent’s holding that the universal must be proven if it

subsumes the subclass is inapplicable to this case. Bobb’s

underlying conviction is not a “hybrid offense,” and the

government was entitled to charge him as removable solely

under subsection (M)(i).

C.

Our only remaining question is whether the offense of

conviction qualifies as an aggravated felony under subsection

(M)(i). Bobb was convicted under 18 U.S.C. § 510(a)(2) of

passing, uttering, and publishing a United States Treasury check

in the amount of $13,277 which contained a forged

endorsement. That statute provides as follows:

31

(a) Whoever, with intent to defraud--

(2) passes, utters, or publishes, or attempts to

pass, utter, or publish, any Treasury check or bond

or security of the United States bearing a falsely

made or forged endorsement or signature; . . .

shall be fined under this title or imprisoned not

more than ten years, or both.

18 U.S.C. § 510(a). The Government is required to prove

beyond a reasonable doubt the following four elements to obtain

a conviction under section 510(a)(2): (1) that the defendant

passed or attempted to pass a United States Treasury Check;

(2) that the check bore a forged or falsely made endorsement;

(3) that the defendant passed the check with intent to defraud;

and (4) that the defendant acted knowingly and willfully.

United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997).

Section 510(a)(2) explicitly contains as an element an “intent to

defraud,” which qualifies Bobb’s conviction as a removable

offense under subsection (M)(i). Moreover, Bobb pleaded

guilty to an indictment which confirms that the amount of loss

was greater than $10,000.10 Therefore, Bobb’s conviction

10

Bobb’s indictment stated as follows:

On or about December 18, 1995, in the Eastern

District of Pennsylvania, defendant ALVIN

NETHANIEL BOBB did knowingly and with

intent to defraud, pass, utter, and publish a United

32

satisfied the essential requirements for removability under

subsection (M)(i).

For these reasons, we conclude that the BIA did not err

in holding that Bobb was removable, and we will accordingly

deny his petition for review.

IV.

Congress intentionally used broad language when it

drafted subsections (M)(i) and (R), which precludes a finding

that subsection (R) is the sole vehicle for removing Bobb for an

offense committed under 18 U.S.C. § 510(a)(2). The legislative

history supports the conclusion that Congress intended to

increase the number of crimes which constitute “aggravated

felonies,” not to provide a loophole through which an offense

that could have previously constituted an aggravated felony may

no longer be charged as such. In addition, Bobb’s argument that

he is removable only under subsection (R) has no analogue in

the criminal law context. Finally, Bobb’s offense is not a

“hybrid offense” as set forth in Nugent.

States Treasury check . . . in the amount of

$13,277 dated December 14, 1995 bearing a

falsely made and forged endorsement. In

violation of Title 18, United States Code, Section

510(a)(2).

(App. at 47 (emphasis added).)

33

As a result, we agree with the BIA that Bobb committed

an “aggravated felony” and will accordingly deny Bobb’s

petition for review.

ALDISERT, Circuit Judge, dissenting.

Alvin Bobb entered the United States as a legal

permanent resident in 1991 on the petition of his mother, who is

a United States citizen. His wife is a United States citizen. His

two children—a 15-year-old son and an eight-year-old

daughter—are also both United States citizens. He has been

convicted of one crime: forging a United States treasury check.

He was sentenced to, and has served, four months in prison for

that crime. He concedes that he is removable under INA §

237(a)(2)(A)(i) for having committed a crime of moral

turpitude, but contests the Secretary’s determination that his

crime qualifies as an “aggravated felony.” The consequences of

such a designation are harsh: immediate deportation, ineligibility

for discretionary relief from removal, a 20-year-prohibition on

reentry, and no judicial review. See 8 U.S.C. §§ 1229(b),

1182(a)(9)(A)(ii) & 1252(a)(29)(C).

34

I agree with the majority that not all offenses “relating to

. . . forgery” are “offenses involving fraud or deceit” and

therefore subsection (R) is not a subclass of subsection (M)(i).

Maj. Op. at 17. I also agree with the majority that, in most

circumstances, “the government is required to proceed under a

specific statute only if proceeding under a general statute would

render the specific statute superfluous.” Maj. Op. at 25. This

rule is rooted in the reality that there are often partial

redundancies in federal criminal statutes “both as to the conduct

they proscribe and the individuals they reach,” and prosecutors

are entrusted with the discretion to choose which statute to

apply. United States v. Batchelder, 442 U.S. 113, 124 (1979);

see also id. (“Whether to prosecute and what charge to file or

bring before a grand jury are decisions that generally rest in the

prosecutor’s discretion.”).

In Batchelder, to reuse the majority’s example, the

Supreme Court rejected the argument that a defendant convicted

under one overlapping statute could be imprisoned for more than

the maximum term specified in another overlapping statute. Id.

at 118. The Court determined that each statute, “in conjunction

with its own sentencing provision, operated independently of

one another,” id., and that both could be applied to the same

factual situation unless “the legislative intent to repeal” one of

the statutes is “manifest in the ‘positive repugnancy between the

provisions.’” Id. at 122.

35

My difficulty with the majority’s approach is that 8

U.S.C. § 1101(a)(43) is not a criminal statute and subsections

(R) and (M)(i) do not “operate[] independently” of one another,

nor do they have their “own sentencing provision[s].” See id.

Indeed, subsections (R) and (M)(i) do not independently

proscribe any type of conduct—they simply define what

constitutes an “aggravated felony.” Many cases support the

notion that prosecutors can choose between applicable criminal

and civil statutes, but my research has not uncovered any case

permitting administrative agencies to choose between two

definitions within the same subsection of the same statute.

Moreover, neither the statutory text nor the legislative history

evince any intent by Congress to vest the Secretary with the

discretion to pick and choose between two definitions of the

term “aggravated felony,” applying whichever test is easiest to

satisfy under the facts of the case. Accordingly, I respectfully

dissent.

The starting point for my analysis is the recognition that

prior to the 1996 amendment most forgery offenses over

$10,000 would have qualified under subsection (M)(i). In 1996,

however, Congress amended the aggravated felony

classifications and added subsection (R). See Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-32, § 440(e)(8), 110 Stat. 1214. Subsection (R) specifically

enumerates several offenses, including those relating to

commercial bribery, counterfeiting, trafficking in stolen

vehicles, and forgery. It cannot reasonably be disputed that

36

Bobb’s crime is an “offense relating to [] forgery,” and therefore

falls under subsection (R).

Yet the Government argues, and the majority agrees, that

because subsection (R) is not a subclass of subsection (M)(i),

Congress intended the Secretary to be able to choose between

the two depending upon the facts of each case. I cannot accept

this proposition. Regardless of whether subsection (R) is a

subset of subsection (M)(i), there can be little doubt that

subsection (R) is more specifically applicable to the crime of

forgery than subsection (M)(i). These are not separate criminal

statutes. They are statutory definitions of the term “aggravated

felony.” With few exceptions, Congress appears to have

consciously avoided redundancies in the aggravated felony

classification. In the one case where we found a redundancy, we

held that Congress intended the more specific classification to

apply. See Ki Se Lee v. Ashcroft, 368 F.3d 218, 224 (3d Cir.

2004) (“[I]n enacting subsection (M)(ii), [Congress] intended to

specify tax evasion as the only deportable tax offense; it follows

that it did not intend subsection (M)(i) to cover tax offenses.”).11

11

Although I agree with the majority that Ki Se Lee does

not carry the day for Bobb, it is nonetheless supportive.

Notably, the majority in Ki Se Lee acknowledges that, at least

theoretically, not all instances of tax evasion involve fraud or

deceit, stating, rather cryptically: “We have considered the

government’s contention that there could be a case where a

conviction for tax evasion would not involve fraud or deceit, in

37

In this context, it makes little sense to look to broad

classifications (such as crime of violence or crime involving

fraud or deceit) when Congress has specifically considered the

crime at issue and set forth a particular test.

The Government’s response, which the majority adopts,

is twofold. First, it argues that Congress’ sole intention in

adding subsection (R) was to bring forgery-related crimes not

otherwise covered by subsection (M)(i) (or other aggravated

which case subsection (M)(ii) would exist simply to catch any

cases not covered by subsection (M)(i), but the government has

not identified, and we are unable to envision, what that case

might be.” Id. at 223. Judge, now Justice, Alito, dissented on

this issue, stating:

Neither “fraud” nor “deceit” is mentioned in the

statute as a necessary element of tax evasion. The

statute applies to the willful attempt “in any

manner to evade or defeat any tax imposed by this

title or the payment thereof.” 26 U.S.C. § 7201.

Likewise, leading cases interpreting this language

do not hold that fraud or deceit is an element of

the offense. . . .

Id. at 227 (Alito, J., dissenting) (emphasis omitted). It therefore

appears that the majority in Ki Se Lee accepted that one

classification need not render another wholly superfluous for the

more specific to take precedence.

38

felony classifications) into the aggravated felony rubric.

Second, it contends that any other interpretation would defeat

Congress’ intent to increase the list of aggravated felonies for

which an alien can be deported.” See H.R. Rep. No. 104-22, at

7 (1996).

There is no support for the first proposition. See Ki Se

Lee, 368 F.3d at 224 n.8 (observing that, “[f]or the most part,

[the 1996 additions to the aggravated felony definitions] were

adopted without any discussion of their particular purpose”). It

is unmistakably apparent that the crime of forgery is an “offense

related to forgery,” and I do not agree that the “relating to”

language, which is found throughout § 1101(a)(43), signifies an

exclusive intent to focus on offenses “relating to” forgery that

are not in fact forgeries. Moreover, I do not agree with the

majority that there was no need to revisit the test applicable to

“forgery offenses.” See Maj. Op. at 19-20 (“Congress is

presumed to have understood that ‘forgery offenses’ historically

have had as an essential element an intent to defraud or deceive,

and thus that they fell under subsection (M)(i).”). Although

“forgery offenses” historically have had an intent to defraud or

deceive as an essential element, some modern state statutes do

not, see 36 Am. Jur. 2d Forgery § 26 (noting that fraudulent

intent is an element of most state statutes, although some allow

intent to injure as well), and Congress has indicated that the

federal crime of forgery need not necessarily include as an

element the intent to defraud. See Drakes v. Zimski, 240 F.3d

246, 249 (3d Cir. 2001) (“[I]n Congress’ view, it may well be

39

possible to commit ‘forgery’ without ‘fraud,’ or at least fraud in

the ordinary sense of misrepresentation for material gain.”); see

also 18 U.S.C. § 510(b) (“Whoever, with knowledge that such

Treasury check or bond or security of the United States is stolen

. . ..”) (emphasis added). I therefore cannot accept that it

“makes no sense” for Congress to have established a new test

for all forgery-related crimes.

The Government’s second contention—that Congress

intended to expand the number of aggravated felonies—is

irrelevant. My interpretation does not narrow the number of

aggravated felonies; I simply propose that we apply the test

found in the subsection specifically discussing crimes relating

to forgery. Indeed, by many measures this is an easier test for

the Secretary, as it removes the high minimum loss requirement

and permits removal for relatively short sentences. Moreover,

the legislative history is equally plain that Congress intended the

1996 amendment “to ensure that only the most serious crimes,

or the more serious convictions of lesser crimes, render the alien

deportable.” See H.R. Rep. No. 104-22, at 7 (1996).

Accordingly, that Congress may have intended to increase the

number of aggravated felonies does nothing to help us resolve

whether Bobb’s crime is sufficiently serious to warrant removal.

In sum, I simply cannot escape the commonsense

conclusion that Congress intended subsection (R)—the only

classification that specifically mentions the crime of

forgery—rather than subsection (M)(i), which does not mention

40

it, to apply to the crime of forgery. Moreover, although I

conclude that there is no ambiguity in subsection (R), to the

extent that one might so view it, I would apply the

“‘longstanding principle of construing any lingering ambiguities

in deportation statutes in favor of the alien.’” Ki Se Lee, 368

F.3d at 225 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,

449 (1987)).

Whether this result would constitute an “implied repeal”

of subsection (M)(i), as the Government suggests, is purely a

question of semantics. I am not suggesting that subsection

(M)(i) would not apply if Bobb’s crime were not covered by

subsection (R). What I am suggesting is that, in determining

whether a crime is an aggravated felony, we should—to carry

out Congress’s intent—apply the most analogous aggravated

felony classification, to the extent that there is one.

I would therefore hold that, whatever the practice prior

to 1996, forgery is now a removable offense only if it qualifies

under the test set forth in subsection (R). I find the majority’s

contrary conclusion—that subsection (R) alone should apply to

forgery-related crimes that are not exactly forgery while the

Secretary can pick between the subsections (M)(i) and (R) when

it is a forgery-related crime that is forgery—both

counterintuitive and problematic. Perhaps Gertrude Stein said

it best: “A rose is a rose is a rose.” A forgery is a forgery is a

forgery.

41

***

Accordingly, with utmost deference and respect, I

dissent. I would grant the petition to review and remand to the

BIA with a direction to utilize § 1101(a)(43)(R) in determining

whether Alvin Bobb committed an aggravated offense.12

12

Because I believe that with the adoption of (R), forgery

may no longer be an offense under (M)(i), the teachings of

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), are not

applicable to this case.

42