Gabriel Santos Alvarez v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1599

GABRIEL SANTOS ALVAREZ,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: May 10, 2016 Decided: July 7, 2016

Before DIAZ, FLOYD, and THACKER, Circuit Judges.

Petition for review denied by published opinion. Judge Thacker

wrote the opinion, in which Judge Diaz and Judge Floyd joined.

ARGUED: Brian Ross Murray, Mark Alastair Stevens, MURRAY OSORIO

PLLC, Fairfax, Virginia, for Petitioner. Christina Peterson

Greer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, Civil Division, Terri J. Scadron,

Assistant Director, Meadow W. Platt, Trial Attorney, Office of

Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

THACKER, Circuit Judge:

Gabriel Santos Alvarez (“Petitioner”) seeks review of

a Board of Immigration Appeals (“BIA”) decision finding him

ineligible for cancellation of removal. The BIA reached this

conclusion after determining that Petitioner’s Virginia

conviction for forging a public record pursuant to Virginia Code

Ann. § 18.2-168 (“Virginia forgery”) was an aggravated felony

under the Immigration and Nationality Act (“INA”). See 8 U.S.C.

§ 1101(a)(43)(R) (defining aggravated felony as including “an

offense relating to . . . forgery”). Petitioner challenges this

determination, arguing that Virginia forgery does not “relat[e]

to” the federal generic definition of forgery.

As explained below, we conclude that Virginia forgery

is an aggravated felony under the INA because it is a

categorical match with the federal generic definition of

forgery; therefore, the state and federal forgery crimes

necessarily “relat[e] to” one another. As a result, we deny the

petition for review, and we deny as moot the Government’s

request to remand this case to the BIA.

I.

Petitioner is a citizen of Bolivia and has been a

lawful permanent resident in the United States since October 6,

2002. On January 3, 2012, he was convicted of embezzlement

under Virginia law and sentenced to three years in prison, all

2

suspended. Based on separate and distinct conduct, on January

31, 2014, Petitioner was convicted of forging a public record

pursuant to Virginia Code Ann. § 18.2-168 and assigned another

three-year sentence, with all but seven months suspended.

On August 4, 2014, the Department of Homeland Security

(“DHS”) issued Petitioner a Notice to Appear, charging that

Petitioner was eligible for removal from the United States

because he had been convicted of two crimes involving moral

turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). 1 At Petitioner’s

September 10, 2014 removal hearing, DHS filed an additional

charge of removability under 8 U.S.C. § 1227(a)(2)(A)(iii),

claiming Petitioner was an alien convicted of an aggravated

felony -- specifically, an offense “relating to” forgery. Id.

§ 1101(a)(43)(R).

Petitioner filed an application for cancellation of

removal, and DHS filed a motion to pretermit Petitioner’s

application, contending the aggravated felony conviction

rendered Petitioner ineligible for this relief. 2 On October 23,

1

“Any alien who at any time after admission is convicted

of two or more crimes involving moral turpitude, not arising out

of a single scheme of criminal misconduct, regardless of whether

confined therefor and regardless of whether the convictions were

in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).

2

“The Attorney General may cancel removal in the case of

an alien who is inadmissible or deportable from the United

(Continued)

3

2014, the immigration judge (“IJ”) issued a written decision

sustaining both charges of removability and granting DHS’s

motion to pretermit Petitioner’s application. The IJ concluded

that although Virginia forgery is “slightly broader” than

generic federal forgery, it is nonetheless an “offense[]

‘relating to’” forgery. A.R. 93-94 (quoting 8 U.S.C.

§ 1101(a)(43)(R)). 3 Petitioner appealed to the BIA, and a single

BIA judge agreed with the IJ and dismissed the appeal.

Petitioner filed a timely petition for review with this court on

June 4, 2015.

On October 6, 2015, the Government filed a motion to

remand based on the Supreme Court’s June 1, 2015 decision in

Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (construing the phrase

“relating to” in another INA provision). We denied the motion.

See Order Den. Mot. to Remand, Santos Alvarez v. Lynch, No. 15-

1599 (4th Cir. Oct. 27, 2015), ECF No. 22. On December 18,

2015, Petitioner filed an unopposed motion for stay of removal,

which this court granted. See Order Granting Stay of Removal,

States if the alien . . . has not been convicted of any

aggravated felony.” 8 U.S.C. § 1229b(a)(3).

3

Citations to the “A.R.” refer to the Administrative

Record filed by the parties in this matter.

4

Santos Alvarez v. Lynch, No. 15-1599 (4th Cir. Dec. 29, 2015),

ECF No. 32.

II.

We possess jurisdiction over the legal question of

whether a crime qualifies as an “aggravated felony.” See 8

U.S.C. § 1252(a)(2)(D); Espinal-Andrades v. Holder, 777 F.3d

163, 166 (4th Cir. 2015). “Although we generally defer to the

BIA’s interpretations of the INA, where, as here, the BIA

construes statutes and state law over which it has no particular

expertise, its interpretations are not entitled to deference.”

Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)

(alterations and internal quotation marks omitted). We thus

review the pure legal issue in this case de novo. See Espinal-

Andrades, 777 F.3d at 166; see also Vizcarra-Ayala v. Mukasey,

514 F.3d 870, 873 (9th Cir. 2008) (reviewing de novo the issue

of whether California forgery is an aggravated felony).

III.

In this case, we are asked to decide whether a

Virginia conviction for forgery of a public record is an

aggravated felony under the INA, which is defined as “an offense

relating to . . . forgery . . . for which the term of

imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(R).

If it is not, then Petitioner may be eligible for cancellation

5

of removal. 4 Petitioner argues that Virginia forgery is so broad

that it does not even “relat[e] to” federal forgery; therefore,

it is not an aggravated felony.

A.

In determining whether Virginia’s statute is an

aggravated felony, we employ the categorical approach. See

Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015); Omargharib v.

Holder, 775 F.3d 192, 196 (4th Cir. 2014). Under the

categorical approach, “we look not to the facts of the

particular prior case, but instead to whether the state statute

defining the crime of conviction categorically fits within the

generic federal definition of a corresponding aggravated

felony.” United States v. Lopez-Collazo, --- F.3d ---, 2016 WL

3080431, at *7 (4th Cir. June 1, 2016) (quoting Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684 (2013)). The federal definition

“must be viewed in the abstract, to see whether the state

statute shares the nature of the federal offense that serves as

a point of comparison.” Hernandez-Zavala v. Lynch, 806 F.3d

259, 264 (4th Cir. 2015).

A generic federal offense and a state offense

“categorical[ly] match” “only if a conviction of the state

4 Petitioner does not challenge the BIA’s conclusion that he

is eligible to be removed from the United States.

6

offense necessarily involved facts equating to the generic

federal offense.” Amos v. Lynch, 790 F.3d 512, 518 (4th Cir.

2015) (internal quotation marks omitted). This issue is not

settled simply because Virginia categorizes the statute at issue

as “forgery.” See Taylor v. United States, 495 U.S. 575, 590

(1990) (in applying categorical approach, cautioning against

“depend[ing] on the definition adopted by the State of

conviction”).

We note that subsection (R) of § 1101(a)(43) is one of

the many aggravated felonies the INA defines “expansive[ly]” as

merely “relating to” a generic federal crime, in contrast to

others defined as “match[ing] . . . the comparable federal

crime.” Denis v. Attorney Gen. of U.S., 633 F.3d 201, 207 (3d

Cir. 2011). Normally, then, under the more expansive

definition, the fact that the offenses “do not precisely ‘match’

each other is not determinative.” Id. In this case, however,

we conclude that the offenses match; therefore, the two statutes

necessarily relate to each other.

1.

Generic Federal Forgery

We first identify the federal generic meaning of

forgery, as it is used in the INA.

The INA does not define “forgery,” nor has the BIA.

This court’s decision in United States v. Jones, however, is

7

instructive. See 553 F.2d 351 (4th Cir. 1977). In Jones,

Michael Everston, a supervisor at Inglis, Ltd., directed an

accounts payable clerk to alter vendor numbers in a computer

system so that checks supposed to be paid to a vendor were

instead issued to Everston’s cohort, defendant Amy Jones, who

then deposited the checks in her own account. See id. at 354.

This court considered whether, under 18 U.S.C. § 2314, “the

alteration of accounts payable documents fed into a computer

which resulted in the issuance of checks payable to an improper

payee” constituted forgery. Id. 5

In its analysis, this court cited with approval the

Sixth Circuit’s common law definition of forgery: “the false

making or materially altering, with intent to defraud, of any

writing, which, if genuine, might apparently be of legal

efficacy or the foundation of a legal liability,” Jones, 553

F.2d at 355 (quoting Carr v. United States, 278 F.2d 702, 703

(6th Cir. 1960)), which matches “other circuits’ analyses of the

generic offense,” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874

(9th Cir. 2008). See, e.g., Vizcarra-Ayala, 514 F.3d at 874;

United States v. McGovern, 661 F.2d 27, 29 (3d Cir. 1981)

5Section 2314 prohibits transportation of fraudulent

securities, but excludes “any . . . forged . . . representation

of an obligation or other security of the United States.” 18

U.S.C. § 2314. Jones argued the checks issued were forgeries

and therefore excluded from the scope of § 2314.

8

(“Common law forgery has three elements: (a) The false making or

material alteration (b) with intent to defraud (c) of a writing

which, if genuine, might be of legal efficacy.”); see also Model

Penal Code § 224.1(1)(b) (ALI 2015) (“A person is guilty of

forgery if, with purpose to defraud . . . the actor . . . makes,

completes, executes, authenticates, issues or transfers any

writing so that it purports to be the act of another who did not

authorize that act.”).

Because the parties here dispute the breadth of the

“false making” element, we focus on that aspect of the common

law definition. In Jones, we recognized that, at common law, a

“false making” did not include “the creation of a writing which

was genuine in execution but false as to the statements of fact

contained in such writing.” Jones, 553 F.2d at 355 (footnote

omitted). In other words, with regard to a “false making,” the

common law term “forged” “relate[d] to genuineness of execution

and not falsity of content.” Id. (quoting Marteney v. United

States, 216 F.2d 760, 763 (10th Cir. 1954)).

Following this logic, we held that the checks Jones

deposited into her account were not forgeries because they were

“genuine instrument[s] containing a false statement of fact as

to the true creditor.” Jones, 553 F.2d at 355 (emphases

omitted). Other decisions and treatises reflect the same

distinction: forged documents or instruments must be invalid or

9

falsely executed; mere falsities present in or on the document

or instrument will not suffice. See, e.g., Moskal v. United

States, 498 U.S. 103, 109 (1990) (suggesting that the term

“forged” in 18 U.S.C. § 2314 is not broad enough to encompass a

“security that is genuine or valid” (internal quotation marks

omitted)); Gilbert v. United States, 370 U.S. 650, 658 (1962)

(explaining, “Where the falsity lies in the representation of

facts, not in the genuineness of execution, it is not forgery”

(internal quotation marks omitted)); 37 C.J.S. Forgery § 8

(“Forgery cannot be committed by the making of a genuine

instrument, although the statements made therein are untrue.”);

3 Wayne LaFave, Subst. Crim. L. § 19.7(j)(5) (2d ed.) (“Though a

forgery, like false pretenses, requires a lie, it must be a lie

about the document itself: the lie must relate to the

genuineness of the document.” (footnotes omitted)).

Therefore, one commits generic federal forgery only

where a document is invalid or falsely executed. If the

document is genuinely executed but merely contains false

information, a conviction for federal forgery cannot lie.

2.

Virginia Public Records Forgery

We now turn to the Virginia statute, which provides:

If any person forge a public record, or

certificate, return, or attestation, of any

public officer or public employee, in

10

relation to any matter wherein such

certificate, return, or attestation may be

received as legal proof, or utter, or

attempt to employ as true, such forged

record, certificate, return, or attestation,

knowing the same to be forged, he shall be

guilty of a Class 4 felony.

Va. Code Ann. § 18.2-168 (emphasis supplied). The statute does

not define “forge,” but Virginia courts have defined forgery

using the same definition set forth in Jones: “the false making

or materially altering with intent to defraud, of any writing

which, if genuine, might apparently be of legal efficacy, or the

foundation of legal liability.” Henry v. Commonwealth, 753

S.E.2d 868, 871-72 (Va. Ct. App. 2014) (internal quotation marks

omitted); see also Brown v. Commonwealth, 692 S.E.2d 271, 276

(Va. Ct. App. 2010). 6

And, as under federal law, “[w]here the ‘falsity lies

in the representation of facts, not in the genuineness of

6The statute under which Petitioner was convicted includes

two offenses: forging a public document and uttering said

document. Under Virginia law and federal common law, these are

separate and distinct offenses. See Goodwin v. Commonwealth,

767 S.E.2d 741, 744 (Va. Ct. App. 2015) (“Code § 18.2–168 . . .

prohibits two distinct offenses: forging a public record and

uttering, or attempting to employ as true, the forged record.”);

37 C.J.S. Forgery § 1 (“At common law, and under some statutes,

forgery and the uttering or passing of forged instruments are

distinct and separate offenses, in which case neither is

included within the other.” (footnotes omitted)). Because

Petitioner himself submits that he “was convicted of forging a

public record” under section 18.2-168, we need only concern

ourselves with the forgery aspect of the statute. Pet’r’s Br.

2.

11

execution, it is not forgery.’” Henry, 753 S.E.2d at 871

(quoting Gilbert, 370 U.S. at 658) (alteration in original).

Indeed, to prove forgery of a public record in Virginia, the

Commonwealth must demonstrate that the defendant’s conduct

“altered the genuineness and authenticity of th[e] [allegedly

forged] document[], making [it] not in fact what [it] purport[s]

to be.” Id. at 872 (emphasis in original).

3.

Categorical Approach

We now determine whether the Virginia statute

“categorically fits within the generic federal definition” of

forgery, Hernandez-Zavala, 806 F.3d at 264 (internal quotation

marks omitted), or whether it “‘sweeps more broadly’ and

criminalizes more conduct than the generic federal crime,” Mena

v. Lynch, 820 F.3d 114, 117 (4th Cir. 2016). In so doing, we

assess whether there is “a realistic probability, not a

theoretical possibility, that [Virginia] would apply its statute

to conduct that falls outside the generic definition of a

crime.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007).

Petitioner believes Virginia forgery sweeps more

broadly than federal forgery because a Virginia forgery

conviction “can be sustained where the document in question is

genuine but merely contains some false information, which is not

12

a true ‘false making’ under Fourth Circuit precedent.” Pet’r’s

Br. 6.

The Government inexplicably ignored these arguments in

its response brief, preferring instead to reiterate previously-

rejected arguments in favor of remand. Although such an

outright failure to join in the adversarial process would

ordinarily result in waiver, see Citizens for Appropriate Rural

Roads v. Foxx, 815 F.3d 1068, 1078 (7th Cir. 2016) (“Failure to

respond to an argument results in waiver.” (quoting Bonte v.

U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010))), two

factors militate against that result in this case. First,

because resolution of this case ultimately turns on a question

of statutory interpretation, we are constrained to consider

whether Virginia public record forgery and federal generic

forgery are a categorical match. Second, the Government finally

got around to addressing the merits in a letter purportedly

filed pursuant to Federal Rule of Appellate Procedure 28(j), to

which we granted Petitioner leave to respond. 7

7

Federal Rule of Appellate Procedure 28(j) provides, “If

pertinent and significant authorities come to a party’s

attention after the party’s brief has been filed . . . a party

may promptly advise the circuit clerk by letter, with a copy to

all other parties, setting forth the citations.” Fed. R. App.

Proc. 28(j) (emphasis supplied). We have made crystal clear

“[w]e do not countenance a litigant’s use of Rule 28(j) as a

means to advance new arguments couched as supplemental

authorities.” United States v. Ashford, 718 F.3d 377, 381 (4th

(Continued)

13

a.

Petitioner relies on a single Virginia Court of

Appeals decision in support of his argument that, with regard to

the “false making” aspect of forgery, Virginia forgery sweeps

more broadly than the federal generic definition: Rodriquez v.

Commonwealth, 653 S.E.2d 296, 298 (Va. Ct. App. 2007). In

Rodriquez, police stopped the defendant, Ivan Rodriquez, because

his registration plate had expired, and subsequently learned he

did not have a driver’s license. See id. Upon being questioned

by the officer, Rodriquez verbally provided his brother’s

identifying information rather than his own, and the officer

used that false information to prepare two traffic summonses in

the name of Osvaldo Rodriquez. See id. The officer “handed the

summonses to [Ivan] Rodriquez, and Rodriquez signed them, using

his own name [although] the signature . . . was illegible.” Id.

Rodriquez was convicted of violating a prior but materially

indistinguishable version of Virginia Code Ann. § 18.2-168. On

appeal, he argued he did not “falsely make” the writing because

the officer prepared and wrote the summonses. Id.

Cir. 2013); see also United States v. Washington, 743 F.3d 938,

941 n.1 (4th Cir. 2014). Here, the Government was fortunate,

but circumstances may not be as favorable the next time the

Government “creates the risk of an improvident or ill-advised

opinion being issued on an unbriefed issue.” United States v.

Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006).

14

The Virginia Court of Appeals disagreed, holding

Rodriquez’s conduct was sufficient to constitute a “false

making” under Virginia law, because “he provided the information

to [the officer] as he created the documents and, in doing so,

Rodriquez engaged in the ‘false making’ of the two public

documents.” Rodriquez, 653 S.E.2d at 298. Crucially, the court

found relevant the fact that Rodriquez “sign[ed] [his] own name

with the intent that the writing be received as written by

another person . . . or sign[ed] in such a way as to make the

writing purport to be that of another,” which are both “acts of

forgery.” Id. at 299 (quoting United States v. Price, 655 F.2d

958, 960 (9th Cir. 1981)). The court relied on generic common

law forgery principles in explaining, “a person may be guilty of

making a false instrument, although he or she signs and executes

it in his or her own name, if it is false in any material part

and calculated to induce another to give credit to it as genuine

and authentic when the instrument is not in fact what it

purports to be.” Id. (quoting 36 Am. Jur. 2d Forgery § 10

(2001)).

Relying on Rodriquez, the IJ determined “creating a

writing that is ‘genuine in execution but false as to the

statements of fact contained’ in it is punishable by the

Virginia statute, but falls outside the scope of the generic,

common law definition of ‘forgery.’” A.R. 93 (quoting Jones,

15

553 F.2d at 355). In its ruling, the IJ relied on the premise

that Rodriquez involved a document that was “genuine in

execution.” But this premise is false. The IJ failed to

recognize that Rodriquez himself executed the summonses with a

misleading signature that did not match the name of the person

named in those documents. Indeed, the Rodriquez court itself

noted that the summonses as executed were “entirely fraudulent,”

“not authentic,” and “lies.” Rodriquez, 653 S.E.2d at 299 n.2.

In other words, Rodriquez’s conduct resulted in fraudulently

executed documents, not merely inaccurate ones.

Later Virginia decisions make clear that Rodriquez did

not broaden Virginia bribery beyond the scope of the federal

definition of the offense. For example, in Henry v.

Commonwealth, the Virginia Court of Appeals reversed the forgery

conviction of William Henry, who provided false statements to a

court clerk about his financial status in order to obtain

indigent legal services. See 753 S.E.2d at 870. Once the clerk

recorded this false information on a form application, Henry

signed and dated the form. See id.

As the court explained, the form was not forged

because the Commonwealth did not prove that Henry’s conduct

“altered the genuineness and authenticity of those documents.”

Henry, 753 S.E.2d at 872. The court distinguished Rodriquez,

explaining, “in Rodriquez, this Court held that the summonses

16

were forged because the false identifying information that

Rodriquez provided in their making transformed them into

something other than what they purported to be -- the documents

purported to be summonses for Rodriquez but were forged to be

summonses for Rodriquez’s brother.” Id. at 872-73. In

contrast, the form containing Henry’s financial information was

what it purported to be -- Henry’s application for indigent

legal services; it “merely contained a false statement of fact.”

Id. at 873 (alterations and internal quotation marks omitted).

Similarly, in Brown v. Commonwealth, the Virginia

Court of Appeals reversed Kaipha Brown’s conviction for uttering

a forged instrument. See 692 S.E.2d at 272. Brown, an

erstwhile United Airlines employee, engaged in a scheme whereby

he exploited a “loophole” in United’s reservation system. Id.

at 273. He would make a reservation on an overbooked flight

without payment, volunteer to be “bumped” from the flight in

exchange for a voucher, leave the airport with the voucher, and

exchange the voucher for an airline ticket. Id.

The Virginia court concluded the vouchers were not

forged instruments because “the Commonwealth failed to establish

that the vouchers presented by Brown were either falsely made or

materially altered in any way.” Brown, 692 S.E.2d at 276.

Rather, “nothing in the record suggests that the vouchers were

anything other than what they purported to be.” Id. The court

17

also distinguished Rodriquez, explaining that because of

Rodriquez’s conduct, the documents at issue in that case

“purported to be summonses issued to the defendant’s brother for

traffic infractions. In fact, the summonses were intended for

the defendant.” Id.

In sum, the Virginia courts have drawn a distinction

between fraud that results in an invalid document that is not

actually what it purports to be (forgery), and a genuine

document that contains false information or is used in a

fraudulent manner (not forgery).

b.

In light of this background, Petitioner has given us

no reason to conclude that Virginia “would apply its statute to

conduct that falls outside the generic definition” of forgery.

Duenas–Alvarez, 549 U.S. at 193. Contrary to Petitioner’s

argument, as explained by Rodriquez, Henry, and Brown, Virginia

does not treat genuine documents containing false statements as

forged documents. Thus, the way in which the Virginia courts

have defined “forgery” “fits within the ‘generic’ federal

definition” of forgery, and “the state statute shares the nature

of the federal offense.” Hernandez-Zavala, 806 F.3d at 264.

18

Virginia forgery and federal generic forgery, therefore,

“categorically match.” Id. 8

B.

Conclusion

Virginia forgery as set forth in Virginia Code Ann.

§18.2-168 is categorically “forgery” under the INA; therefore,

Virginia forgery necessarily relates to forgery under the

aggravated felony provision, as the IJ and BIA determined.

Because of this, we conclude that Virginia public record forgery

is an aggravated felony, and the Government’s renewed request to

remand in light of Mellouli is denied as moot.

IV.

For the foregoing reasons, the petition for review is

denied, and the Government’s renewed request to remand is denied

as moot.

PETITION FOR REVIEW DENIED

8 Petitioner raises two other arguments regarding the

breadth of Virginia forgery that were presented to the IJ and

BIA but not discussed in those decisions: Virginia forgery does

not require prejudice to another’s rights, but federal forgery

does, see Pet’r’s Br. 18; and Virginia forgery does not require

a defendant to act intentionally, but only knowingly, see id.

We find both of these contentions to be without merit.

19