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Bobb v. Attorney General of the United States

August 3, 2006

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.

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued June 13, 2006

Before: FISHER, ALDISERT and LOURIE,*fn1 Circuit Judges.

OPINION OF THE COURT

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 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 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*fn2 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 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 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)].*fn3 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:

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.*fn4 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 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).*fn5

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.

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 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, 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.*fn6 We are not dealing here, however, with a 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 ...


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