Gabriel Santos Alvarez v. Loretta Lynch , 828 F.3d 288 ( 2016 )

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