The aggravated felony statute includes “an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year.”[716]  The forgery ground therefore requires the following elements:

 

                (1)  a conviction of an offense

                (2)  relating to

                (3)  forgery

                (4)  for which the term of imprisonment is at least one year.

 

This aggravated felony is not defined by reference to a federal statute, and the BIA has yet to adopt a “generic” definition of the offense.  However, the Ninth Circuit, in Morales-Alegria v. Gonzales,[717] examined common-law, state definitions and the Model Penal Code to find that the generic definition of forgery, for aggravated felony purposes, must include “both an intent to defraud and knowledge of the fictitious nature of the [forged] instrument.”[718]

Given the “related to” language,[719] the courts to address this section have read it broadly.  In Richards v. Ashcroft,[720] for example, the Second Circuit held that a Connecticut conviction of possession of a forged document with intent to defraud, deceive, or injure,[721] was “an offense relating to . . . forgery.”  The court noted that there was no specific referenced definition of “forgery,” and looked to common law to find that “[c]ommon 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.”[722]

 

Although recognizing that the common law definition of forgery did not include possession of a forged document, the court found that offense to be “related to” forgery.  “[T]he inclusion of the term ‘relating to’ in subsection (R) necessarily signaled Congress’s intent to cover a range of activities beyond those of counterfeiting or forgery itself, including those activities made illegal in order to discourage counterfeiting or forgery through the criminalization of the use of [their] end product[s].”[723]

 

Without presenting any analysis, the Seventh Circuit has found that a federal conviction for conspiracy to bribe a federal official (factually in order to create and sell forged green-cards) was a forgery offense.[724]  This decision seems wrong in many respects.  For one, the elements of bribery of an official do not in any way involve forgery.  Even if the underlying purpose of the bribery was to obtain materials to be used in making a forged document, it is hard to argue that the elements of the bribery conviction are in any way related to forgery.[725]  The court also (strangely) found that this offense was an aggravated felony fraud offense, and the bulk of the decision involved jurisdictional issues.  Therefore, counsel should argue that the court’s findings related to forgery should be considered dictum.

 

                In some cases, however, it is true that an offense related to forgery may also be considered an aggravated felony fraud offense.[726]

[716] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[717] Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th Cir. Jun. 6, 2006) (California conviction of forgery under California Penal Code § 476 constitutes an “offense relating to ... forgery” under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), for purposes of qualifying as an “aggravated felony” to trigger removal, since it requires knowledge of the fictitious nature of the instrument required to meet the mens rea requirement for the generic aggravated felony definition of an “offense relating to ... forgery”).

[718] Id. at 1056.

[719] See § 16.36, supra.  See, e.g., Bobb v. Att’y Gen. of the United States, 458 F.3d 213 (3d Cir. Aug. 3, 2006) (to constitute aggravated felony “forgery” under INA § 101(a)(43)(R) the offense must be “related to” forgery, i.e., show or establish a logical connection with forgery; 8 U.S.C. § 1101(a)(43)(R), a forgery offense does not necessarily require proof of an intent to defraud; 18 U.S.C. § 510(b) [exchange of forged Treasury instruments] given as example of a forgery offense that is “related to” forgery, but does not involve fraud), following Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001).

[720] Richards v. Ashcroft, 400 F.3d 125 (2d Cir. Mar. 3, 2005).

[721] Conn. Gen. Stat. § 53a-139.

[722] Id. at 128-129, citing United States v. McGovern, 661 F.2d 27, 29 (3d Cir. 1981).

[723] Id. at 192, quoting from Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000), Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir. 2004) (internal quotation marks omitted).

[724] Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (federal conviction of conspiracy to bribe federal officials to provide bogus “green cards” as part of an immigration fraud, for which he received more than $10,000, constituted a fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[725] See Chapter 16, infra.

[726] See, e.g., Bobb v. Att’y Gen. of the United States, 458 F.3d 213 (3d Cir. Aug. 3, 2006) (federal conviction of check forgery, in violation of 18 U.S.C. § 510(a)(2), involving a check in an amount over $10,000 is an aggravated felony fraud offense under INA § 101(a)(43)(M)(i) for immigration purposes).

AGGRAVATED FELONY - FORGERY - DOCUMENT FORGERY
Vizcarra-Ayala v. Mukasey, __ F.3d __, 2008 WL 184954 (9th Cir. Jan. 23, 2008) (California conviction for violation of California Penal Code 475(c) is not categorically an aggravated felony offense "related to" forgery, because the statute encompasses real, unaltered documents, and thus falls outside the generic definition of "forgery" applied to the aggravated felony category).

AGGRAVATED FELONY - FORGERY - DEFINED
Vizcarra-Ayala v. Mukasey, __ F.3d __, 2008 WL 184954 (9th Cir. Jan. 23, 2008) ("an essential element of the generic offense of forgery is the false making or alteration of a document, such that the document is not what it purports to be."; thus the offense of using a genuine instrument with intent to defraud is not "forgery").

Sixth Circuit

AGGRAVATED FELONY - COUNTERFEITING - FORGERY
Nwagbo v. Holder, 571 F.3d 508, 511 (6th Cir. Jul. 13, 2009) (federal conviction of conspiracy to possess counterfeited obligations of the United States with intent to defraud, in violation of 18 U.S.C. 472 ("(1) the false bill passed or possessed is counterfeit, 2) the defendant intended to use the false bill to defraud, and 3) the defendant passed or possessed the false bill."), constituted a conviction for an aggravated felony "offense relating to ... counterfeiting," under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), since "'[s]ection 101(a)(43)(R) [of the INA] necessarily covers a range of activities beyond those of counterfeiting or forgery itself.'").

Eighth Circuit

AGGRAVATED FELONY - FORGERY - POSSESSION OF FORGED DOCUMENTS
United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008) (Iowa conviction for possession of false document required to legally enter, remain, or work in this country with intent to perpetrate fraud or with knowledge that possession was facilitating fraud, in violation of Iowa Code 715A.2(1)(d) and 715A.2(2)(a)(4), was an "offense related to forgery" aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), for purposes of imposing an eight-level sentencing enhancement under USSG 2L1.2(b)(1)(C) for illegal reentry after deportation).

Eleventh Circuit

AGGRAVATED FELONY " FORGERY OFFENSES " POSSESSION OF FORGED DOCUMENTS
United States v. Martinez-Gonzalez, 663 F.3d 1305 (11th Cir. Dec. 6, 2011) (per curiam) (Alabama conviction of possession of forged documents with intent to defraud, in violation of Ala.Code 13A"9"6, constituted an aggravated felony forgery offense, under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), because it was an offense related to forgery); accord, United States v. Chavarria"Brito, 526 F.3d 1184, 1186 (8th Cir. 2008) (conviction for the possession of a false document with the intent to perpetrate a fraud constitutes an aggravated felony under U.S.S.G. 2L1.2(b)(1)(C)); Richards v. Ashcroft, 400 F.3d 125, 130 (2d Cir.2005); Albillo"Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000).