Criminal Defense of Immigrants

 

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).