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

Gabriel Santos Alvarez, a Bolivian lawful permanent resident, was convicted in Virginia of forgery of a public record (Va. Code § 18.2-168) and previously of embezzlement; DHS charged removability and moved to pretermit his application for cancellation of removal on aggravated-felony grounds.
The BIA and the Immigration Judge concluded Virginia public-record forgery is an aggravated felony under 8 U.S.C. § 1101(a)(43)(R) (an offense “relating to . . . forgery” with a term of imprisonment ≥ 1 year).
Alvarez petitioned for review in the Fourth Circuit, arguing Virginia forgery is broader than the federal (generic) definition of forgery and therefore does not “relate to” federal forgery for purposes of the aggravated-felony provision.
The Fourth Circuit applied the categorical approach: compare the state statute, as interpreted by state courts, to the generic federal definition of forgery (an instrument falsely made or materially altered with intent to defraud such that it affects genuineness of execution).
Virginia courts (Rodriquez, Henry, Brown) distinguish between documents that are invalidly executed (forgery) and genuinely executed documents that merely contain false factual statements (not forgery); the Fourth Circuit concluded Virginia’s line of cases shows the statute targets frauds on document genuineness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Virginia Code § 18.2-168 (forging a public record) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(R) because it “relates to” generic federal forgery	Alvarez: Virginia forgery can cover documents that are genuinely executed but contain false information (i.e., broader than federal forgery), so it does not categorically match federal forgery and thus is not an aggravated felony	Government: The statute criminalizes forgery of public records, which, as interpreted by Virginia courts, targets falsity in the genuineness/authenticity of documents and therefore "relates to" generic federal forgery	The Fourth Circuit held the Virginia statute, as interpreted by state caselaw, categorically matches the federal definition of forgery (false making/material alteration affecting genuineness), so it is an aggravated felony; petition denied.

Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (construing “relating to” language in INA context)
United States v. Jones, 553 F.2d 351 (4th Cir. 1977) (articulating common-law forgery as falsity in genuineness/execution)
Gonzales v. Duenas–Alvarez, 549 U.S. 183 (2007) (realistic probability test for categorical approach)
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (describing categorical approach methodology)
Taylor v. United States, 495 U.S. 575 (1990) (caution against relying on state labels when applying categorical approach)
Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008) (federal circuits’ analysis of generic forgery elements)
Moskal v. United States, 498 U.S. 103 (1990) (distinguishing genuine instruments from forgery)
Gilbert v. United States, 370 U.S. 650 (1962) (false content vs. false execution distinction in forgery)