932 F.3d 704
8th Cir.2019Background
- Cardoza, an El Salvador national present in the U.S. without lawful status, pled guilty in Iowa (2008) to forgery for possessing a false Social Security card; sentenced to two years (suspended) and two years probation.
- In May 2018 ICE arrested Cardoza and DHS issued a Notice of Intent to issue a Final Administrative Removal Order (FARO), asserting removability under 8 U.S.C. § 1227(a)(2)(A)(iii) because the Iowa forgery conviction is an "aggravated felony."
- Cardoza’s counsel timely asked to inspect DHS’s evidence and invoked regulatory authority giving an additional 10 days to respond after receipt; DHS provided the conviction documents but issued the FARO the same day.
- Administrative review continued via a reasonable-fear procedure; an Immigration Judge concurred with the asylum officer that Cardoza lacked a reasonable fear, producing a final order and consolidation of petitions to this court.
- Cardoza challenged (1) that his Iowa forgery conviction is not an aggravated felony under federal law, and (2) that DHS violated due process by issuing the FARO before his response period expired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cardoza's Iowa forgery conviction qualifies as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(R) and thus renders him removable under § 1227(a)(2)(A)(iii) | Cardoza: Iowa forgery does not categorically fit the federal "relating to forgery" definition and thus is not an aggravated felony | DHS: The federal "relating to forgery" language is broad; Cardoza's possession of a forged SS card with intent/facilitation falls within that definition; precedents (including Chavarria-Brito) support classification as an aggravated felony | The court held the Iowa conviction fits within § 1101(a)(43)(R); it is an aggravated felony and supports removal |
| Whether DHS violated due process/statutory regulations by issuing the FARO the same day it provided evidence, depriving Cardoza the 10-day response period | Cardoza: DHS violated 8 U.S.C. § 1228(b)(4)(C) and 8 C.F.R. § 238.1 by issuing the FARO before the regulatory response period expired, causing procedural error | DHS: Procedural misstep, but the underlying conviction unambiguously meets the aggravated-felony definition so any error was harmless | The court found DHS committed a fundamental procedural error (violated the regulation) but Cardoza suffered no prejudice because the conviction unambiguously qualified as an aggravated felony; petition denied |
Key Cases Cited
- Chavarria-Brito v. United States, 526 F.3d 1184 (8th Cir.) (possession of forged documents with intent/knowledge "relates to" forgery for federal purposes)
- Martinez v. Sessions, 893 F.3d 1067 (8th Cir.) (describing categorical approach for determining removable offenses)
- Williams v. Attorney General, 880 F.3d 100 (3d Cir.) (interpreting "relating to" forgery broadly)
- Alvarez v. Lynch, 828 F.3d 288 (4th Cir.) (same; "relating to" construed expansively)
- Descamps v. United States, 570 U.S. 254 (Supreme Court) (discussing categorical/modified-categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (Supreme Court) (categorical approach in immigration context)
- Mathis v. United States, 136 S. Ct. 2243 (Supreme Court) (statute divisibility and the modified categorical approach)
- Ramirez v. Sessions, 902 F.3d 764 (8th Cir.) (requiring fundamental procedural error plus prejudice for due process relief)
- United States v. Figueroa-Alvarez, 795 F.3d 892 (8th Cir.) (state classification as "aggravated misdemeanor" can still count as a felony for federal immigration/sentencing purposes)