Alvin BOBB, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
No. 05-2891.
United States Court of Appeals, Third Circuit.
Filed Aug. 3, 2006.
Argued June 13, 2006.
458 F.3d 213
The District Court correctly instructed the jury that the mere presence of a gun during commission of a crime is not enough for conviction, and that instead, “[i]t is sufficient [for conviction] if the proof established that the firearm furthered the commission of the crime or was an integral part of the underlying crime being committed.”4 By specifying that the gun must have “furthered” or been “integral” to the underlying crime, the instruction adequately conveyed that possession of a gun while committing a crime is not, in itself, enough for conviction under
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
Steven A. Morley (Argued), Morley, Surin & Griffin, Philadelphia, PA, for Petitioner.
Viveca D. Parker (Argued), Office of United States Attorney, Philadelphia, PA, for Respondent.
Before FISHER, ALDISERT and LOURIE,* Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
Petitioner Alvin Bobb, a lawful permanent resident, pleaded guilty to forging a check in the amount of $13,277, in violation of
Our task is to determine whether Bobb‘s conviction was an “aggravated felony.” In
This appeal asks us to decide which “aggravated felony” definition applies to Bobb‘s case—the “related to forgery” provision of subsection (R), the broad catch-all “fraud” provision of subsection (M)(i), or both. For the reasons set forth below, we conclude that the BIA did not err in determining that Bobb‘s underlying criminal conviction was an “aggravated felony” under subsection (M)(i), and that Bobb‘s conviction was not a “hybrid offense” under Nugent. Accordingly, we will deny Bobb‘s petition for review.
I.
Bobb is a native and citizen of Trinidad and Tobago who entered the United States as a lawful permanent resident on September 30, 1991. On December 18, 1995, Bobb forged a United States Treasury check in the amount of $13,277. He was subsequently charged with forging endorsements on treasury checks, in violation of
On December 14, 1999, the INS1 issued Bobb a Notice to Appear, charging that he was subject to removal from the United States for committing an aggravated felony as defined under
At Bobb‘s initial bond hearing, an IJ concluded that Bobb‘s offense was not an aggravated felony and that he therefore qualified for bond. (App.33-37.) The IJ, noting that Congress had to have been aware when it enacted subsection (R) that “forgery is always fraud,” determined that including all forgery offenses in subsection (M)(i) would render subsection (R) surplusage unless Congress manifested a clear intention to have the general “fraud” provision govern over the specific “forgery” section. As a result, the IJ granted Bobb bond in the amount of $1,500.00, a decision which the BIA affirmed over the government‘s appeal. (App.37-38.)
Following his release on bond, Bobb sought to terminate his removal proceedings in order to apply for a readjustment of status. As a lawful permanent resident married to a United States citizen, Bobb is eligible to petition BICE for a discretionary readjustment of status unless, inter alia, it is determined that he has committed an “aggravated felony.” See
A second IJ conducted removability proceedings and considered the motions. The IJ noted that the prior determination at the bond hearing that Bobb‘s conviction was not an aggravated felony was not controlling in the removability proceedings. See
The fraud section of the INA deals with offenses involving fraud or deceit where the loss to the victim(s) is greater than $10,000. The “forgery section” is actually not a section limited to forgery offenses (a subset of fraud), but instead includes a variety of organized crime relating to immigration, and further requires one year imprisonment. One section, INA § 101(a)(43)(M)(i) was enacted to deport individuals engaging in deceptive conduct causing great loss of money, and the other section, INA § 101(a)(43)(R), was enacted to deport those whose crimes were serious enough to merit one year of imprisonment.
(App.59.) The decision finding that Bobb‘s underlying offense was an aggravated felony resolved both pending motions, and it barred Bobb from receiving a discretionary readjustment of status.3 On January 24, 2004, the BIA affirmed without opinion. (App.63.)
II.
On June 24, 2004, Bobb filed a petition for writ of habeas corpus in the United States District Court. While that petition remained pending, Congress passed the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. Pursuant to the terms of that Act, we convert Bobb‘s habeas petition into a petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005).
We have jurisdiction over Bobb‘s petition for review under
At the outset, it is helpful to identify the parties’ competing arguments. Bobb contends that we should read subsection (M)(i) to encompass all fraud or deceit not otherwise specified in
Our task is twofold: first, we must determine whether Congress intended that forgery-related convictions constitute aggravated felonies only under subsection (R); and second, whether, in the alternative, Bobb‘s offense is a “hybrid offense” that requires the government to meet all the requirements of both subsections (M)(i) and (R) in order to remove Bobb.
A.
We begin by examining whether Congress intended subsection (R) to be the sole avenue for a forgery-related conviction to constitute an aggravated felony. Relying on the principle of statutory construction that a specific statutory provision controls a general provision, Bobb argues that his forgery-related conviction can only constitute an aggravated felony under subsection (R), not subsection (M)(i). This argument, however, is misplaced. The government had the discretion to charge Bobb with an aggravated felony under either or both subsections for three primary reasons. First, the broad language used by Congress in both subsections precludes a finding that subsection (R) removed all forgery convictions from the ambit of subsection (M)(i). Second, the legislative history is clear that Congress’ intent in enacting subsection (R) was to increase the number of “aggravated felonies,” not to provide a loophole through which an offense that would otherwise have constituted an “aggravated felony” would escape that classification. Finally, a conclusion that the INS cannot bring removal proceedings under both subsections has no analogue in the criminal context, in which courts have recognized prosecutorial discretion to bring charges when particular statutes overlap. We will examine each of these points in turn.
1.
Bobb, heeding the familiar canon of statutory construction that a specific statutory provision controls a general provision when the two provisions cover the same factual context, contends that subsection (R) trumps subsection (M)(i) and is the exclusive avenue to bring removability proceedings for forgery-related convictions. Bobb asserts that subsection (R) would be superfluous if aliens chargeable under subsection (R) were always also chargeable under subsection (M)(i).
Although Bobb‘s argument is somewhat inviting, it ultimately fails because subsections (M)(i) and (R) were both drafted broadly by Congress. On previous occasions, we have had the opportunity to interpret the scope of both subsections. In Valansi v. Ashcroft, 278 F.3d 203 (3d Cir.2002), we determined that Congress intended subsection (M)(i) to have a broad scope because that provision refers to an offense that “involves fraud or deceit” and which results in losses greater than $10,000. Id. at 209-10. As a result, we held that subsection (M)(i) covers all offenses that have as an essential element an intent to defraud or deceive. Id. at 210. See Ki Se Lee, 368 F.3d at 222 (“Subsection (M)(i) has a general application—the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000.“).
We considered the scope of subsection (R) in Drakes v. Zimski, 240 F.3d 246 (3d Cir.2001). There, the petitioner was convicted in Delaware of second-degree forgery, which had as an essential element an intent to deceive. The petitioner argued that his conviction did not constitute an “aggravated felony” because Congress intended the federal definition of “forgery” to extend only to crimes involving an intent to defraud. We noted that the term “forgery” under federal law was ambiguous, and that there was a split among the states as to whether forgery necessarily included an intent to defraud. A minority of states, including Delaware, had held that forgery could also be premised on an intent to deceive. Id. Relying upon the conflicting interpretations among the different states, we rejected the petitioner‘s argument and held that Congress intended to define forgery in its broadest sense by using the language “relating to ... forgery” in subsection (R). We concluded that “[t]he Delaware forgery statute, while apparently encompassing more conduct than is encompassed by traditional definition of forgery, is ‘related to’ forgery in a way that several states have made part of their criminal codes.” Id. at 250. For this reason, we determined that it was appropriate for the BIA to read the “broad minority definition” into Subsection (R) rather than the “narrow traditional definition.” Id.
The broad construction we have given to subsections (M)(i) and (R) rebuts Bobb‘s argument that all forgery convictions are necessarily governed by subsection (R) rather than subsection (M)(i). Perhaps if subsection (R) had been drafted differently—for example, if it had used the language “forgery offense” instead of “related to ... forgery“—then Bobb‘s argument would have merit. At their core, all common law forgery offenses contain as an element an intent to defraud or deceive.5 We are not dealing here, however, with a straightforward forgery offense because Congress drafted subsection (R) more expansively, including offenses “related to ... forgery.” The term “relate” means “to show or establish a logical or causal connection between.” Webster‘s Third New International Dictionary (Unabridged) 1916 (1991). Subsection (R) thus encompasses conduct beyond the traditional definition of forgery, and includes criminal conduct that is causally connected to forgery, but may lack as an essential element an intent to defraud or deceive.
(b) Whoever, with knowledge that such Treasury check or bond or security of the United States is stolen or bears a falsely made or forged endorsement or signature buys, sells, exchanges, receives, delivers, retains, or conceals any such Treasury check or bond or security of the United States shall be fined under this title or imprisoned not more than ten years, or both.
This case, however, is different from Lee primarily because, as demonstrated above, there exist offenses “related to” forgery which do not contain as an essential element an intent to defraud or deceive. Unlike subsection (M)(ii), subsection (R) does not define offenses that would otherwise fall entirely within (M)(i): the language of subsection (R) is much broader than that of subsection (M)(ii), and unlike (R), (M)(ii) was listed in the same subsection as (M)(i), the general fraud aggravated felony. The fact that there are numerous federal and state statutes “related to” forgery that do not have as an essential element an intent to defraud or deceive shows that subsection (R) is not a subset of subsection (M)(i). While there are offenses that fall under subsection (R) but not subsection (M)(i), section 510(a)(2) offenses are not among them.
The legislative history of subsection (R) also supports the IJ‘s determination. Subsection (R) was enacted in order to increase the number of “aggravated felonies” that could be charged as removable offenses. Subsection (R) was added to
One of the steps the Committee recommends to accomplish the ... goal [of strengthening the government‘s ability to efficiently deport aliens who are convicted of serious crimes] is to add several crimes to the definition of “aggravated felony.” Aliens who commit aggravated felonies can be deported from the United States when they complete their incarceration. Many of the crimes added to this list are those often committed by persons involved in organized immigration crime. The crimes added to this definition include: certain gambling offenses; crimes involving transportation of person[s] for the purpose of prostitution; alien smuggling; counterfeiting, forging, or trafficking in immigration and other documents; and trafficking in stolen vehicles.
In adding crimes to the list, effort was made to ensure that the overall reach of the definition would be consistent with the sentencing guidelines established by the United States Sentencing Commission. With only certain limited exceptions, the Committee attempted to ensure that all of the crimes defined as aggravated felonies carry a base offense level of at least 12. These minimums have been selected to ensure that only the most serious crimes, or the more serious convictions of lesser crimes, render the alien deportable.
An additional reason for finding that the INS could proceed under either subsection (M)(i) or (R) is that Bobb‘s argument—that because he may be removed solely under subsection (R) he therefore cannot be removed under subsection (M)(i)—has no analogue in criminal law. It is not uncommon that federal criminal statutes partially overlap, permitting prosecutors to bring criminal charges under either one section or the other. As the Supreme Court recognized, there are sometimes partial redundancies in federal criminal statutes “both as to the conduct they proscribe and the individuals they reach.” United States v. Batchelder, 442 U.S. 114, 118, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). In Batchelder, the Court rejected the argument that a defendant convicted under one overlapping statute could be imprisoned to no more than the maximum term specified under another overlapping statute.9 Id. at 118, 99 S.Ct. 2198. In so doing, the Court determined that each statute, “in conjunction with its own sentencing provision, operates independently of the other.” Id. The Court explained that it was “not enough to show that the two statutes produced differing results when applied to the same factual situation ... [r]ather, the legislative intent to repeal [one of the statutes] must be manifest in the ‘positive repugnancy between the provisions.‘” Id. at 122, 99 S.Ct. 2198 (citations omitted). The Court found that the differing penalty provisions were “fully capable of coexisting because they apply to convictions under different statutes.” Id. Applying the longstanding principle that “when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants,” the Court upheld the defendant‘s conviction and sentence. Id. at 123-26, 99 S.Ct. 2198. See Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956) (upholding the defendant‘s felony conviction when misdemeanor tax evasion statute would have proscribed identical conduct and imposed a lesser penalty), superseded by statute on other grounds as stated in Sansone v. United States, 380 U.S. 343, 350 n. 6, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).
Similarly, this Court recognized in United States v. Williams, 850 F.2d 142 (3d Cir.1988), the possibility that a defendant could be prosecuted for the same conduct under either
[T]here are differences between the subsections though undoubtedly their provisions overlap. Thus,
18 U.S.C. § 510(b) deals with validly endorsed or unendorsed instruments and section 510(a)(2) does not. On the other hand the latter but not the former section mentions attempts. In any event if the subsections are to be mutually exclusive, though we see no reason why they should be, Congress will have to rewrite them as we cannot....[T]he principle novelties in
18 U.S.C. § 510 were in subsection (b), which closed the loophole in section 495 in favor of the thief who stole an endorsedcheck or sold the check without endorsing it, and in subsection (c) which deals with penalties. Thus in subsection (b) Congress added a provision without a comparable antecedent in section 495. But at the same time it enacted section 510(a)(2) which traversed ground already covered by section 495. In the circumstances it is not surprising that there is duplication. Indeed, ... 18 U.S.C. § 510 itself partially repeats provisions from section 495.
Id. Similar considerations in the present case support a conclusion that Congress did not intend that Bobb could only be charged as removable under subsection (R).
The cases cited by Bobb for the proposition that the specific statutory provision trumps the general provision all dealt with statutes that were coextensive with one another, or where Congressional intent was clear that a specific provision trumped a general one. For example, the Supreme Court held in Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), superseded by statute on other grounds as stated in United States v. Gonzales, 520 U.S. 1, 10, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997), that the defendant could not be sentenced under the statutory enhancement provision in
Similarly, in United States v. LaPorta, 46 F.3d 152 (2d Cir.1994), the defendants set fire to a government vehicle provided by a confidential informant in an effort to obtain insurance proceeds. The defendants were charged, inter alia, under
The distinction between the decisions in Batchelder and Williams and the decisions in Busic and LaPorta is this: the government is required to proceed under a specific statute only if proceeding under a general statute would render the specific statute superfluous. A statute is rendered superfluous only if a general statute can cover every possible circumstance covered by the specific. See, e.g., Lee, 368 F.3d at 222-24. Under those circumstances, the general statute must give way to the specific. In this case, subsections (M)(i) and (R) are not coextensive. The government was entitled to charge Bobb as removable under either subsection because not all conduct covered by subsection (R) is covered by subsection (M)(i).
For these reasons, we conclude that the IJ did not err in finding that the government was entitled to charge Bobb as removable under subsection (M)(i).
Apart from whether the government is entitled to charge Bobb under subsection (M)(i) remains an equally important question: whether the government—whichever provision it chooses—must meet the requirements of both subsections (M)(i) and (R) to remove Bobb from the United States as an aggravated felon. The answer to this question depends upon whether Bobb‘s underlying conviction qualifies as a “hybrid offense” as set forth in our recent opinion in Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.2004).
The alien in Nugent was convicted in Pennsylvania of the crime of theft by deception for depositing a bad check in the amount of $4,831.26, and sentenced to a term of imprisonment of six to twenty-three months. The BIA ordered Nugent removed under
In addressing Nugent‘s arguments, we first had to determine the scope of subsection (G). We concluded that a “theft offense” under subsection (G) could be defined as “a taking of property or an exercise of control over property without consent.” Id. at 174. We found that, given this broad definition, Nugent‘s bad check transaction was a “theft offense.” We held, however, that this did not end our inquiry:
The sole question for decision is whether within the purview of Pennsylvania‘s theft by deception statute, Section 3922, Nugent‘s conviction for passing a bad check represents “an offense involving fraud or deceit” under
8 U.S.C. § 1101(a)(43)(M)(i) , notwithstanding that it also constitutes a “theft offense” under8 U.S.C. § 1101(a)(43)(G) . If we decide that Nugent‘s conviction is “an offense that involves fraud or deceit” as well as “a theft offense,” then to qualify as an aggravated felony under the INA it must meet the requirements of Section 1101(a)(43)(M)(i), loss to the victim of more than $10,000, in addition to Section 1101(a)(43)(G), term of imprisonment of at least one year.
Id. at 174-75. After further analysis, we determined that Nugent‘s theft by deception offense also fell within the purview of subsection (M)(i) because it required the Commonwealth to prove fraud and deceit. Id. at 178.
We employed principles of logic to reach the conclusion that the INS was required to prove the elements of both subsection (G) and subsection (M)(i). The terms employed to define the covered offenses were key to our determination. Subsection (G) is limited to “theft offenses,” while subsection (M)(i) applies more broadly to an “offense that involves fraud or deceit.” Id. at 175. We found this distinction significant, concluding that “[Subsection] (M)(i) clearly applies to those ‘theft offenses’ under Subsection (G) that are anchored on ‘fraud or deceit‘“:
[T]he logicians teach us that a term such as “an offense” as contained in
Section 1101(a)(43)(M) or a “theft offense” as inSection 1101(a)(43)(G) , is said to have both a quality and a quantity. Here we are concerned with quantity. The quantity of a proposition isuniversal or particular according to whether the proposition refers to all members of a class or to some members of the class designated by its subject term. In the case of (M) we have a term representing all members of a class—“an offense.” When a term contains no restrictions (as in (M)—“an offense“), logicians refer to it as “distributed,” and the proposition of which it is the subject as “universal” and is a class. In the universe of offenses set forth in Section 1101(a)(43), however, the term “theft offense” is predicated on some, but not all, of the distributed term “an offense” in (M), and is therefore considered as “undistributed” and is a subclass. The proposition of which it is the subject is denoted as a “particular.” See Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking 57-59 (3d ed.1997); Irving M. Copi, Introduction to Logic 173 (7th ed.1986). Expressed in less technical phrasing: “All theft offenses are offenses, but not all offenses are theft offenses.”
We are taught that conclusions in all reasoning, including legal reasoning, deductive or inductive analogy, “derive[] their validity from the axiom known as the dictum de omni et nullo, which states: ‘What is true of the universal (or class) is true of the particular (or subclass).‘” ... The axiom may also be stated as: If every member of a class has (or does not have) a certain property, and if certain individuals are included in that class, then these individuals have (or do not have) a certain property.
Id. at 176 (underlined emphasis added).
With this background in mind, we set forth the following syllogisms to govern the analysis:
Depriving another of property by fraud or deceit is an offense (M). (Universal)
The offense of theft by deception deprives another of property by theft (G). (Particular)
Therefore, the offense of theft by deception is an offense under (M) and (G).
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The offense of theft by deception is an offense under (M) and (G).
A violation of Pennsylvania‘s theft by deception statute, § 3922, is an offense of theft by deception.
Therefore, a violation of Pennsylvania‘s theft by deception statute, § 3922, is an offense under (M) and (G).
Id. at 177. Applying this framework, we held that Pennsylvania‘s theft by deception statute, which qualified under subsection (G) as a particular “theft offense,” also came within the universal (or class) nature of “an offense” bottomed on fraud or deceit under subsection (M)(i). Following the maxim that “what is true of the universal (or class) is true for the particular (or subclass),” we concluded that the INS had to meet the requirements of subsection (M)(i). Id. at 179 (“Because the particular Pennsylvania statute is designed entirely on all-embracing concepts of fraud or deceit ... it is precisely the particular type of theft contemplated in the universal class of offenses set forth in the fraud or deceit Subsection (M)(i). We therefore apply the axiom ... what is true of the universal (or class) is true for the particular (or subclass) in § 1101(a)(43)(G).“). See also id. at 180 (Rendell, J. concurring) (“[O]nly where an offense is a hybrid—as I submit theft by deception is—and the aggravated felony classifications contain two distinct, clearly applicable tests, should we conclude that both must be fulfilled in order for the offense to qualify as an aggravated felony.“).
For example, if we were bound in this case by the proposition that “all forgeries are frauds,” in order to establish aggravated felony status based upon a predicate forgery conviction (the particular), the government would have to satisfy all the elements of the fraud conviction (the universal). Here, unlike in Nugent where we noted that the term “theft offense” defined a class that was entirely a subset of the larger class “offense,” the class “offense related to forgery” is not entirely a subset of the class “offense involving fraud.” Rather, an “offense related to forgery” is an independent, universal class that intersects with the “offense involving fraud” class. Congress made the intentional decision in subsection (R), as it did with fourteen different offenses set forth in
C.
Our only remaining question is whether the offense of conviction qualifies as an aggravated felony under subsection (M)(i). Bobb was convicted under
(a) Whoever, with intent to defraud—
(2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature;
shall be fined under this title or imprisoned not more than ten years, or both.
For these reasons, we conclude that the BIA did not err in holding that Bobb was removable, and we will accordingly deny his petition for review.
Congress intentionally used broad language when it drafted subsections (M)(i) and (R), which precludes a finding that subsection (R) is the sole vehicle for removing Bobb for an offense committed under
As a result, we agree with the BIA that Bobb committed an “aggravated felony” and will accordingly deny Bobb‘s petition for review.
ALDISERT, Circuit Judge, dissenting.
Alvin Bobb entered the United States as a legal permanent resident in 1991 on the petition of his mother, who is a United States citizen. His wife is a United States citizen. His two children—a 15-year-old son and an eight-year-old daughter—are also both United States citizens. He has been convicted of one crime: forging a United States treasury check. He was sentenced to, and has served, four months in prison for that crime. He concedes that he is removable under
I agree with the majority that not all offenses “relating to ... forgery” are “offenses involving fraud or deceit” and therefore subsection (R) is not a subclass of subsection (M)(i). Maj. Op. at 220. I also agree with the majority that, in most circumstances, “the government is required to proceed under a specific statute only if proceeding under a general statute would render the specific statute superfluous.” Maj. Op. at 224. This rule is rooted in the reality that there are often partial redundancies in federal criminal statutes “both as to the conduct they proscribe and the individuals they reach,” and prosecutors are entrusted with the discretion to choose which statute to apply. United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); see also id. (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor‘s discretion.“).
In Batchelder, to reuse the majority‘s example, the Supreme Court rejected the argument that a defendant convicted under one overlapping statute could be imprisoned for more than the maximum term specified in another overlapping statute. Id. at 118, 99 S.Ct. 2198. The Court determined that each statute, “in conjunction with its own sentencing provision, operated independently of one another,” id., and that both could be applied to the same factual situation unless “the legislative intent to repeal” one of the statutes is “manifest in the ‘positive repugnancy between the provisions.‘” Id. at 122, 99 S.Ct. 2198.
The starting point for my analysis is the recognition that prior to the 1996 amendment most forgery offenses over $10,000 would have qualified under subsection (M)(i). In 1996, however, Congress amended the aggravated felony classifications and added subsection (R). See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-32, § 440(e)(8), 110 Stat. 1214. Subsection (R) specifically enumerates several offenses, including those relating to commercial bribery, counterfeiting, trafficking in stolen vehicles, and forgery. It cannot reasonably be disputed that Bobb‘s crime is an “offense relating to [] forgery,” and therefore falls under subsection (R).
Yet the Government argues, and the majority agrees, that because subsection (R) is not a subclass of subsection (M)(i), Congress intended the Secretary to be able to choose between the two depending upon the facts of each case. I cannot accept this proposition. Regardless of whether subsection (R) is a subset of subsection (M)(i), there can be little doubt that subsection (R) is more specifically applicable to the crime of forgery than subsection (M)(i). These are not separate criminal statutes. They are statutory definitions of the term “aggravated felony.” With few exceptions, Congress appears to have consciously avoided redundancies in the aggravated felony classification. In the one case where we found a redundancy, we held that Congress intended the more specific classification to apply. See Ki Se Lee v. Ashcroft, 368 F.3d 218, 224 (3d Cir.2004) (“[I]n enacting subsection (M)(ii), [Congress] intended to specify tax evasion as the only deportable tax offense; it follows that it did not intend subsection (M)(i) to cover tax offenses.“).11 In this context, it makes little sense to look to broad classifications (such as crime of violence or crime involving fraud or deceit) when Congress has specifically considered the crime at issue and set forth a particular test.
The Government‘s response, which the majority adopts, is twofold. First, it argues that Congress’ sole intention in adding subsection (R) was to bring forgery-related crimes not otherwise covered by subsection (M)(i) (or other aggravated felony classifications) into the aggravated felony rubric. Second, it contends that any other interpretation would defeat Congress’ intent to increase the list of aggravated felonies for which an alien can be deported. See
There is no support for the first proposition. See Ki Se Lee, 368 F.3d at 224 n. 8 (observing that, “[f]or the most part, [the 1996 additions to the aggravated felony definitions] were adopted without any discussion of their particular purpose“). It is unmistakably apparent that the crime of forgery is an “offense related to forgery,” and I do not agree that the “relating to” language, which is found throughout
The Government‘s second contention—that Congress intended to expand the number of aggravated felonies—is irrelevant. My interpretation does not narrow the number of aggravated felonies; I simply propose that we apply the test found in the subsection specifically discussing crimes relating to forgery. Indeed, by many measures this is an easier test for the Secretary, as it removes the high minimum loss requirement and permits removal for relatively short sentences. Moreover, the legislative history is equally plain that Congress intended the 1996 amendment “to ensure that only the most serious crimes, or the more serious convictions of lesser crimes, render the alien deportable.” See
In sum, I simply cannot escape the commonsense conclusion that Congress intended subsection (R)—the only classification that specifically mentions the crime of forgery—rather than subsection (M)(i), which does not mention it, to apply to the crime of forgery. Moreover, although I conclude that there is no ambiguity in subsection (R), to the extent that one might so view it, I would apply the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” Ki Se Lee, 368 F.3d at 225 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).
Whether this result would constitute an “implied repeal” of subsection (M)(i), as the Government suggests, is purely a question of semantics. I am not suggesting that subsection (M)(i) would not apply if Bobb‘s crime were not covered by subsection (R). What I am suggesting is that, in determining whether a crime is an aggravated felony, we should—to carry out Congress‘s intent—apply the most analogous aggravated felony classification, to the extent that there is one.
I would therefore hold that, whatever the practice prior to 1996, forgery is now a removable offense only if it qualifies under the test set forth in subsection (R). I find the majority‘s contrary conclusion—that subsection (R) alone should apply to forgery-related crimes that are not exactly forgery while the Secretary can pick between the subsections (M)(i) and (R) when it is a forgery-related crime that is forgery—both counterintuitive and problematic. Perhaps Gertrude Stein said it best: “A rose is a rose is a rose.” A forgery is a forgery is a forgery.
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Accordingly, with utmost deference and respect, I dissent. I would grant the petition to review and remand to the BIA with a direction to utilize