TREVOR DRAKES, Petitioner v. CHARLES W. ZIMSKI, Acting Director of Immigration and Naturalization Service JANET RENO, Attorney General, Respondents

240 F.3d 246 (3rd Cir.
2001)
TREVOR DRAKES, Petitioner

v.
CHARLES W. ZIMSKI, Acting Director of Immigration and
Naturalization Service; JANET RENO, Attorney General,
Respondents
No. 00-3232
UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Submitted Under Third Circuit LAR 34.1(a)
October 30, 2000.
Filed, February 20, 2001
Petition for Review of Deportation Order of the Board of Immigration

Appeals.
Alan H. Smith, Esquire, York, Pennsylvania, Attorney for Petitioner.
Kate L. Mershimer, Esquire, Office of the United States Attorney,
Harrisburg, Pennsylvania, Attorney for Respondents.
Before: SCIRICA, NYGAARD, and BARRY, Circuit Judges.
OPINION OF THE COURT
BARRY, Circuit Judge:
Trevor Drakes, a native of Guyana, has lived in the United States since 1981 as
a lawful, permanent resident. On August 12, 1998, Drakes was stopped by the
Delaware State Police for a traffic violation. While the facts of what he did are
less than clear, at minimum he provided a false name to the police and later
pled guilty to two counts of second-degree forgery under Delaware state law.
The Immigration and Naturalization Service ("INS") determined that seconddegree forgery was a deportable aggravated felony under 8 U.S.C. 1101(a)(43)
(R) and removal proceedings were initiated. Although the Immigration Judge
found that Drakes' crime did not satisfy the statutory definition of "aggravated
felony," the Board of Immigration Appeals ("BIA") disagreed and ordered

Drakes deported.
2
Drakes filed a Petition for Review and a Petition to Stay Deportation in the
United States District Court. Because of the 8 U.S.C. 1252(b)(2) jurisdictional
bar,1 the District Court transferred the case to this Court. We conclude that
because Drakes is an alien convicted of an aggravated felony, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")
divests this Court of jurisdiction to consider his petition on the merits. 8 U.S.C.
1252(a)(2)(C). Accordingly, the petition will be dismissed.
It is by now well understood that under 8 U.S.C. 1252(a)(2)(C), this Court

lacks jurisdiction to consider a final order of removal against an alien convicted
of one or more specified criminal offenses.2 Liang v. INS, 206 F.3d 308 (3d
Cir. 2000) is our latest pronouncement to that effect. This limitation on our
jurisdiction comes into play, however, only when two facts (which have,
somewhat inappropriately, come to be known as "jurisdictional facts") exist:
(1) the petitioner is an alien (2) who is deportable by reason of having been
convicted of one of the enumerated offenses.
The initial question before us, then -- one we have not before explicitly
considered -- is whether we have jurisdiction to determine whether these
jurisdictional facts are present. Drakes argues, and the government concedes,
that we have jurisdiction to determine our jurisdiction under 1252(a)(2)(C). We
agree, thus joining all of our sister circuits which have considered the issue.
See, e.g., Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir. 2001);
Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir. 2000); Bell v. Reno, 218 F.3d 86, 8990 (2d Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999); Santos v.
Reno, 228 F.3d 591, 597 n.11 (5th Cir. 2000); Diakite v. INS, 179 F.3d 553,
554 (7th Cir. 1999) (per curiam); Flores-Miramontes v. INS, 212 F.3d 1133,
1135 (9th Cir. 2000); see also Lettman v. Reno, 168 F.3d 463, 465 (11th Cir.
1999) (holding that the Court of Appeals has jurisdiction to decide its
jurisdiction under the transitional rules of the IIRIRA), rev'd on other grounds,
207 F.3d 1368 (11th Cir. 2000).
Whether the requisite jurisdictional facts exist in a particular case is ordinarily

easily determined. As the Fourth Circuit stated:
[Where . . . a criminal statute on its face fits the INA's deportability

classification, all convictions under that statute necessarily render an alien
deportable. To go beyond the offense as charged and scrutinize the underlying
facts would change our inquiry from a jurisdictional one into a full
consideration of the merits. Such an approach would fly in the face of the
jurisdiction limiting language of IIRIRA.
7
Hall v. INS, 167 F.3d 852, 856 (4th Cir. 1999). See also Lewis, 194 F.3d at
543.
The rub here is this, and it is two-fold: Drakes does not take issue in any respect
with his Delaware conviction; rather, he contends that the forgery of which he
was convicted under Delaware law is not the crime of forgery Congress had in
mind and intended to encompass when it used the term in 8 U.S.C. 1101(a)(43)
(R). He also contends that his sentence of one year on each of the two counts to
which he pled guilty does not meet the statute's requisite threshold of "at least
one year." If he is right, review is not precluded and the removal order will be
vacated for failing to allege a deportable offense. If he is wrong, as we have
already suggested, 1252(a)(2)(C) prohibits further inquiry.
I.
The Immigration and Naturalization Act ("INK) provides that an alien

convicted of an "aggravated felony" at any time after admission is deportable.
INA 241(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). An "aggravated felony"
includes "an offense relating to . . . forgery . . . for which the term of
imprisonment is at least one year." 8 U.S.C. 1101(a)(43)(R). Drakes pled guilty
to forgery in the second degree under Delaware law, which provides, as relevant
here, that a person is guilty of forgery when he or she alters, makes, possesses,
or transfers certain written instruments while "intending to defraud, deceive or
injure another person." 11 Del. C. 861. Drakes contends that the Delaware
statute goes beyond forgery's traditional "intent to defraud" element by also
including the intents to "injure" and "deceive." "Deceive" and "defraud," the
terms on which Drakes focuses, are not, of course, synonymous. See United
States v. Yermian, 468 U.S. 63, 73, n.12, 82 L. Ed. 2d 53, 104 S. Ct. 2936
(1984) ("Deceive is to cause to believe the false or to mislead. Defraud is to
deprive of some right, interest or property by deceit."). If Congress intended
"forgery" to require an intent to defraud and Drakes meant only to deceive, the
Delaware conviction conceivably would not qualify as an aggravated felony.
10
The government gives this argument the back of its hand, responding with little
more than the simple tautology that forgery means forgery, just as "a rose is a
rose." Appellee Br. at 18. In the plain language of 1101(a)(43)(R), the
government contends, Congress added forgery to the list of aggravated felonies,
and Drakes was convicted of what Delaware calls "forgery." Pronouncing a

flower to be a rose, however, does not necessarily make it one. The language of
a federal statute must be construed to have the meaning intended by Congress,
not the Delaware legislature. See Taylor v. United States, 495 U.S. 575, 590,
109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990) ("It seems to us to be implausible
that Congress intended the meaning of 'burglary' . . . to depend on the definition
adopted by the State of conviction."); Dickerson v. New Banner Institute, Inc.,
460 U.S. 103, 119-120, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983) (absent plain
indication to the contrary, federal laws are not to be construed so that their
application is dependent on state law, "because the application of federal
legislation is nationwide and at times the federal program would be impaired if
state law were to control."); United States v. Turley, 352 U.S. 407, 411, 1 L.
Ed. 2d 430, 77 S. Ct. 397 (1957) ("In the absence of a plain indication of an
intent to incorporate diverse state laws into a federal criminal statute, the
meaning of the federal statute should not be dependent on state law."). To
determine whether the second-degree forgery to which Drakes pled guilty
comes within the "forgery" Congress intended, therefore, we must examine
Delaware state law to see if it encompasses acts beyond those subject to
prosecution under the federal definition. See Taylor, 495 U.S. at 600
(concluding that this "formal categorical approach" is appropriate in such
circumstances); see also In re Alcantar, 20 I. & N. Dec. 801, 809 (B.I.A. 1994)
(applying the same approach).
11
The meaning of "forgery" in federal law is ambiguous. Congress has never

specifically defined forgery, although it has used the term in numerous statutes
outlawing various acts. In some of these statutes, Congress did not specify the
requisite culpable intent. See, e.g., 18 U.S.C. 485 (prohibiting forgery of coins
or bars in denominations greater than five cents). In at least twenty other
statutes, however, Congress specified that an intent to defraud is required. In
four of those statutes, Congress used the term "forgery" together with the
phrase "with intent to defraud," seemingly indicating that the two need not be
joined. See, e.g., 18 U.S.C. 471 (prohibiting forgery of federal obligations "with
intent to defraud"); 18 U.S.C. 478 (prohibiting forgery of foreign obligations
"with intent to defraud"); 18 U.S.C. 482 (prohibiting forgery of foreign bank
notes "with intent to defraud"); 18 U.S.C. 500 (prohibiting forgery of postal
service money orders "with intent to defraud"). Thus, in Congress' view, it may
well be possible to commit "forgery" without "fraud," or at least fraud in the
ordinary sense of misrepresentation for material gain. See United States v.
Cowan, 116 F.3d 1360, 1361-63 (10th Cir. 1997) (had Congress intended to
make the intent to defraud an element of 18 U.S.C. 505, it would have done so
expressly).
12
Where federal criminal statutes use words of established meaning without

further elaboration, courts typically give those terms their common law
definition. Moskal v. United States, 498 U.S. 103, 114, 112 L. Ed. 2d 449, 111
S. Ct. 461 (1990); Gilbert v. United States, 370 U.S. 650, 655, 8 L. Ed. 2d 750,
82 S. Ct. 1399 (1962) ("in the absence of anything to the contrary it is fair to
assume that Congress used ['forgery'] in the statute in its common-law sense.").
If research into the common law yields several competing definitions, however,
courts should look to the reading that "best accords with the overall purposes of
the statute" even if it is the minority view. Moskal, 498 U.S. at 116-17. Where
the traditional definition is out of step with the modern meaning of a term, more
"generic, contemporary" definitions -- such as those found in state statutes -may apply. See Taylor, 495 U.S. at 596, 598. Furthermore, "Congress' general
purpose in enacting a law may prevail over this rule of statutory construction"
altogether. Id.
13
Courts generally define traditional common-law forgery as requiring an intent

to defraud. See, e.g., United States v. McGovern, 661 F.2d 27, 29 (3d Cir.
1981). Similarly, state forgery statutes frequently cite intent to defraud as the
sole requisite intent. See 36 Am. Jur. 2d Forgery 26 (fraudulent intent an
element of most state statutes, although some allow intent to injure as well).
Significantly for the present case, however, at least six states in addition to
Delaware provide in their current forgery statutes for an intent to deceive. See
Conn. Gen. Stat. 53a-138 (1999); N.Y. Penal Law 170.05 (2000); N.D. Cent.
Code 12.1-24-01 (2000); Ky. Rev. Stat. Ann. 516.020 (2000); Me. Rev. Stat.
Ann. tit. 17-A 703 (1999); Neb. Rev. Stat. 28-602 (2000).
14
With these conflicting definitions in mind, we note that Congress evidenced an

intent to define forgery in its broadest sense by stating that "an offense relating
to . . . forgery" qualifies under 1101(a)(43)(R) (emphasis added). Unless the
words "relating to" have no effect, the enumerated crime -- here, forgery -- must
not be strictly confined to its narrowest meaning. See Ruiz-Romero v. Reno,
205 F.3d 837, 840 (5th Cir. 2000) (alien who transported illegal aliens within
the United States committed an aggravated felony as his crime "related to" alien
smuggling; phrase describes a class of crimes and does not constitute a
restriction). The 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.
Given the differing formulations of forgery and the evidence of Congress'
general purpose, we believe it would be eminently appropriate for the BIA to
read into 1101(a)(43)(R) the broad minority definition of forgery rather than
the narrow traditional definition.
15
The BIA did not, at least explicitly, engage in the exercise in which we have
engaged to determine the meaning of forgery for purposes of 1101(a)(43)(R).
Rather, the BIA simply found that (1) the section covers offenses "relating to"
forgery, (2) Drakes was convicted of forgery under 861 of the Delaware
Criminal Code, (3) a fortiori, his offense was an offense relating to forgery
under the Act. Because we come to the same conclusion, however, it is
unnecessary to decide what deference must be paid the BIA's scant analysis and
somewhat barebones conclusion in this case.
16
We do not doubt that the principles of Chevron v. Natural Resources Defense

Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) apply in
general to the statutory scheme set out in the INA. INS v. Aguirre-Aguirre, 526
U.S. 415, 424-25, 143 L. Ed. 2d 590, 119 S. Ct. 1439 (1999). The AguirreAguirre Court relied upon 8 U.S.C. 1103(a)(1), which states that "the Attorney
General shall be charged with the administration and enforcement" of statutes
under Chapter 8 and that the "determination and ruling by the Attorney General
with respect to all questions of law shall be controlling." 8 U.S.C. 1103(a)(1).
"Based on this allocation of authority, . . . the BIA should be accorded Chevron
deference as it gives ambiguous statutory terms concrete meaning through a
process of case-by-case adjudication." Id. at 425 (citation, quotation omitted).
17
The Attorney General (through the BIA) ruled that Drakes's forgery conviction
qualified as an aggravated felony under 8 U.S.C. 1101(a)(43)(R). This Court's
jurisdiction depends on whether Drakes did or did not commit an aggravated
felony under that section. For the purpose of determining our jurisdiction, we
must examine the definition of 1101 "forgery," a question of law which requires
the interpretation of immigration law. Failing to accord deference to the BIA's
interpretation of 1101, as bereft of explanation as it was, would appear to run
counter to the Supreme Court's mandate in Aguirre-Aguirre.3
18
On the other hand, we noted in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999)
that Chevron deference is not required where the interpretation of a particular
statute does not "implicate[] agency expertise in a meaningful way" but presents
instead "a pure question of statutory construction for the courts to decide."
Sandoval, 166 F.3d at 239-40 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
446, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987)). Sandoval involved determining
the effective date of a particular statute, a specific question having little to do
with agency expertise. Even though Sandoval predated Aguirre-Aguirre, its
reasoning does not seem the least bit undercut by the conclusion reached in that
case.
19
This case appears to fall somewhere between Aguirre-Aguirre and Sandoval.
19
This case appears to fall somewhere between Aguirre-Aguirre and Sandoval.

Certainly, the BIA determined a question of law concerning 1101(a)(43)(R).
Just as certainly, however, not only did the BIA not, at least explicitly, call
upon any particular expertise in reaching that determination, but defining under
federal law a term such as "forgery" is what federal courts do all the time.
Nonetheless, as we have suggested, whether we accord deference to the BIA or
reach our own conclusion, the result is the same.
II.
20
Having lost on his first argument, Drakes, of course, could still prevail were we
to agree with him that his sentence was simply not long enough to be a "term of
imprisonment [of] at least one year," 8 U.S.C. 1101(a)(43)(R), "regardless of
any suspension of the imposition or execution of that imprisonment." 8 U.S.C.
1101(a)(48)(B). Drakes contends, and the IJ but not the BIA found, that his
suspended sentence of one year on each count does not fall within the definition
of "at least one year." We do not agree. "At least" is commonly held to mean
"at the lowest" or "as the minimum." Webster's Third New International
Dictionary 1287 (1993). There is no indication that Congress meant anything
different when it drafted the statute.4 A sentence of one year lasts a specific
amount of time, i.e., one year. Just as there is no denying that a person who has
one apple also has "at least" one apple, someone sentenced to one year also
qualifies as being sentenced to "at least" one year. Indeed, we have already
concluded that "Congress was sufficiently clear in its intent to include certain
crimes with one-year sentences in the definition of 'aggravated felony.'" United
States v. Graham, 169 F.3d 787, 788 (3d Cir. 1999), cert. denied 528 U.S. 845,
145 L. Ed. 2d 99, 120 S. Ct. 116 (rejecting the argument that a one-year
sentence does not implicate 8 U.S.C. 1101(a)(43)(G)).
III.
21
Because Drakes' conviction for forgery under Delaware law and the ensuing
one-year sentence met the definition of an "aggravated felony" under 8 U.S.C.
1101(a)(43)(R), we will dismiss Drakes' petition for lack of jurisdiction
pursuant to 8 U.S.C. 1252(a)(2)(C).
Notes:
1
8 U.S.C. 1252(b)(2) provides, as relevant here, that "the petition for review
shall be filed with the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings."
8 U.S.C. 1252(a)(2)(C) provides in pertinent part:

Notwithstanding any other provision of law, no court shall have jurisdiction to
review any final order of removal against an alien who is removable by reason
of having committed a criminal offense covered in [8 U.S.C. ] 1182(a)(2) . . . .
The offenses referred to in 1252 include aggravated felonies: controlled
substance convictions; certain firearm, national security, and defense crimes;
and multiple convictions for crimes of moral turpitude.
Other courts have employed Chevron deference in interpreting statutes that

ultimately determined their jurisdiction. See, e.g., Bell v. Reno, 218 F.3d 86, 90
(2d Cir. 2000) (analyzing under Chevron standard whether the Immigration Act
of 1990 superseded the ADAA date restriction with regard to aggravated
felonies); Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir. 2000) (same);
Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999) (according "due deference" to
the BIA interpretation of a statute in deciding whether or not a crime involves
"moral turpitude" within the terms of 8 U.S.C. 1227(a)(2)(A)(ii)).
Drakes points out that in Song v. INS, 82 F. Supp. 2d 1121 (C.D. Cal. 2000),
the District Court mentioned that aliens are aggravated felons under 1101(a)
(43)(R) if they are sentenced to "more than a year." Id. at 1126. The Song Court
referenced the statute only in passing, however, and apparently simply
misstated its wording.

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240 F.3d 246 (3rd Cir.

TREVOR DRAKES, Petitioner

UNITED STATES COURT OF APPEALS FOR THE THIRD

Petition for Review of Deportation Order of the Board of Immigration

felony," the Board of Immigration Appeals ("BIA") disagreed and ordered

It is by now well understood that under 8 U.S.C. 1252(a)(2)(C), this Court

Whether the requisite jurisdictional facts exist in a particular case is ordinarily

[Where . . . a criminal statute on its face fits the INA's deportability

The Immigration and Naturalization Act ("INK) provides that an alien

and Drakes was convicted of what Delaware calls "forgery." Pronouncing a

The meaning of "forgery" in federal law is ambiguous. Congress has never

Where federal criminal statutes use words of established meaning without

Courts generally define traditional common-law forgery as requiring an intent

With these conflicting definitions in mind, we note that Congress evidenced an

We do not doubt that the principles of Chevron v. Natural Resources Defense

This case appears to fall somewhere between Aguirre-Aguirre and Sandoval.

This case appears to fall somewhere between Aguirre-Aguirre and Sandoval.

8 U.S.C. 1252(a)(2)(C) provides in pertinent part:

Other courts have employed Chevron deference in interpreting statutes that

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