Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-2006

Bobb v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-2891




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                                           PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 05-2891


                       ALVIN BOBB,

                             Petitioner

                              v.

   ATTORNEY GENERAL OF THE UNITED STATES,

                              Respondent


                On Petition for Review from an
          Order of the Board of Immigration Appeals
                   (Board No. A43 156 231)
               Immigration Judge R. K. Malloy


                 Argued June 13, 2006
Before: FISHER, ALDISERT and LOURIE,* Circuit Judges.



      *
       The Honorable Alan D. Lourie, United States Circuit
Judge for the Federal Circuit, sitting by designation.
                   (Filed: August 3, 2006)

Steven A. Morley (Argued)
Morley, Surin & Griffin
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106
      Attorney for Petitioner

Viveca D. Parker (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorney for Respondent




                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 18 U.S.C. § 510(a)(2), and was sentenced to four
months imprisonment. An immigration judge (“IJ”) determined
at Bobb’s bail hearing that his conviction was not an
“aggravated felony” for purposes of removal, and the Board of
Immigration Appeals (“BIA”) affirmed. At a subsequent
removal hearing, however, a different IJ determined that the
crime was an “aggravated felony,” which the BIA affirmed.
That decision has dire consequences for Bobb’s efforts to

                              2
remain in the United States, as it renders him removable and
precludes him from seeking discretionary relief from removal in
the form of a readjustment of status.

        Our task is to determine whether Bobb’s conviction was
an “aggravated felony.” In so doing, we must survey the
interrelationship between two statutory provisions set forth
under 8 U.S.C. § 1101(a)(43): subsection (M)(i), which states
that an “aggravated felony” is “an offense . . . that involves
fraud or deceit in which the loss to the victim exceeds $10,000”;
and subsection (R), which states that “an offense relating to . . .
forgery . . . for which the term of imprisonment is at least one
year” is an “aggravated felony.” Bobb contends that the BIA
erred in holding he committed an aggravated felony because
subsection (R), which specifically references the crime of
forgery and all related offenses, is the exclusively applicable
aggravated felony provision for all forgery offenses. In the
alternative, Bobb argues that his offense was a “hybrid offense”
under our recent opinion in Nugent v. Ashcroft, 

(3d Cir. 2004), and that the government accordingly should have
been required to establish all the criteria specified by both
subsections. Under either theory, Bobb’s conviction would not
constitute an aggravated felony because subsection (R) includes
a requirement that the alien have served a term of imprisonment
of greater than one year.

        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

                                3
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 18 U.S.C. § 501(a)(2). Bobb pleaded
guilty and was sentenced by the District Court on October 21,
1999, to a term of imprisonment of four months.

       On December 14, 1999, the INS 1 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 section 1101(a)(43)(M)(i) of the Immigration and
Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(M)(i). On
June 6, 2000, the INS lodged an additional deportation charge


       1
        On March 1, 2003, the INS ceased to exist as an agency
of the Department of Justice. Pursuant to the Homeland
Security Act of 2002, the enforcement functions of the INS were
transferred to the Department of Homeland Security, Bureau of
Immigration and Customs Enforcement (“BICE”).               See
Homeland Security Act of 2002, Pub. L. No. 107-296, § 441,
116 Stat. 2135, 2192.

                              4
against Bobb alleging a separate ground for removability: that
he had been convicted of a crime involving moral turpitude
committed within five years after his admission, and for which
a sentence of one year or more imprisonment could be imposed.
See 8 U.S.C. § 1227(a)(2)(A)(i). Bobb has conceded this second
charge, see App. 11, but disputes the first charge that his
conviction was an aggravated felony under subsection (M)(i).

       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
8 U.S.C. § 1182(h). The government countered Bobb’s motion
by moving to pretermit Bobb’s application.

      A second IJ conducted removability proceedings and
considered the motions.   The IJ noted that the prior

                              5
determination at the bond hearing that Bobb’s conviction was
not an aggravated felony was not controlling in the removability
proceedings. See 8 C.F.R. § 1003.19(d) [formerly § 3.19(d)].2
The IJ held that Bobb’s conviction satisfied subsection (M)(i),
and that the INS was not obligated to charge Bobb under
subsection (R). Citing the legislative history of subsection (R),
the IJ explained that accepting Bobb’s interpretation would lead
to the “absurd result” that the addition of subsection (R) to
section 1101(a)(43) had decreased the number of crimes that
could be considered aggravated felonies, despite Congressional
intent to the contrary. (App. 58.) See H.R. Rep. No. 104-22, at
7 (1995); 141 Cong. Rec. E330-01 (1995). Accordingly, the IJ
concluded that subsections (M)(i) and (R) were separate and
distinct statutes:



       2
           That section provides as follows:

       Consideration by the Immigration Judge of an
       application or request of a respondent regarding
       custody or bond under this section shall be
       separate and apart from, and shall form no part of,
       any deportation or removal hearing or proceeding.
       The determination of the Immigration Judge as to
       custody status or bond may be based upon any
       information that is available to the Immigration
       Judge or that is presented to him or her by the
       alien or the Service.

8 U.S.C. § 1003.19(d).

                                 6
       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


       3
        The parties agree that Bobb is not eligible for
cancellation of removal, the other form of discretionary relief
available for a permanent resident convicted of a crime. 8
U.S.C. § 1229b(a).

                                7
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, 

, 445-46 (3d
Cir. 2005).

       We have jurisdiction over Bobb’s petition for review
under 8 U.S.C. § 1252(a)(1). Under the REAL ID Act, our
jurisdiction extends to “‘questions of law raised upon a petition
for review,’ including petitions for review of removal orders
based on aggravated felony convictions.               8 U.S.C.
§ 1252(a)(2)(D).” Popal v. Gonzalez, 

, 251 (3d
Cir. 2005). We exercise de novo review over the BIA’s
conclusion that Bobb’s criminal conviction constitutes an
aggravated felony. Ki Se Lee v. Ashcroft, 

, 221 (3d
Cir. 2004).4


       4
        Although we give Chevron deference to the BIA’s
interpretation of the aggravated felony provisions of the INA if
we determine that the statute is ambiguous, see Valansi v.
Ashcroft, 

, 208 (3d Cir. 2002), the BIA is not
entitled to Chevron deference as to whether a particular federal
criminal offense is an aggravated felony. That determination
requires us to interpret federal criminal law and our own
appellate jurisdiction, matters outside the authority or expertise
of the BIA. See Tran v. Gonzalez, 

, 467 (3d Cir.
2005) (declining to give Chevron deference to the BIA’s
interpretation of a federal criminal statute because it was “a task
outside the BIA’s special competence and congressional
delegation, while it is very much a part of this Court’s

                                8
                              III.

       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 section 1101(a)(43). Thus, since subsection (R)
specifically covers “forgery,” the Government should not be
permitted to charge Bobb as being removable under subsection
(M)(i). In contrast, the Government argues that subsection (R)
is not merely a subset of subsection (M)(i). According to the
Government, not all forgery-related offenses involve fraud, and
Congress’s intent in enacting subsection (R) was, in part, to
capture those forgery-related offenses that do not involve fraud
and deceit. As a result, the Government argues that the BIA
correctly concluded that Bobb was convicted of an offense that
involved fraud and deceit.

       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.




competence”); see also Soliman v. Gonzales, 

, 281
(4th Cir. 2005).

                               9
                                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

                                10
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, 

(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. 

As a result, we held that
subsection (M)(i) covers all offenses that have as an essential
element an intent to defraud or deceive. 

See Ki Se

(3d Cir. 2004) (“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, 

(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,

                               11
including Delaware, had held that forgery could also be
premised on an intent to deceive. 

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.” 

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.” 

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


       5
         See, e.g., Commonwealth v. Leber, 

(Pa.
Super. Ct. 2001); Wayne R. LaFave, Substantive Criminal Law,
§ 19.7(j)(5) (2d ed. 2003) (stating that “[f]orgery requires an
intent to defraud”); Black’s Law Dictionary 677 (8th ed. 2004)
(defining “forgery” as “1. The act of fraudulently making a false
document or altering a real one to be used as if genuine. . . .

                                12
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.

       The Government provides in its brief a good example of
an offense “related to” forgery that does not have as an element
an intent to defraud or deceive: 18 U.S.C. § 510(b). Section
510(b) criminalizes the knowing exchange of stolen or forged
Treasury instruments:

       (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,


2. A false or altered document made to look genuine by
someone with intent to deceive.”); Model Penal Code § 224.1;
37 C.J.S. § 2 (1997) (“While it is true that there is a distinction
between fraud and forgery, and forgery contains some elements
that are not included in fraud, forgeries are a species of fraud.
In essence, the crime of forgery involves the making, altering,
or completing of an instrument by someone other than the
ostensible maker or drawer or an agent of the ostensible maker
or drawer.”).

                                13
       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.

18 U.S.C. § 510(b). A conviction under subsection 510(b)
contains two essential elements: (1) that the defendant buy, sell,
or exchange a stolen or forged endorsement, (2) with knowledge
that the instrument has been stolen or forged. See United States
v. Clemmons, 

(3d Cir. 1989) (upholding the
defendant’s conviction under subsection 510(b) where there was
evidence that the defendant knew the bonds were stolen and
attempted to sell the bonds to a government informant).
Conspicuously absent from this definition is any element
containing an intent to defraud or deceive. Yet, there can be no
doubt that selling a forged check to a middleman would
constitute an offense “related to forgery”: but for the forged
endorsement, there would be no criminal offense. In fact, we
have explained that the purpose of section 510(b) was to close
a loophole in the law which did not permit the government to
prosecute a defendant who sold or transferred forged or stolen
instruments to another party without representing that the
instruments were genuine. See United States v. Williams, 

, 145 (3d Cir. 1988) (stating that section 510(b) “sets
forth that the defendant must have knowledge that the
instrument is forged but gives no indication that he must
represent it is genuine”). We agree with the government that
Congress’ choice of the word “related to” was intended to
capture certain criminal conduct, such as that defined by 18
U.S.C. § 510(b), which does not contain any intent to deceive or


                               14
defraud.6 See 

(referencing Congress’s
intent to define forgery in the broadest sense because it used the
phrase “related to” in subsection (R)); see also 

(referencing Congress’s intent to broaden the scope
of subsection (M)(i) by using the term “involves”).

        Despite the broad construction we have given subsections
(M)(i) and (R), Bobb argues that our decision in Ki Se Lee v.
Ashcroft, 

(3d Cir. 2004), compels the conclusion
that Bobb can only be charged as removable under subsection
(R). In Lee, the petitioners were convicted of filing false
income tax returns causing a tax delinquency in an amount
greater than $50,000.         The INS brought removability
proceedings under subsection (M)(i), since the amount at issue
was greater than $10,000. We held that the INS was precluded
from removing the petitioners under subsection (M)(i) because
a different provision, subsection (M)(ii), which applied
specifically to tax evasion offenses in which the revenue loss to
the government exceeded $10,000, identified the only removable
tax offense. We set forth three reasons for our conclusion.
First, we noted that our interpretation was the only way to avoid
surplusage because there was no scenario whereby tax evasion


       6
        In addition to section 510(b), there are a number of other
federal forgery statutes that do not contain an express element
of an intent to defraud or deceive. See generally United States
v. Cowan, 

, 1363 (10th Cir. 1997) (explaining that
statutes in Chapter 25 of Title 18, which are designed to protect
the integrity of government functions, do not have as an element
the intent to defraud or deceive).

                               15
did not involve fraud or deceit. Thus, subsection (M)(i) did not
exist simply as a “catch-all” section for certain tax fraud crimes
not covered by (M)(ii). Second, we determined that Congress
acted purposefully by singling out tax evasion within the same
subsection as the fraud provision in an overall statute with
numerous subsections. 

(“Where Congress includes
particular language in one section of the statute but omits it in
another section of the same act, it is generally presumed that
Congress acts intentionally and purposefully in the disparate
inclusion or exclusion.”) (citation omitted). We focused on the
fact that subsections (M)(i) and (M)(ii) were “interrelated and
closely positioned,” i.e., they were adopted at the same time and
appeared within the same subsection within a statute that
contained twenty-one separate subsections specifying
aggravated felonies. 

context, Congress’s choice to
list the crime of tax evasion as a separate subsection led to our
conclusion that tax evasion was the only removable tax-related
aggravated felony. 

Finally, we stated that the history
and structure of the criminal tax laws supported the
interpretation that Congress intended to single out tax evasion
as the only tax crime that could be a removable offense. 

that “in 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.” 

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

                               16
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. Section
510(a)(2) offenses can constitute aggravated felonies under
either subsection (M)(i) or subsection (R) because of the broad
manner in which Congress drafted both subsections.7 As such,
subsection (R) is not the sole avenue to charge Bobb with
removability for his conviction under section 510(a)(2).

                                2.

       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


       7
         For example, all section 510(a)(2) offenses have as an
element the specific intent to defraud and thus fall within
subsection (M)(i)’s broad definition of an offense that “involves
fraud or deceit” as long as the loss to the victim exceeds
$10,000. In addition, all section 510(a)(2) offenses have as an
element that the check passed by the defendant “bore a forged
or falsely made endorsement” and thus come within the ambit of
subsection (R) if the term of imprisonment is at least one year.

                                17
section 1101(a)(43) as part of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32, §
440(e)(8), 110 Stat. 1214.8 The House Report submitted in
connection with that legislation confirms Congress’ intent to add
several crimes to the definition of “aggravated felony”:

               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


       8
         Subsection (R) was originally drafted as part of the
Criminal Alien Deportation Improvements Act of 1995, H.R.
668, 104th Cong. (1995), a House bill that was never enacted.
Subsection (R) was eventually enacted, however, as part of the
AEDPA. Subsection (R) originally defined an “aggravated
felony” as an offense “related to . . . forgery . . . for which a
sentence of 5 years’ imprisonment or more may be imposed.”
Later in 1996, Congress amended subsection (R) in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, § 321(a)(10), 110 Stat. 3009, to
strike the language “for which a sentence of 5 years’
imprisonment or more may be imposed” and to insert in its place
the current language of “for which the term of imprisonment is
at least one year.”

                               18
       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.

H.R. Rep. No. 104-22, at 7 (1996).

       The broad language used in subsection (R), combined
with the legislative history, confirms that Congress did not
intend to hamstring the INS’s ability to bring enforcement
proceedings, but rather to increase the number of removable
offenses. A different interpretation simply makes no sense.
Congress is presumed to have understood that “forgery
offenses” historically have had as an essential element an intent

                               19
to defraud or deceive, and thus that they fell under subsection
(M)(i). But there was a gap in the existing language of
subsection (M)(i), because it did not cover: (1) the sale of
forged or stolen documents to middlemen; and (2) other offenses
that are related to forgery, but which do not contain as an
essential element an intent to defraud or deceive. As the IJ
correctly noted in his opinion, it simply would make no sense
“to remove the immigration consequences from offenses that
previously were considered aggravated felonies.” (App. 5.) In
this respect, Congress’s choice to use the phrase “related to” was
deliberate because it evidenced an intent to categorize as
“aggravated felonies” crimes which previously were not covered
by section 1101(a)(43). (See App. 6.) (“One section, INA
§ 101(a)(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.”).

                                3.

        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.”

                               20
United States v. Batchelder, 

(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 

In so doing, the Court
determined that each statute, “in conjunction with its own
sentencing provision, operates independently of the other.” 

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.’” 

(citations omitted). The
Court found that the differing penalty provisions were “fully
capable of coexisting because they apply to convictions under
different statutes.” 

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. 

See
Berra v. United States, 

(1956) (upholding the


        9
        The defendant, a convicted felon, was convicted of
receiving a firearm that had traveled in interstate commerce, in
violation of 18 U.S.C. § 922(h), which carried a maximum term
of imprisonment of five years. See 18 U.S.C. § 924(a). Another
statutory provision of the same act (The Omnibus Crime Control
and Safe Streets Act, 82 Stat. 197 (1968)), 18 U.S.C. App.
§ 1202, also prohibited a felon from possessing a firearm,
although the maximum term of incarceration under that section
was two years’ imprisonment.

                                  21
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, 

, 350 n.6 (1965).

        Similarly, this Court recognized in United States v.
Williams, 

(3d Cir. 1988), the possibility that a
defendant could be prosecuted for the same conduct under either
18 U.S.C. § 510(a)(2) or (b). In Williams, we noted that section
510 was enacted to close several loopholes that had existed for
forgery-related prosecutions.         Under existing law, the
government could not prosecute a defendant for forgery offenses
involving United States Treasury instruments. In addition, there
was no avenue prior to the enactment of section 510(b) to
prosecute a defendant “if a properly endorsed check is stolen
and then cashed or if the thief sells the check without endorsing
it.” 

The defendant argued that section 510(a)(2) was
superfluous because many offenses chargeable under section
510(a)(2) could also be charged under section 510(b). We
rejected that argument, noting that “no matter how 18 U.S.C.
§ 510 is read there will be redundancies within its subsections.”
See 

under any conceivable reading of 18
U.S.C. § 510 a thief who steals a treasury check and then
endorses it and, representing it as genuine, cashes it with an
innocent merchant, can be prosecuted under either subsection
(a)(2) or subsection (b) for the transaction.”). Despite these
partial redundancies, we concluded that the subsections were
distinct and covered separate conduct:

             [T]here are differences between the
       subsections though undoubtedly their provisions

                               22
       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 endorsed check or sold the check without
       enclosing 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.

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

                               23
trumped a general one. For example, the Supreme Court held in
Busic v. United States, 

(1980), superseded by
statute on other grounds as stated in United States v. Gonzales,

, 10 (1997), that the defendant could not be sentenced
under the statutory enhancement provision in 18 U.S.C. § 924(c)
(providing an enhanced penalty for using a firearm in
connection with a crime of violence) where the predicate
offense of assaulting a federal officer with a dangerous weapon
contained its own specific statutory enhancement. The Court
determined that the more specific enhancement provision in the
predicate offense trumped the general enhancement provision in
section 924(c) when both enhancement provisions covered the
same conduct. Thus, the government was precluded from
proceeding under section 924(c).

       Similarly, in United States v. LaPorta, 

(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 18 U.S.C. § 844(h)(1) with using an explosive device to
commit a felony. The defendants argued that the charge should
be dismissed because their conduct was covered solely by
section 844(f), which prohibits the destruction of government
property. The Second Circuit agreed, determining that the
specific statute relating to the destruction of government
property necessarily controlled the broader statute because
otherwise section 844(f) would have no practical effect.
According to the court, a contrary interpretation would render
section 844(f) superfluous because the government would
always have the ability to charge under the general offense, and


                              24
would do so in most cases do so because it contained more
stringent penalties. 

        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., 

. 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).

                               B.

        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, 

(3d Cir. 2004).

                               25
       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 8 U.S.C. § 1101(a)(43)(G), which defines as an
aggravated felony a “theft offense . . . for which the term of
imprisonment [is] at least one year.” Nugent argued that his
conviction for theft by deception was not a “theft offense,” but
rather was a fraud offense covered by subsection (M)(i). As in
the present case, the distinction was important for Nugent: he
was not removable under subsection (M)(i) because his offense
involved a loss to the victim of less than $10,000. If subsection
(G) applied, however, he was removable because he was
sentenced to a term of imprisonment of at least one year.

        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.” 

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” under 8 U.S.C.
       § 1101(a)(43)(G). If we decide that Nugent’s

                               26
       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
       m eet the requirements of S ection
       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.

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. 

       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.” 

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 in Section
       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 is universal or
       particular according to whether the proposition

                               27
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

                         28
       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.

(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).

                              ****

       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).

                               29


       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). 

(“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 

(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.”).

        The clearest reading of Nugent is that it is restricted to
classificational schemes in which one classification is entirely
a subset of another. Under such circumstances, we infer a
legislative intent to require proof of all the elements of the
universal classification. The logical reasoning on which Nugent
rests, however, cannot support a similar result for separate
universal classifications which intersect, but which have
separate and independent elements. In that situation, which we
have in this case, satisfaction of the separate criteria of either


                                30
universal classification will suffice to establish the predicate
defined by the classification.

        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 section
1101(a)(43), to use the broader term “offense.” See 

Thus, Nugent’s holding that the universal must be proven if it
subsumes the subclass is inapplicable to this case. Bobb’s
underlying conviction is not a “hybrid offense,” and the
government was entitled to charge him as removable solely
under subsection (M)(i).

                               C.

       Our only remaining question is whether the offense of
conviction qualifies as an aggravated felony under subsection
(M)(i). Bobb was convicted under 18 U.S.C. § 510(a)(2) of
passing, uttering, and publishing a United States Treasury check
in the amount of $13,277 which contained a forged
endorsement. That statute provides as follows:

                               31
       (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.

18 U.S.C. § 510(a). The Government is required to prove
beyond a reasonable doubt the following four elements to obtain
a conviction under section 510(a)(2): (1) that the defendant
passed or attempted to pass a United States Treasury Check;
(2) that the check bore a forged or falsely made endorsement;
(3) that the defendant passed the check with intent to defraud;
and (4) that the defendant acted knowingly and willfully.
United States v. Rosario, 

, 163 (3d Cir. 1997).
Section 510(a)(2) explicitly contains as an element an “intent to
defraud,” which qualifies Bobb’s conviction as a removable
offense under subsection (M)(i). Moreover, Bobb pleaded
guilty to an indictment which confirms that the amount of loss
was greater than $10,000.10 Therefore, Bobb’s conviction


       10
            Bobb’s indictment stated as follows:

       On or about December 18, 1995, in the Eastern
       District of Pennsylvania, defendant ALVIN
       NETHANIEL BOBB did knowingly and with
       intent to defraud, pass, utter, and publish a United

                                 32
satisfied the essential requirements for removability under
subsection (M)(i).

       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.

                              IV.

        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 18 U.S.C. § 510(a)(2). The legislative
history supports the conclusion that Congress intended to
increase the number of crimes which constitute “aggravated
felonies,” not to provide a loophole through which an offense
that could have previously constituted an aggravated felony may
no longer be charged as such. In addition, Bobb’s argument that
he is removable only under subsection (R) has no analogue in
the criminal law context. Finally, Bobb’s offense is not a
“hybrid offense” as set forth in Nugent.


       States Treasury check . . . in the amount of
       $13,277 dated December 14, 1995 bearing a
       falsely made and forged endorsement.            In
       violation of Title 18, United States Code, Section
       510(a)(2).

(App. at 47 (emphasis added).)


                              33
       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 INA §
237(a)(2)(A)(i) for having committed a crime of moral
turpitude, but contests the Secretary’s determination that his
crime qualifies as an “aggravated felony.” The consequences of
such a designation are harsh: immediate deportation, ineligibility
for discretionary relief from removal, a 20-year-prohibition on
reentry, and no judicial review. See 8 U.S.C. §§ 1229(b),
1182(a)(9)(A)(ii) & 1252(a)(29)(C).




                               34
        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 17. 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 25. 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, 

, 124 (1979);
see also 

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. 

The Court determined that each statute, “in conjunction
with its own sentencing provision, operated independently of
one another,” 

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.’” 

.




                                35
        My difficulty with the majority’s approach is that 8
U.S.C. § 1101(a)(43) is not a criminal statute and subsections
(R) and (M)(i) do not “operate[] independently” of one another,
nor do they have their “own sentencing provision[s].” See 

(R) and (M)(i) do not independently
proscribe any type of conduct—they simply define what
constitutes an “aggravated felony.” Many cases support the
notion that prosecutors can choose between applicable criminal
and civil statutes, but my research has not uncovered any case
permitting administrative agencies to choose between two
definitions within the same subsection of the same statute.
Moreover, neither the statutory text nor the legislative history
evince any intent by Congress to vest the Secretary with the
discretion to pick and choose between two definitions of the
term “aggravated felony,” applying whichever test is easiest to
satisfy under the facts of the case. Accordingly, I respectfully
dissent.

        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

                               36
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, 

, 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


       11
         Although I agree with the majority that Ki Se Lee does
not carry the day for Bobb, it is nonetheless supportive.
Notably, the majority in Ki Se Lee acknowledges that, at least
theoretically, not all instances of tax evasion involve fraud or
deceit, stating, rather cryptically: “We have considered the
government’s contention that there could be a case where a
conviction for tax evasion would not involve fraud or deceit, in

                                37
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



which case subsection (M)(ii) would exist simply to catch any
cases not covered by subsection (M)(i), but the government has
not identified, and we are unable to envision, what that case
might be.” 

. Judge, now Justice, Alito, dissented on
this issue, stating:

       Neither “fraud” nor “deceit” is mentioned in the
       statute as a necessary element of tax evasion. The
       statute applies to the willful attempt “in any
       manner to evade or defeat any tax imposed by this
       title or the payment thereof.” 26 U.S.C. § 7201.
       Likewise, leading cases interpreting this language
       do not hold that fraud or deceit is an element of
       the offense. . . .

(Alito, J., dissenting) (emphasis omitted). It therefore
appears that the majority in Ki Se Lee accepted that one
classification need not render another wholly superfluous for the
more specific to take precedence.

                                38
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 H.R. Rep. No. 104-22, at
7 (1996).

       There is no support for the first proposition. See Ki Se

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 § 1101(a)(43), signifies an
exclusive intent to focus on offenses “relating to” forgery that
are not in fact forgeries. Moreover, I do not agree with the
majority that there was no need to revisit the test applicable to
“forgery offenses.” See Maj. Op. at 19-20 (“Congress is
presumed to have understood that ‘forgery offenses’ historically
have had as an essential element an intent to defraud or deceive,
and thus that they fell under subsection (M)(i).”). Although
“forgery offenses” historically have had an intent to defraud or
deceive as an essential element, some modern state statutes do
not, see 36 Am. Jur. 2d Forgery § 26 (noting that fraudulent
intent is an element of most state statutes, although some allow
intent to injure as well), and Congress has indicated that the
federal crime of forgery need not necessarily include as an
element the intent to defraud. See Drakes v. Zimski, 

, 249 (3d Cir. 2001) (“[I]n Congress’ view, it may well be

                               39
possible to commit ‘forgery’ without ‘fraud,’ or at least fraud in
the ordinary sense of misrepresentation for material gain.”); see
also 18 U.S.C. § 510(b) (“Whoever, with knowledge that such
Treasury check or bond or security of the United States is stolen
. . ..”) (emphasis added). I therefore cannot accept that it
“makes no sense” for Congress to have established a new test
for all forgery-related crimes.

        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 H.R. Rep. No. 104-22, at 7 (1996).
Accordingly, that Congress may have intended to increase the
number of aggravated felonies does nothing to help us resolve
whether Bobb’s crime is sufficiently serious to warrant removal.

        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

                                40
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 

(quoting INS v. Cardoza-Fonseca, 

,
449 (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 § 1101(a)(43)(R) in determining
whether Alvin Bobb committed an aggravated offense.12




       12
         Because I believe that with the adoption of (R), forgery
may no longer be an offense under (M)(i), the teachings of
Nugent v. Ashcroft, 

(3d Cir. 2004), are not
applicable to this case.

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