Richards v. Ashcroft, 400 F3d 125 - Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

Holding: Connecticut General Statute 53a-139 - Forgery 2nd Degree is an Aggravated Felony for Immigration Purposes

400 F.3d 125

Mark RICHARDS, Petitioner-appellant,
v.
John ASHCROFT, Respondent-appellee.

Docket No. 03-2503.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2004.

Decided: March 3, 2005.

Roberto Tschudin Lucheme, Glastonbury, CT, for petitioner-appellant.

Patrick F. Caruso, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney, Jeffrey A. Meyer, Assistant United States Attorney, on the brief), Hartford, CT, for respondent-appellee.

Before: JACOBS, SOTOMAYOR and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge:
1

Petitioner Mark Richards ("Richards") appeals from a judgment of the United States District Court for the District of Connecticut (Hall, J.), entered on July 23, 2003, denying his petition pursuant to 28 U.S.C. § 2241 to vacate an order of removal. Richards asserts that he is entitled to § 2241 relief because an Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erroneously concluded that he had been convicted of an "aggravated felony," specifically, "an offense relating to ... forgery," 8 U.S.C. § 1101(a)(43)(R). Richards argues that his 2001 conviction for second-degree forgery under Connecticut General Statute § 53a-139 did not constitute "an offense relating to ... forgery" because the Connecticut statute criminalizes mere possession of a forged document. We conclude that possession of a forged document with intent to defraud, deceive or injure is "an offense relating to ... forgery" within the meaning of § 1101(a)(43)(R), and affirm the judgment of the district court.

BACKGROUND
2

Richards, a citizen of Jamaica, entered the United States on March 13, 1981. On April 2, 2001, Richards was issued a notice of removal proceedings charging him with removability based on a 1995 conviction under Connecticut law for third-degree assault, which the INS alleged constituted an aggravated felony as defined by subparagraph (F) of the aggravated felony definition of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43). On April 26, 2001, Richards was convicted in Connecticut Superior Court of second-degree forgery under Connecticut General Statute § 53a-139 and sentenced to two years imprisonment. The INS subsequently amended the charge of removability to include the forgery conviction as an additional aggravated felony under subparagraph (R) of § 1101(a)(43).
3

On January 9, 2003, IJ Michael W. Straus determined that both the assault and the forgery conviction were removable offenses. The IJ found, in relevant part, that second degree forgery under Connecticut General Statute § 53a-139 is an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(R). On April 10, 2003, the BIA dismissed Richards' appeal, finding, without further elaboration, that the IJ "correctly concluded that the respondent is removable as an alien convicted of an aggravated felony" based on both of his convictions. Richards filed a habeas petition in the United States District Court for the District of Connecticut on May 2, 2003, asserting in relevant part that the forgery conviction was not an aggravated felony.1 That petition was denied on July 22, 2003. This appeal timely followed.

DISCUSSION

I. Jurisdiction and standard of review
4

The district court had subject matter jurisdiction over Richards' habeas petition under 28 U.S.C. § 2241.2 This Court has appellate jurisdiction over the denial of that petition pursuant to 28 U.S.C. §§ 1291 and 2253(a).
5

On appeal from a denial of a habeas corpus petition, we review the petition de novo. Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir.2004). To the extent that this review involves interpretation of the INA, "we accord considerable deference to the BIA's interpretation of ambiguous provisions" of the statute. Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir.2004). In contrast, we do not defer to the BIA's interpretation of state law or of federal criminal laws, which the BIA does not administer. See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004); Evangelista, 359 F.3d at 150. Thus, to the extent a determination of whether a given criminal conviction falls within the INA's definition of "aggravated felony" turns on the meaning of state or federal criminal law, we review the BIA's determination de novo. See Kamagate, 385 F.3d at 151; Sui v. INS, 250 F.3d 105, 112-13 (2d Cir.2001).
6

II. Connecticut second-degree forgery is an "offense relating to ... forgery" under the INA
7

Section 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), authorizes the removal of aliens who have committed an "aggravated felony," as defined at 8 U.S.C. § 1101(a)(43). Subparagraph (R) of § 1101(a)(43) includes any "offense relating to ... forgery ... for which the term of imprisonment is at least one year." In determining whether a given state conviction constitutes an aggravated felony under the INA, we do not look to the facts surrounding the particular conviction, but rather take a "categorical approach," examining the generic elements of the offense of conviction to determine whether it is "any broader than an offense defined as an `aggravated felony' under federal law." Gousse v. Ashcroft, 339 F.3d 91, 95-96 (2d Cir.2003) (some internal quotation marks omitted); see also Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003). If the criminal statute punishes conduct that falls outside the INA's definition, then the crime does not constitute an aggravated felony. Gousse, 339 F.3d at 96. Applying this categorical approach, Richards argues that Connecticut General Statute § 53a-139 is broader than the federal definition of "forgery" because it penalizes the mere possession, as opposed to the making or uttering, of a forged instrument.
8

Section 53a-139 provides, in relevant part, that "[a] person is guilty of forgery in the second degree when, with intent to defraud, deceive, or injure another, he falsely makes, completes or alters a [specified] written instrument or issues or possesses any [such] written instrument which he knows to be forged." Conn. Gen.Stat. § 53a-139. The fact that Connecticut punishes a given act under the rubric of "forgery" is not dispositive of whether a conviction under that statute is "an offense relating to ... forgery" under the federal definition; absent clear evidence to the contrary, we presume that Congress did not intend the meaning of the INA to hinge on state law. See Sui, 250 F.3d at 114 (citing Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir.2001)) (holding that "[t]he language of [the INA] must be construed to have the meaning intended by Congress, not the [state] legislature"). There is no readily available federal definition of "forgery" or an offense "relating to ... forgery," however. The terms are not defined at § 1101(a)(43)(R) or elsewhere in the INA; so far as we are aware, the BIA has not settled on a general interpretation of either of these terms as employed at § 1101(a)(43).3 Nor, as the Third Circuit observed in Drakes, has Congress defined the term "forgery" in any of the numerous criminal statutes in which the term appears. See Drakes, 240 F.3d at 249 (reviewing federal statutes addressing forgery).
9

In general, when a federal statute uses, but does not define, a term of art that carries an established common law meaning, we will give that term its common law definition (unless, again, Congress has clearly evinced intent to the contrary). Moskal v. United States, 498 U.S. 103, 114, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); see, e.g., Drakes, 240 F.3d at 249 (examining common law definition of forgery for the purpose of determining whether Delaware statute constituted "an offense relating to ... forgery" under § 1101(a)(43)(R)). The sparse case law discussing the scope of forgery at common law tends to support Richards' contention that forgery itself requires a "false making." Gilbert, 370 U.S. at 656, 82 S.Ct. 1399 (internal quotation and citation omitted); see also United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981) ("Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy."); United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960) (noting that "an essential element of the crime of forgery is making the false writing"); accord 36 Am.Jur.2d Forgery § 1 (2001) (defining forgery as "the fraudulent making or alteration of a writing to the prejudice of another's rights"); 37 C.J.S. Forgery § 2 (1997) (defining forgery as the "false making or materially altering ... of any writing"). In addition, the Model Penal Code, to which we have also referred for definitions of terms that the INA does not define, see Sui, 250 F.3d at 115, does not define "forgery" to include possessory offenses. Model Penal Code § 224.1 (1980).
10

Thus, if subparagraph (R) defined "aggravated felony" to include only "forgery" offenses, Richards' argument would present a close question. But the aggravated felony definition encompasses "offense[s] relating to ... forgery." 8 U.S.C. § 1101(a)(43)(R). In Kamagate v. Ashcroft, decided subsequent to the district court's decision and the briefing of this appeal, we considered whether conviction under a federal counterfeiting statute for possession of counterfeit securities was "an offense relating to counterfeiting" under subparagraph (R). 385 F.3d at 153-56. In holding that § 1101(a)(43)(R) encompassed the possessory crime, we rejected a narrow interpretation of the term "relating to" under which it would reach only crimes involving counterfeiting itself. Id. In particular, we relied on the Supreme Court's analysis of the term "relating to" in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), in which the Court observed that Black's Law Dictionary defines the words expansively: "`to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Kamagate, 385 F.3d at 154 (quoting Morales, 504 U.S. at 383, 112 S.Ct. 2031 (quoting Black's Law Dictionary 1158 (5th ed.1979)) (further internal quotation marks omitted)). We also looked to the BIA's interpretation of the phrase "relating to a controlled substance" in the predecessor statute to 8 U.S.C. § 1227(a)(2)(B)(I). Id. (citing In re Beltran, 20 I. & N. Dec. 521, 525-26 (BIA 1992) ("[T]he phrase `relating to' ... has long been construed to have broad coverage.... Congress intended to give inclusive meaning in the immigration laws to the phrase `relating to.'")). Finally, we indicated our agreement with the Ninth Circuit's conclusion in Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir.2000), that the inclusion of the term "relating to" in subsection (R) "`necessarily' signaled Congress's intent to cover `a range of activities beyond those of counterfeiting or forgery itself,'" including those activities made illegal in order to discourage counterfeiting or forgery "`through the criminalization of the use of [their] end product [s].'" Kamagate, 385 F.3d at 155 (quoting Albillo-Figueroa, 221 F.3d at 1073).
11

The analysis in Kamagate controls the result here: Criminalization of possession of forged instruments with the intent to deceive, defraud or injure, like possession of counterfeit instruments with similar intent, discourages the underlying crime. Cf. 18 U.S.C. §§ 477, 480 (criminalizing possession of specified forged instruments); Cal.Penal Code § 475 (same); Del.Code Ann. tit. 11, § 861 (same); Idaho Code § 18-3603 (same); Me.Rev.Stat. Ann. tit. 17-A § 703 (same). Even if possession of a forged instrument with intent to defraud, deceive or injure is not "forgery" as defined at common law, it is unarguably an offense "relating to" forgery within the broad construction we have given that term.4 See Kamagate, 385 F.3d at 154-56; see also Drakes, 240 F.3d at 250 (reaching the same conclusion with respect to a materially identical Delaware statute). We therefore hold that Connecticut General Statute § 53a-139 punishes only conduct that is covered by 8 U.S.C. § 1101(a)(43)(R), and that a conviction under this statute for which a sentence of one year or more is imposed constitutes an aggravated felony.

CONCLUSION
12

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Notes:
1

Richards also contested the BIA's determination that he was removable for the assault conviction. The government conceded that the assault conviction no longer constituted a ground for removal under this Court's opinion inChrzanoski v. Ashcroft, 327 F.3d 188, 197 (2d Cir.2003). Thus, the district court focused exclusively on whether Richards was subject to removal for the forgery conviction. That is the only issue presented in this appeal.
2

Although federal courts lack jurisdiction directly to review final removal orders entered on the basis of conviction for an aggravated felony, they retain jurisdiction under § 2241 to review whether an alien has, as a matter of law, committed such an aggravated felonyKamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir.2004); Kuhali v. Reno, 266 F.3d 93, 99 (2d Cir.2001); see 8 U.S.C. § 1252(a)(2)(C).
3

In both the instant case and inIn re Aldabesheh, 22 I. & N. Dec. 983, 987 (1999), the BIA determined that a given state offense met the definition of an "offense relating to ... forgery" without elaborating in any way on the meaning of that term.
4

As the district court correctly found, Richards' contention that conviction under § 53a-139 requires only knowing possession of forged instruments is a patent misreading of the statute. The phrase "with intent to defraud, deceive or injure" in § 53a-139 modifies both the "make [ ], complete[] or alter[ ]" clause and the "possess[ ]" clauseSee State v. DeCaro, 252 Conn. 229, 745 A.2d 800, 811 (2000) (noting that "[a] defendant may be found guilty of forgery in the second degree ... if the state establishes that the defendant, with intent to deceive another, falsely made, possessed or altered a written instrument that he knew to be forged" (emphasis added)); State v. Henderson, 47 Conn.App. 542, 706 A.2d 480 (1998) (squarely so holding); cf. State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (so holding with respect to materially identical third-degree forgery statute). We express no view on the considerably more difficult question of whether a statute that punished mere knowing possession of a forged instrument would be an offense "relating to ... forgery."

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANALIEFO ANTHONY OKOLOJI, : 3:07cv24(WWE)
Petitioner, ::
v. :
:
MICHAEL CHERTOFF, et al., :
Respondents. :

RULING ON PETITION FOR WRIT OF MANDAMUS

The petitioner, Analiefo Anthony Okoloji, has brought a petition for mandamus seeking to compel adjudication of his application for citizenship. Respondents assert that the action is moot since petitioner’s application has now been adjudicated. For the following reasons, the petition for writ of mandamus is denied.


BACKGROUND

On May 23, 2005, petitioner filed a Form N-400 application for citizenship. On October 31, 2005, petitioner was interviewed by a District Adjudication Officer concerning his eligibility for naturalization. On December 9, 2005, the United States Citizenship and Immigration Service (“USCIS”) denied the petitioner’s N-400 application on the basis of petitioner’s unpaid taxes.

On January 5, 2006, petitioner filed a Request for a N-336 Hearing on a Decision in Naturalization Proceedings. On May 19, 2006, petitioner attended a hearing on his N-336 application, at which time he was requested to provide further information. Petitioner submitted that requested information.

On January 5, 2007, petitioner filed this complaint for mandamus relief,requesting this Court to compel the respondents to adjudicate the petitioner’s Form N-400 and Form N-366 applications.

In February 2007, respondents sent petitioner a decision on his Form N-366 request for a hearing, adhering to its previous decision to deny his N-400 application for naturalization.

The decision stated:
Information submitted by you indicated that you set up a payment plan in 2003 to address the issue of these overdue taxes. While the information you submitted overcomes the allegation that back taxes were not fully addressed until 2005, it still does not indicate that the debts from 2000, 2001, and 2002 tax years were addressed timely. A review of the tax transcripts that you submitted reveals that on July 19, 2003, an “Intent to Levy Collection Due Process Notice” was issued to you. This notice was issued as a result of your failure to timely pay taxes that were owed from previous tax years. Furthermore, the tax transcripts submitted throughout the statutory period reflect that you were subject to several “failure to pay” tax penalties. Failure to pay owed taxes is an unlawful act that adversely reflects upon your moral character.

In light of the lack of evidence concerning any extenuating circumstances that would have caused petitioner’s failure to pay taxes timely, the USCIS found that plaintiff had not sustained his burden of proof to establish good moral character during the statutorily prescribed period.

DISCUSSION
Petitioner seeks judicial determination of his naturalization application and a declaration that he is entitled to be naturalized. He argues that this Court retains exclusive jurisdiction over the matter and should disregard respondents’ decision. The Court assumes for purposes of this ruling that petitioner’s reliance on §1447(b) is proper.

Petitioner has brought this mandamus action pursuant to 8 U.S.C. § 1447(b),
which provides, in relevant part1:
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instruction, to the service to determine the matter.

Respondents set forth that the case is moot since petitioner’s application has been adjudicated. When a case is moot, this Court is divested of subject matter jurisdiction due to the lack of case or controversy. Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005).

Petitioner’s argument in favor of this Court’s exclusive jurisdiction relies upon United State v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004). Hovespian held that once a petitioner has filed a complaint pursuant to section 1447(b), the district court retains exclusive jurisdiction; therefore, a subsequent decision of USCIS adjudicating a petitioner’s application does not render the case moot. Id. at 1164. However, recent decisions have held that the district court and USCIS hold concurrent jurisdiction over the matter after § 1447 (b) is invoked. Al-Saleh v. Gonzales, 2007 WL 990145 (D.Utah 2007); Perry v. Gonzales, 2007 WL 293424 (D.N.J. 2007).

In this instance, denial of the mandamus petition is appropriate according to either view of § 1447(b)’s effect. If concurrent jurisdiction exists, the Court finds that the case has been adjudicated and is therefore moot. If exclusive jurisdiction is proper, petitioner has not provided this Court with any legal or evidentiary ground to find differently from the USCIS’ decision on the merits.

CONCLUSION
For the foregoing reasons, the petition for mandamus relief is DENIED. The
clerk is instructed to close this case.

Dated this 25th day of June, 2007, in Bridgeport, Connecticut.
_____________/s/_____________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

2d Cir says CT conviction for larceny in form of defrauding public community is a Crime Involving Moral Turpitude (CIMT)

Mendez v. Mukasey (2d Cir. 11/6/08, no. 07-1114-ag)

KATZMANN, Sack, Rakoff

Petitioner argued that her CT conviction for first degree larceny in the form of "defrauding a public community" was not a crime involving moral turpitude. The 2d Circuit reviewed the Board's determination that the crime was a CIMT de novo, according no deference to the Board's construction of state criminal statutes. See Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). However, the court also found that the crime was a CIMT and denied the petition.

The court applied the modified categorical approach, finding that the statute under which Petitioner was convicted was divisible and thus looking to the record of conviction - which evidenced a conviction for larceny by defrauding a public community. Petitioner argued that this conviction - under Conn. Gen. Stat. 53a-119(6) - was not a CIMT because the state did not need to prove an intent to defraud in order to obtain a conviction under this particular subsection of the statute. She argued that the statutory language in 53a-119 defining larceny as "wrongfully tak[ing]" property from another "with intent to deprive" that person of the property was simply prefatory language and that a person could be convicted under (6) without either an intent to defraud or prejudice the government. The court rejected this argument, finding in accordance with an earlier decision, Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) that the "intent to deprive" language in 53a-119 was mandatory throughout the statute's subsections. Although Abimbola did not control the case at hand as it dealt with third degree larceny, dicta in Abimbola recognized that the intent to deprive requirement also applied to first and second degree larceny.

Finally, the court rejected Petitioner's arguments that the CT Appellate Court's decision in State v. Robins vitiated the statutory requirement of intent, finding that Robins stood for the much narrower proposition that the state need not prove that a person making a fraudulent claim otherwise would not be entitled to benefits. In addition, the court found that while not every offense under the CT larceny statute constitutes a CIMT, defrauding a public community does since the temporary v. permanent taking distinction that applies to theft does not apply to offenses involving an intent to defraud. See Wala v. Mukasey, 511 F.3d 102(2d Cir. 2007).

PFR denied.