Aggravated Felonies

The aggravated felony statute includes “an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year.”[405]  The forgery ground therefore requires the following elements:

            (1)  a conviction of an offense

            (2)  relating to

            (3)  forgery

            (4)  for which the term of imprisonment is at least one year.

This aggravated felony is not defined by reference to a federal statute, and the BIA has yet to adopt a “generic” definition of the offense.[406]  However, given the “related to” language,[407] the courts to address this section have read it broadly.

In Richards v. Ashcroft,[408] for example, the Second Circuit held that a Connecticut conviction of possession of a forged document with intent to defraud, deceive, or injure,[409] was “an offense relating to . . . forgery.”  The court noted that there was no specific referenced definition of “forgery,” and looked to common law to find that “[c]ommon 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.”[410]

Although recognizing that the common law definition of forgery did not include possession of a forged document, the court found that offense to be “related to” forgery.  “[T]he 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].”[411]

[405] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[406] See § § 4.34-4.36, supra.

[407] See § 4.37, supra.

[408] Richards v. Ashcroft, 400 F.3d 125 (2d Cir. Mar. 3, 2005).

[409] Conn. Gen. Stat. § 53a-139.

[410] Id. at 128-129, citing United States v. McGovern, 661 F.2d 27, 29 (3d Cir. 1981).

[411] Id. at 192, quoting from Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000), Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir. 2004) (internal quotation marks omitted).