NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2398
___________
RICHARD CARRINGTON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A042-303-040 )
Immigration Judge: Honorable Andrew R. Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 23, 2011
Before: FUENTES, GREENAWAY, JR. and ROTH, Circuit Judges
(Opinion filed: April 5, 2011)
___________
OPINION
___________
PER CURIAM
Richard Carrington petitions for review of a decision of the Board of
Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s
(“IJ”) final removal order. For the reasons below, we will deny the petition for review.
1
I.
Carrington is a native and citizen of Barbados. He was admitted to the United
States as a Legal Permanent Resident in August 1991. In 1997, he pled guilty to and was
convicted of forgery in Pennsylvania state court. He was sentenced to twenty-three
months of imprisonment, with immediate parole given at the time of sentencing. In
August 2009, the Department of Homeland Security served Carrington with a Notice to
Appear (“NTA”), charging him with removability for having committed an aggravated
felony, see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been
convicted of two or more crimes involving moral turpitude, see INA § 237(a)(2)(A)(ii)
[8 U.S.C. § 1227(a)(2)(A)(ii)].
On November 16, 2009, after being afforded two continuances to obtain an
attorney or representative of his choosing, the IJ proceeded with Carrington’s hearing and
he admitted the allegations in the NTA. The IJ found Carrington removable as charged
under INA § 237(a)(2)(A)(iii), as defined in INA § 101(a)(43)(R) [8 U.S.C. §
1101(a)(43)(R)], based on his forgery conviction. However, the IJ found that Carrington
was not removable under INA § 237(a)(2)(A)(ii). Accordingly, the IJ concluded that
Carrington was not eligible for discretionary relief from removal and ordered him
removed to Barbados.
Carrington timely appealed the decision to the BIA and, on April 12, 2010, the
BIA dismissed the appeal, noting that Carrington had not filed any relief applications.
The BIA concluded that the IJ was correct in finding that Carrington’s record of
conviction for forgery, for which the term of imprisonment was at least one year,
2
constituted an aggravated felony under INA § 101(a)(43)(R). Carrington has petitioned
for review of the BIA’s decision.
II.
We have jurisdiction over Carrington’s petition for review under 8 U.S.C. §
1252(a)(2)(D).1 Although 8 U.S.C. §1252(a)(2)(C) limits our jurisdiction over final
decisions ordering removal based on the commission of an aggravated felony, we retain
jurisdiction over constitutional claims and questions of law. See Leslie v. Att’y Gen.,
611 F.3d 171, 174 (3d Cir. 2010) (citing 8 U.S.C. §1252(a)(2)(D) and Papageorgiou v.
Gonzales, 413 F.3d 356, 358 (3d. Cir. 2005)). The question whether a particular
conviction constitutes an aggravated felony is a legal question that we review de novo.
Jeune v. Att’y Gen., 476 F.3d 199, 201 (3d Cir. 2007).
Despite Carrington’s arguments to the contrary, the BIA properly concluded that
he was convicted of an aggravated felony. The statutory definition of aggravated felony
includes “an offense relating to . . . forgery . . . for which the term of imprisonment is at
least one year.” INA § 101(a)(43)(R). In Drakes v. Zimski, 240 F.3d 246, 250-51 (3d
Cir. 2001), we concluded that a violation of the Delaware forgery statute, which
encompassed more conduct than the traditional definition of forgery by including an
intent to deceive or injure, in addition to an intent to defraud, constituted an aggravated
felony. We further concluded that Congress intended to define forgery in its broadest
sense by stating that an offense “relating to” forgery qualifies as an aggravated felony.
1
We reject the Government’s argument that the petition for review was untimely
filed.
3
Id. At 249. Like Delaware’s statute, Pennsylvania’s forgery statute also includes the
intent to defraud or injure. See 18 Pa. Cons. Stat. § 4101(a).
Carrington also argues that his conviction is not an aggravated felony as defined
under the INA because he was not sentenced to a term of imprisonment of at least one
year, as is required under § 101(a)(43)(R). Specifically, he claims that although he was
sentenced to a maximum term of twenty-three months of imprisonment, he was
immediately paroled at the time of his sentencing. However, the BIA properly held that §
101(a)(43)(R) refers to the sentence imposed, not the time actually served, in determining
whether a criminal conviction is an aggravated felony under the INA. See, e.g., United
States v. Maldonado-Ramirez, 216 F.3d 940, 943-44 (11th Cir. 2000).
The BIA also properly held that, for immigration purposes, the type of
indeterminate sentence that Carrington received is treated as functionally equivalent to a
sentence with only a maximum term. “Under Pennsylvania law, the minimum term
imposed on a prison sentence merely sets the date prior to which a prisoner may not be
paroled.” Rogers v. Pa. Bd. Of Probation & Parole, 724 A.2d 319, 321 n.2 (Pa. 1999).
The maximum range, therefore, controls whether the term of imprisonment is at least one
year. See Bovkun v. Ashcroft, 283 F.3d 166, 170-71 (3d Cir. 2002). Under Bovkun,
Carrington’s maximum term of twenty-three months is sufficient to qualify as an
aggravated felony under INA § 101(a)(43)(R).2 Thus, we conclude that Carrington was
2
We also reject Carrington’s contention that because the loss to the victim in his
case totals less than $10,000, his forgery offense does not qualify as an aggravated
felony. Although his argument is not well developed, he appears to assert that his
conviction is also encompassed by INA § 101(a)(43)(M). That provision, in
4
properly found removable for having been convicted of an aggravated felony as defined
in INA § 101(a)(43)(R).
Lastly, Carrington argues that his due process rights were violated because the
agency did not provide him with fair notice of the charges against him. Specifically, he
argues that although the NTA correctly charged him with removability for having been
convicted of forgery pursuant to 18 Pa. Cons. Stat. § 4101(a)(1), the IJ indicated in his
opinion that Carrington had been convicted of forgery under subsections (a)(2) and (a)(3)
of the statute. The BIA concluded, and we agree, that Carrington was put on fair notice
of the charges against him and that any errors were harmless and did not result in any
prejudice to him. Indeed, it is § 4101(a) that renders any subsection (i.e., (a)(1), (a)(2), or
(a)(3)) of the statute an aggravated felony. 3
The NTA clearly indicates that Carrington was removable for having been
convicted under § 4101(a). Moreover, we agree with the BIA that Carrington has failed
relevant part, refers to an offense that “involves fraud or deceit in which the loss to
the . . . victim [ ] exceeds $10,000 . . .” However, the argument is foreclosed by
our holding in Bobb v. Att’y Gen., 458 F.3d 213, 226 (3d Cir. 2006), wherein we
determined that that forgery is not a hybrid offense because “the class ‘offense
related to forgery’ is not entirely a subset of the class ‘offense involving fraud.’”
3
Section 4101(a) provides: A person is guilty of forgery if, with intent to defraud
or injure anyone, or with knowledge that he is facilitating a fraud or injury to be
perpetrated by anyone, the actor: (1) alters any writing of another without his
authority; (2) makes, completes, executes, authenticates, issues or transfers any
writing so that it purports to be the act of another who did not authorize that act, or
to have been executed at a time or place or in a numbered sequence other than was
in fact the case, or to be a copy of an original when no such original existed; or
(3) utters any writing which he knows to be forged in a manner specified in
paragraphs (1) or (2) of this subsection. 18 Pa. Cons. Stat. § 4101(a).
5
to allege, let alone demonstrate that, even if an error were found, he suffered substantial
prejudice. See Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005) (requiring a
showing of substantial prejudice to prevail on a due process challenge). 4
For the above reasons, we will deny the petition for review.
4
We lack jurisdiction to review Carrington’s argument that he is actually innocent
of forgery under Pennsylvania law.
6