PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-3816 & 17-1705
_____________
RAMON ANDREW WILLIAMS
a/k/a Andrew Denton Williamson
a/k/a Ramon Williams,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF
AMERICA,
Respondent
____________________________________
On Petitions for Review of Orders of the
Board of Immigration Appeals
Agency No: A018-687-061
Immigration Judge: Leo A. Finston
____________________________________
Argued November 8, 2017
Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge,
and BRANN, District Judge*
(Opinion Filed: January 19, 2018)
Thomas H. Lee, II
Argia J. DiMarco
Ryan M. Moore
Christopher J. Mauro [ARGUED]
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Seymour James, Jr.
Adriene Holder
Maria E. Navarro
Hasan Shafiqullah
Ward Oliver
Sarah Gillman
Whitney W. Elliott
Legal Aid Society
Immigration Law Unit
199 Water Street
3rd Floor
New York, NY 10038
*
The Honorable Matthew W. Brann of the United States
District Court for the Middle District of Pennsylvania, sitting
by designation.
2
Counsel for Petitioner
Chad A. Readler
Acting Assistant Attorney General
Terri J. Scadron
Assistant Director
Shahrad Baghai
Christina Greer [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION
________________
SMITH, Chief Judge.
In this consolidated proceeding, Ramon Williams asks
us to consider whether a prior conviction under Georgia’s
forgery statute, Ga. Code Ann. § 16-9-1(a) (2006), constitutes
an aggravated felony conviction for purposes of the
Immigration and Naturalization Act (“INA”). See 8 U.S.C.
§ 1227(a)(2)(A)(iii). Because we conclude that the Georgia
3
conviction is an offense “relating to . . . forgery,” 8 U.S.C.
§ 1101(a)(43)(R), Williams is properly subject to removal as
an aggravated felon, and we will therefore deny the petitions
for review.
I.
Williams, a citizen of Guyana and a lawful permanent
resident of the United States, immigrated to this country in
1970, when he was thirteen months old. He has no family in
Guyana; his parents, grandparents, siblings, and children are
all United States citizens. In 2006, he pleaded guilty in
Georgia state court to five counts of first degree forgery
pursuant to section 16-9-1(a) of the Georgia Code. He initially
received a sentence of two years in prison, which later was
reduced to one year.
In 2013, Williams received a notice to appear charging
him as removable as a result of having been convicted of an
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii).
Appearing before an Immigration Judge (“IJ”) in New Jersey,
he contested removability.1 The IJ determined that the Georgia
forgery conviction rendered Williams deportable as an
aggravated felon and otherwise denied relief. Williams
appealed to the Board of Immigration Appeals (“BIA”).
1
Williams also sought asylum, withholding of removal,
and relief under the Convention Against Torture. The IJ
denied these forms of relief and the Board of Immigration
Appeals (“BIA”) affirmed. Williams does not challenge
the denial of those claims in his petitions before this Court.
4
Before the BIA, he argued, inter alia, that the Georgia forgery
statute is broader than generic forgery because it criminalizes
the use of a fictitious name when signing a document and
because the statute does not require a showing of prejudice.
The BIA rejected these arguments, upheld the IJ’s decision,
and dismissed the appeal.
Williams timely filed a petition for review, and also
sought reconsideration before the BIA in light of the Supreme
Court’s decision in Mathis v. United States, 136 S. Ct. 2243
(2016). In his motion for reconsideration, Williams argued that
Georgia’s forgery statute is indivisible under Mathis and is
overbroad because it criminalizes some conduct that does not
relate to forgery, namely, false agency endorsements. The BIA
denied the reconsideration motion, and Williams timely filed a
second petition for review.
The petitions have been consolidated. We have
jurisdiction over them pursuant to 8 U.S.C. § 1252(a).
II.
The issue of whether Williams’s conviction under the
Georgia forgery statute qualifies as an aggravated felony is a
question of law over which we have jurisdiction. Id. §
1252(a)(2)(D). We conduct a de novo review of the BIA’s
determination. Denis v. Atty. Gen., 633 F.3d 201, 209 (3d Cir.
2011); Bobb v. Atty. Gen., 458 F.3d 213, 217 (3d Cir. 2006).
III.
The INA provides for the deportation of an alien “who
is convicted of an aggravated felony.” 8 U.S.C.
5
§ 1227(a)(2)(A)(iii). The INA’s definition of an “aggravated
felony” encompasses an extensive list of various types of
offenses, see id. § 1101(a)(43)(A)–(U), but for current
purposes, only one definition is pertinent: an “aggravated
felony” is “an offense relating to . . . forgery . . . for which the
term of imprisonment is at least one year.” Id.
§ 1101(a)(43)(R). In his petitions for review, Williams calls
upon us to consider whether the BIA was correct when it
determined that his 2006 conviction under Georgia’s forgery
statute, for which he was imprisoned for a year, is an “offense
relating to forgery.”
A.
At the time of Williams’s conviction, Georgia’s
forgery statute provided:
A person commits the offense of forgery in the
first degree when with intent to defraud he
knowingly makes, alters or possesses any writing
in a fictitious name or in such manner that the
writing as made or altered purports to have been
made by another person, at another time, with
different provisions, or by authority of one who
did not give such authority and utters or delivers
such writing.
Ga. Code Ann. § 16-9-1(a) (2006). The Georgia legislature’s
decision to denote this offense as “forgery” does not dictate
whether it comes within the meaning of forgery as Congress
intended it in the INA. Drakes v. Zimski, 240 F.3d 246, 248
6
(3d Cir. 2001) (“The language of a federal statute must be
construed to have the meaning intended by Congress, not the
[state] legislature.”). To make that assessment, we employ
what is known as the “categorical approach.”2 See Moncrieffe
v. Holder, 569 U.S. 184, 190 (2013).
2
While this is the general rule, certain disjunctively-
worded statutes that set forth a number of separate crimes
warrant a departure from the categorical approach known
as the “modified categorical approach.” Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016); see Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013). When it applies, the
modified categorical approach permits a court to consult a
limited set of documents, such as an indictment, guilty
plea, or jury instructions, to determine which specific
offense is at issue in the case. Moncrieffe, 569 U.S. at 191.
In Mathis, 136 S. Ct. at 2248–50, the Supreme Court
provided guidance regarding how to determine whether a
disjunctively-worded state statute sets forth an
“indivisible” set of elements defining a single crime—but
listing several different means of satisfying the elements
of the crime—to which the strict categorical approach
applies, or a “divisible” list of elements in the
alternative—thereby defining multiple separate crimes—
to which the modified categorical approach applies.
Georgia’s forgery statute is undoubtedly disjunctive and,
initially, the issue of its divisibility or indivisibility under
Mathis was hotly contested. At oral argument, however,
the Government conceded its agreement with Williams’s
7
Under the categorical approach, we look to the
substance of the statute of conviction to determine whether it
categorically fits within the “generic” federal definition of the
corresponding aggravated felony, without considering the facts
of the particular case. Id.; see also Mathis, 136 S. Ct. at 2249
(“The comparison of elements that the categorical approach
requires is straightforward . . . . The court . . . lines up that
crime’s elements alongside those of the generic offense and
sees if they match.”). We thus compare the state and federal
offenses “in the abstract,” consulting only their respective
elements to determine whether the state conviction
“necessarily involved facts equating to the generic federal
offense.” Moncrieffe, 569 U.S. at 190 (internal quotation
marks and alterations omitted) (quoting Shepard v. United
States, 544 U.S. 13, 24 (2005)).
Before we may conduct this comparison, we must
consider what constitutes the “generic federal offense” of
forgery. See id. As we observed in Drakes v. Zimski, Congress
has not articulated a specific definition for the term. 240 F.3d
at 249. “Where federal criminal statutes use words of
established meaning without further elaboration, courts
typically give those terms their common law definition.” Id.
As we have long held, the traditional common law definition
of forgery has three elements: “(a) The false making or
view that the statute defines a single crime and is therefore
indivisible, warranting the application of the categorical
approach. Accordingly, for our purposes, we assume
without deciding that the parties are correct that the
categorical approach applies.
8
material alteration (b) with intent to defraud (c) of a writing
which, if genuine, might be of legal efficacy.” United States v.
McGovern, 661 F.2d 27, 29 (3d Cir. 1981). Moreover,
because the INA applies not only to forgery, but also extends
to offenses “relating to” forgery, we have concluded that
Congress intended to define forgery “in its broadest sense.”
Drakes, 240 F.3d at 249.
Here, however, the definition of the term “forgery” is
not enough, on its own, to answer the question of whether the
crime defined in section 16-9-1 of the Georgia Code is “an
offense relating to forgery” within the meaning of the INA.
Accordingly, in comparing the generic federal offense to the
Georgia statute, we employ a “looser categorical approach.”
Flores v. Atty. Gen., 856 F.3d 280, 286 (3d Cir. 2017)
(applying this approach in analyzing whether an alien had been
convicted of offenses “relating to obstruction of justice”).
Under this looser approach, we do not require a precise match
between the elements of the generic federal crime and those of
the Georgia offense. Id. at 291. Instead, we “survey the[ir]
interrelationship” and consider whether there is “a logical or
causal connection” between them. Id. (quoting Denis, 633
F.3d at 212). We may conclude that the crimes are logically
connected if they both “target the same, core criminal conduct
such that they are ‘directly analogous.’” Id. And, we may
conclude that the crimes are causally connected where there is
a “link between the alien’s offense and a listed federal crime:
without the listed federal offense, the alien’s offense could not
have occurred.” Id. Because the parties agree that there is no
“causal connection” between the federal and state crimes under
discussion here, our focus is the “logical connection” between
them.
9
B.
Williams’s primary claim is that the Georgia forgery
statute is broader than the federal common law definition of
forgery because it punishes the possession of certain “genuine”
documents, namely, documents that “purport[ ] to have been
made . . . by authority of one who did not give such authority.”
Ga. Code Ann. § 16-9-1(b). Williams refers to this aspect of
the Georgia statute as “false agency endorsement,” which, he
argues, is conduct that does not fall within the traditional
common law definition of forgery.
As a threshold matter, the Government argues that,
although false agency endorsement may technically fall within
the Georgia statute’s language, Georgia does not actually
prosecute false agency endorsement as forgery. Accordingly,
the Government claims, Williams has established no more than
a “theoretical possibility” that Georgia would apply its statute
to conduct falling outside the federal definition of forgery. See
Singh, 839 F.3d at 278.
Williams responds that there is Georgia case law
demonstrating that the State actually prosecutes false agency
endorsement as forgery, citing Warren v. State, 711 S.E.2d 108
(Ga. Ct. App. 2011). In Warren, a business manager of a
medical practice used business checks to pay personal credit
card debt without the authorization of her employer. The Court
of Appeals of Georgia concluded that the evidence was
sufficient to support her conviction of first degree forgery
because it showed that, “with intent to defraud the doctor and
his medical practice, she knowingly possessed fifty-two checks
drawn on the practice’s bank account without authority, and
10
uttered the checks as payment on her personal credit card
debt.” Id. at 109.
In a supplemental appendix, Williams provided a copy
of the Warren indictment as further support for his position that
the Georgia forgery statute is employed to prosecute false
agency endorsement. See S.A. 1–18. The indictment indicates
that the defendant was charged with first degree forgery for
signing her own name to a check, “purportedly on behalf of
[the medical practice] as an authorized signatory of [the
medical practice], but having not been written and signed with
the authority of [the medical practice and the doctor], and did
utter said check.” S.A. 2, Count 5. In other words, the Warren
defendant’s signature was her own but was made without
authorization of the principal, and therefore was a false agency
endorsement. Inasmuch as both the Warren indictment and the
opinion of the Court of Appeals of Georgia support Williams’
view, and the Government has not offered anything to rebut
that evidence, we conclude that Williams has established a
sufficiently “realistic probability” that Georgia would apply its
forgery statute to false agency endorsement. See Singh, 839
F.3d at 278 (quoting Moncrieffe, 569 U.S. at 191).
Next, Williams contends that, in contrast to the Georgia
statute, the federal common law definition of forgery does not
extend to false agency endorsement, making the Georgia
statute broader than the federal version of the crime. But
whatever the scope of forgery under federal law, Congress
expressly extended its coverage to offenses “relating to”
forgery. We must therefore resolve the question of whether the
Georgia statute’s inclusion of false agency endorsement
extends so far beyond the traditional common law definition
11
that it criminalizes conduct that is unrelated to forgery.
Employing the looser categorical approach, we conclude it
does not. See Flores, 856 F.3d at 286.
Williams argues that false agency endorsements do not
relate to forgery because they do not involve a “false
instrument,” and a false instrument, he contends, is at the core
of the federal common law crime. See Pet. Br. at 29. Although
a false instrument is an integral aspect of common law forgery,
we cannot agree with Williams’s argument that the falsity of
the instrument must appear on the face of the document in
order for an offense to “relate to” forgery. Even if facial falsity
is viewed as an essential element of common law forgery that
is missing from the provision of Georgia’s statute prohibiting
false agency endorsement, the omission of an essential element
simply does not resolve whether the conduct is “related” for
purposes of the INA. See Bobb, 458 F.3d at 219.
In conducting the necessary survey of the
interrelationship between common law forgery and false
agency endorsement, we are satisfied that, although their
elements do not line up with precision, the crimes share a
logical connection. See Flores, 856 F.3d at 291. We offer a
series of related examples to demonstrate the analogous nature
of the two crimes, taken from the example in Warren, the
Georgia case to which Williams refers.
First, we consider the most straightforward scenario: if
the defendant in Warren had signed her employer’s name
rather than her own name on the business checks, then we may
uncontroversially conclude that her act would fall within the
quintessential common law definition of forgery. The forged
12
instrument would, on its face, reflect the sort of falsity in
execution that Williams proposes is integral to the definition of
the common law crime—the use of a false name. Next, we
consider a slightly different but related scenario, in which the
defendant signs her true name to the employer’s checks under
the handwritten phrase “by authority of” her employer—
authority that was never granted. Much like the signing of a
false name, the falsity of the authorization would appear on the
face of the document, and we therefore presume that Williams
would agree that the defendant’s hypothetical act would be
related to forgery.3 Finally, consider the conduct for which the
Warren defendant actually was prosecuted: she signed her true
name to a check, implicitly under the authority of her
employer, but without writing the phrase “by authority of.” By
Williams’s logic, this third example would not be a “false
instrument” because there is no falsity on the document’s face,
and the defendant’s act therefore would no longer relate to
forgery. But, in our view, each of these incrementally different
acts is logically related to the same underlying core conduct.
See Flores, 856 F.3d at 291. Each example gives rise to
essentially the same concerns about the inauthenticity and
unauthorized nature of the written instrument. Thus, we think
Williams’s proposed approach of drawing a bright line at facial
3
We note that Williams has never contended that use of a false
name is the only manner in which a document can qualify as a
“false instrument” for purposes of common law forgery. At
oral argument, Williams contended that, for instance,
mimicking a company’s logo to create a false check would
qualify as the false making of a document and therefore is a
form of forgery.
13
falsity presents too fine a distinction given the broad “relating
to” language that Congress chose to employ in the INA. In
short, common law forgery and false agency endorsement
share a logical connection because they “target the same, core
criminal conduct such that they are ‘directly analogous.’” See
id.
The Government also points us to the Model Penal Code
and a number of state statutes employing the Model Penal
Code’s provisions as a source for a “broad minority definition”
of forgery that extends to false agency endorsement. See
Model Penal Code § 224.1(1)(b) (Am. Law Inst. 1985) (“A
person is guilty of forgery if, with purpose to defraud or injure
anyone, or with knowledge that he is facilitating a fraud or
injury to be perpetrated by anyone, the actor . . . 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 . . . .”); see also Iowa Code § 715A.2(1)(b)
(1996); N.J. Stat. Ann. § 2C:21-1(a)(2) (West 2002); 18 Pa.
Cons. Stat. § 4101(a)(2) (2003); Wyo. Stat. Ann. § 6-3-
602(a)(ii) (2007). We have observed that conduct falling
within a “broad minority definition” can be an appropriate
source of information for discerning whether conduct “relates
to” an offense for INA purposes. Drakes, 240 F.3d at 250. We
conclude that the Model Penal Code’s broad minority
definition of forgery buttresses our conclusion that false
agency endorsement shares a logical connection with common
law forgery.
To our knowledge, only one other Court of Appeals has
published a decision interpreting § 1101(a)(43)(R) in the
context of a state statute that, like the Georgia statute, defines
14
forgery in a manner that encompasses false agency
endorsement. In Vizcarra-Ayala v. Mukasey, 514 F.3d 870
(9th Cir. 2008), the Ninth Circuit noted, as we have, that the
Supreme Court and other Circuits have concluded that forgery
requires “falsification of a document or instrument,” making it
“clear that an essential element of the generic offense of
forgery is the false making or alteration of a document, such
that the document is not what it purports to be.” Id. at 875.
The Ninth Circuit then cited several cases in which California
had prosecuted individuals for “possession or use of a genuine
instrument with intent to defraud but not to forge,” in other
words, conduct falling outside the generic federal definition of
forgery. Id. at 876. And, it described one particular case in
which California prosecuted false agency endorsement under
its forgery statute: a defendant office manager took checks
from her employer and, rather than use them for purchasing
office supplies, made the checks out to “cash” and used the
proceeds for herself. Id. at 876–77. In that case, the checks
were genuine and the defendant’s signatures on them were
true. Id. at 877. According to the Ninth Circuit, this “made
her conduct fraud, but not forgery under the generic
definition.” Id.
Up to this point, we concur with the Ninth Circuit’s
analysis. But, we diverge from its ultimate conclusion: that the
California statute’s application to “genuine instrument[s],”
including false agency endorsements, means that it extends to
conduct that does not “relate to” forgery. Id. at 876–77.
Relying on a facial falsity premise much like the one Williams
proposes, the Ninth Circuit summarily concluded that
“[e]xpanding the definition of offenses ‘relating to’ forgery to
include conduct where documents are not altered or falsified
15
[would] stretch[] the scope too far.” Id. at 877. Because we
conclude that concerns about the inauthenticity or
unauthorized nature of a written instrument establish a logical
relationship between common law forgery and false agency
endorsement, we respectfully disagree with the premise that
the falsity of the instrument must be reflected on its face in
order for conduct to “relate to” forgery.
Another important distinction is the degree to which the
“relating to” language of § 1101(a)(43)(R) affects the analysis.
While in this Circuit it triggers the application of the “looser
categorical approach” and its “logical or causal connection”
test, Flores, 856 F.3d at 286, 291, the Ninth Circuit in
Vizcarra-Ayala acknowledged only that offenses with a causal
connection can “relate to” forgery (e.g., possession of a forged
document), but declined to afford logical connections like the
one at issue there the same treatment, see 514 F.3d at 877. The
Ninth Circuit’s test for whether a state offense “relat[es] to . . .
forgery” is more restrictive than this Court’s, and here, that
difference was outcome-determinative.
C.
Williams presents a secondary argument as to the
purported overbreadth of the Georgia forgery statute,
contending that the Georgia statute is missing a necessary
element of federal common law forgery: a requirement that the
forged instrument be “capable of effecting a fraud” or have
“legal efficacy.” Relatedly, Williams argues that the absence
of the “legal efficacy” element extends Georgia’s statute
beyond the commercial realm into merely “personal” acts and
16
such personal acts do not relate to forgery for purposes of the
INA.4
The Government retorts that Williams waived this
argument because he did not present it to the BIA. Williams
disagrees, pointing out that he argued before the BIA that the
Georgia statute “lacked a prejudice requirement,” an argument
that the BIA considered and rejected. See J.A. 43–44. While
acknowledging that he used different terminology, Williams
contends that his argument to the BIA—that the Georgia
statute lacks an element of “prejudice [to] another”—is
sufficiently similar to his argument to this Court—that the
Georgia statute lacks an element of being “capable of
prejudicing another’s rights.” Reply Br. at 19. He argues that
precision is not required and that his prejudice argument below
was sufficient to put the BIA on notice of the issue.
We accept that the claim presented on appeal is
sufficiently similar to the argument presented to the BIA to
satisfy the exhaustion requirement. Nonetheless, we are not
persuaded that it has merit. In Bobb, we observed that, “[a]t
4
Upon being questioned about the contours of this claim at oral
argument, Williams all but abandoned it, candidly
acknowledging that this was not his “primary argument” and
that the false agency endorsement claim presented a “much
closer question.” Oral Argument at 5:49–8:58, Williams v.
Atty. Gen., Nos. 16-3816, 17-1705 (3d Cir. Nov. 8, 2017).
Williams’s response was sufficiently equivocal to leave us
with some doubt as to whether this argument has been waived,
so we proceed to address its merits.
17
their core, all common law forgery offenses contain as an
element an intent to deceive.” 458 F.3d at 218. Analogously,
the Georgia forgery statute expressly sets forth an “intent to
defraud” as one element of the crime. Ga. Code Ann. § 16-9-
1(a). These intent elements are “directly analogous” and target
the “same core criminal conduct.” See Flores, 856 F.3d at 291.
To the extent Williams contends that the common law
definition goes a step further by looking to the potential effect
of the forged instrument on its victim rather than the intent of
the forger alone, such a minute distinction does not carry the
day. Even apart from our skepticism about this claim, in Bobb,
we observed that a state criminal statute can relate to forgery
even where it “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.” 458 F.3d at 219.
Thus, so long as the Georgia statute covers conduct that is
logically or causally connected to forgery—which,
undoubtedly, it does—it is of no moment that a supposed
additional “essential element” of the generic federal definition,
such as the ability of the forged instrument to cause harm to a
victim, might theoretically be absent from the Georgia statute.
See id.
Moreover, there is no basis for concluding that the
Georgia statute lacks this element and therefore extends to
conduct that is purely “personal” or “non-commercial” in
nature. Notably, Williams offers no evidence to support his
contention that there is a “personal” version of forgery that
would be subject to prosecution in Georgia and yet be
exempted from the federal common law conception of fraud.
18
We see no “realistic probability” that the State would apply its
forgery statute in this manner. Singh, 839 F.3d at 278 (quoting
Moncrieffe, 569 U.S. at 191). Accordingly, Williams’s
argument fails.
IV.
For the foregoing reasons, these consolidated petitions
for review will be denied.5
5
In his brief, Williams offers a final argument, contending that
he should not be subject to removal because removal is a
punishment disproportionate to his crime and should be set
aside as unconstitutional under the Fifth or Eighth
Amendments of the United States Constitution. He stated,
however, that he offered the argument solely for the purpose of
preserving the issue for future review, acknowledging that we
are bound by our precedent holding that removal is not a
punishment and is therefore not subject to challenge as a
disproportionate punishment under the Fifth or Eighth
Amendment. Sunday v. Atty. Gen., 832 F.3d 211, 218–19 (3d
Cir. 2016). Relying upon Sunday, we will not further address
the proportionality argument.
19