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Forging Public Record Is ‘Aggravated Felony’

The 4th Circuit denies a Bolivian citi­zen’s petition for review of a decision that he is ineligible for cancellation of removal from the U.S., upholding a Board of Im­migration Appeals’ determination that petitioner’s Virginia conviction for forging a public record was an aggravated felony under the Immigration and Nationality Act.

On appeal, petitioner challenges the BIA determination, arguing that Virgin­ia forgery does not “relate to” the federal generic definition of forgery. We conclude that forgery under Va. Code § 18.2-168 is an aggravated felony under the INA be­cause it is a categorical match with the federal generic definition of forgery; the state and federal forgery crimes neces­sarily relate to one another. We deny the petition for review and deny as moot the government’s request to remand this case to the BIA.

One commits generic federal forgery only where a document is invalid or false­ly executed. If the document is genuinely executed but merely contains false infor­mation, a conviction for federal forgery cannot lie. Virginia Code § 18.2-168 does not define “forgery,” but Virginia courts have defined forgery using the same defi­nition set forth in U.S. v. Jones, 553 F.2d 351 (4th Cir. 1977): the false making or materially altering with intent to de­fraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.

To prove forgery of a public record in Virginia, the commonwealth must demon­strate that the defendant’s conduct al­tered the genuineness and authenticity of the allegedly forged document, making it not in fact what it purports to be.

Virginia courts have drawn a distinc­tion between fraud that results in an in­valid document that is not actually what it purports to be (forgery), and a genuine document that contains false information or is used in a fraudulent manner (not forgery). Petitioner has given us no reason to conclude that Virginia would apply its statute to conduct that falls outside the generic definition of forgery. Virginia does not treat genuine documents containing false statements as forged documents. The way in which the Virginia courts have defined “forgery” fits within the generic federal definition of forgery, and the state statute shares the nature of the federal offense.

Petition for review denied.

Alvarez v. Lynch (Thacker) No. 15-1599, July 7, 2016; On Petition for Review; Bri­an R. Murray for petitioner; Christina P. Greer, USDOJ, for respondent. VLW 016- 2-117, 19 pp.

VLW 016-2-117

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