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Bobb v. Atty Gen USA ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-3-2006
    Bobb v. Atty Gen USA
    Precedential or Non-Precedential: Precedential
    Docket No. 05-2891
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
    Recommended Citation
    "Bobb v. Atty Gen USA" (2006). 2006 Decisions. Paper 539.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/539
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-2891
    ALVIN BOBB,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    On Petition for Review from an
    Order of the Board of Immigration Appeals
    (Board No. A43 156 231)
    Immigration Judge R. K. Malloy
    Argued June 13, 2006
    Before: FISHER, ALDISERT and LOURIE,* Circuit Judges.
    *
    The Honorable Alan D. Lourie, United States Circuit
    Judge for the Federal Circuit, sitting by designation.
    (Filed: August 3, 2006)
    Steven A. Morley (Argued)
    Morley, Surin & Griffin
    325 Chestnut Street, Suite 1305-P
    Philadelphia, PA 19106
    Attorney for Petitioner
    Viveca D. Parker (Argued)
    Office of United States Attorney
    615 Chestnut Street
    Philadelphia, PA 19106
    Attorney for Respondent
    OPINION OF THE COURT
    FISHER, Circuit Judge.
    Petitioner Alvin Bobb, a lawful permanent resident,
    pleaded guilty to forging a check in the amount of $13,277, in
    violation of 18 U.S.C. § 510(a)(2), and was sentenced to four
    months imprisonment. An immigration judge (“IJ”) determined
    at Bobb’s bail hearing that his conviction was not an
    “aggravated felony” for purposes of removal, and the Board of
    Immigration Appeals (“BIA”) affirmed. At a subsequent
    removal hearing, however, a different IJ determined that the
    crime was an “aggravated felony,” which the BIA affirmed.
    That decision has dire consequences for Bobb’s efforts to
    2
    remain in the United States, as it renders him removable and
    precludes him from seeking discretionary relief from removal in
    the form of a readjustment of status.
    Our task is to determine whether Bobb’s conviction was
    an “aggravated felony.” In so doing, we must survey the
    interrelationship between two statutory provisions set forth
    under 8 U.S.C. § 1101(a)(43): subsection (M)(i), which states
    that an “aggravated felony” is “an offense . . . that involves
    fraud or deceit in which the loss to the victim exceeds $10,000”;
    and subsection (R), which states that “an offense relating to . . .
    forgery . . . for which the term of imprisonment is at least one
    year” is an “aggravated felony.” Bobb contends that the BIA
    erred in holding he committed an aggravated felony because
    subsection (R), which specifically references the crime of
    forgery and all related offenses, is the exclusively applicable
    aggravated felony provision for all forgery offenses. In the
    alternative, Bobb argues that his offense was a “hybrid offense”
    under our recent opinion in Nugent v. Ashcroft, 
    367 F.3d 162
    (3d Cir. 2004), and that the government accordingly should have
    been required to establish all the criteria specified by both
    subsections. Under either theory, Bobb’s conviction would not
    constitute an aggravated felony because subsection (R) includes
    a requirement that the alien have served a term of imprisonment
    of greater than one year.
    This appeal asks us to decide which “aggravated felony”
    definition applies to Bobb’s case – the “related to forgery”
    provision of subsection (R), the broad catch-all “fraud”
    provision of subsection (M)(i), or both. For the reasons set forth
    below, we conclude that the BIA did not err in determining that
    3
    Bobb’s underlying criminal conviction was an “aggravated
    felony” under subsection (M)(i), and that Bobb’s conviction was
    not a “hybrid offense” under Nugent. Accordingly, we will deny
    Bobb’s petition for review.
    I.
    Bobb is a native and citizen of Trinidad and Tobago who
    entered the United States as a lawful permanent resident on
    September 30, 1991. On December 18, 1995, Bobb forged a
    United States Treasury check in the amount of $13,277. He was
    subsequently charged with forging endorsements on treasury
    checks, in violation of 18 U.S.C. § 501(a)(2). Bobb pleaded
    guilty and was sentenced by the District Court on October 21,
    1999, to a term of imprisonment of four months.
    On December 14, 1999, the INS 1 issued Bobb a Notice
    to Appear, charging that he was subject to removal from the
    United States for committing an aggravated felony as defined
    under section 1101(a)(43)(M)(i) of the Immigration and
    Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(M)(i). On
    June 6, 2000, the INS lodged an additional deportation charge
    1
    On March 1, 2003, the INS ceased to exist as an agency
    of the Department of Justice. Pursuant to the Homeland
    Security Act of 2002, the enforcement functions of the INS were
    transferred to the Department of Homeland Security, Bureau of
    Immigration and Customs Enforcement (“BICE”).               See
    Homeland Security Act of 2002, Pub. L. No. 107-296, § 441,
    116 Stat. 2135, 2192.
    4
    against Bobb alleging a separate ground for removability: that
    he had been convicted of a crime involving moral turpitude
    committed within five years after his admission, and for which
    a sentence of one year or more imprisonment could be imposed.
    See 8 U.S.C. § 1227(a)(2)(A)(i). Bobb has conceded this second
    charge, see App. 11, but disputes the first charge that his
    conviction was an aggravated felony under subsection (M)(i).
    At Bobb’s initial bond hearing, an IJ concluded that
    Bobb’s offense was not an aggravated felony and that he
    therefore qualified for bond. (App. 33-37.) The IJ, noting that
    Congress had to have been aware when it enacted subsection (R)
    that “forgery is always fraud,” determined that including all
    forgery offenses in subsection (M)(i) would render subsection
    (R) surplusage unless Congress manifested a clear intention to
    have the general “fraud” provision govern over the specific
    “forgery” section. As a result, the IJ granted Bobb bond in the
    amount of $1,500.00, a decision which the BIA affirmed over
    the government’s appeal. (App. 37-38.)
    Following his release on bond, Bobb sought to terminate
    his removal proceedings in order to apply for a readjustment of
    status. As a lawful permanent resident married to a United
    States citizen, Bobb is eligible to petition BICE for a
    discretionary readjustment of status unless, inter alia, it is
    determined that he has committed an “aggravated felony.” See
    8 U.S.C. § 1182(h). The government countered Bobb’s motion
    by moving to pretermit Bobb’s application.
    A second IJ conducted removability proceedings and
    considered the motions.   The IJ noted that the prior
    5
    determination at the bond hearing that Bobb’s conviction was
    not an aggravated felony was not controlling in the removability
    proceedings. See 8 C.F.R. § 1003.19(d) [formerly § 3.19(d)].2
    The IJ held that Bobb’s conviction satisfied subsection (M)(i),
    and that the INS was not obligated to charge Bobb under
    subsection (R). Citing the legislative history of subsection (R),
    the IJ explained that accepting Bobb’s interpretation would lead
    to the “absurd result” that the addition of subsection (R) to
    section 1101(a)(43) had decreased the number of crimes that
    could be considered aggravated felonies, despite Congressional
    intent to the contrary. (App. 58.) See H.R. Rep. No. 104-22, at
    7 (1995); 141 Cong. Rec. E330-01 (1995). Accordingly, the IJ
    concluded that subsections (M)(i) and (R) were separate and
    distinct statutes:
    2
    That section provides as follows:
    Consideration by the Immigration Judge of an
    application or request of a respondent regarding
    custody or bond under this section shall be
    separate and apart from, and shall form no part of,
    any deportation or removal hearing or proceeding.
    The determination of the Immigration Judge as to
    custody status or bond may be based upon any
    information that is available to the Immigration
    Judge or that is presented to him or her by the
    alien or the Service.
    8 U.S.C. § 1003.19(d).
    6
    The fraud section of the INA deals with offenses
    involving fraud or deceit where the loss to the
    victim(s) is greater than $10,000. The “forgery
    section” is actually not a section limited to forgery
    offenses (a subset of fraud), but instead includes
    a variety of organized crime relating to
    immigration, and further requires one year
    imprisonment.             One section, INA
    § 101(a)(43)(M)(i) was enacted to deport
    individuals engaging in deceptive conduct causing
    great loss of money, and the other section, INA
    § 101(a)(43)(R), was enacted to deport those
    whose crimes were serious enough to merit one
    year of imprisonment.
    (App. 59.) The decision finding that Bobb’s underlying offense
    was an aggravated felony resolved both pending motions, and it
    barred Bobb from receiving a discretionary readjustment of
    status.3 On January 24, 2004, the BIA affirmed without opinion.
    (App. 63.)
    II.
    On June 24, 2004, Bobb filed a petition for writ of habeas
    corpus in the United States District Court. While that petition
    3
    The parties agree that Bobb is not eligible for
    cancellation of removal, the other form of discretionary relief
    available for a permanent resident convicted of a crime. 8
    U.S.C. § 1229b(a).
    7
    remained pending, Congress passed the Real ID Act of 2005,
    Pub. L. No. 109-13, 119 Stat. 231. Pursuant to the terms of that
    Act, we convert Bobb’s habeas petition into a petition for
    review. See Bonhometre v. Gonzales, 
    414 F.3d 442
    , 445-46 (3d
    Cir. 2005).
    We have jurisdiction over Bobb’s petition for review
    under 8 U.S.C. § 1252(a)(1). Under the REAL ID Act, our
    jurisdiction extends to “‘questions of law raised upon a petition
    for review,’ including petitions for review of removal orders
    based on aggravated felony convictions.               8 U.S.C.
    § 1252(a)(2)(D).” Popal v. Gonzalez, 
    416 F.3d 249
    , 251 (3d
    Cir. 2005). We exercise de novo review over the BIA’s
    conclusion that Bobb’s criminal conviction constitutes an
    aggravated felony. Ki Se Lee v. Ashcroft, 
    368 F.3d 218
    , 221 (3d
    Cir. 2004).4
    4
    Although we give Chevron deference to the BIA’s
    interpretation of the aggravated felony provisions of the INA if
    we determine that the statute is ambiguous, see Valansi v.
    Ashcroft, 
    278 F.3d 203
    , 208 (3d Cir. 2002), the BIA is not
    entitled to Chevron deference as to whether a particular federal
    criminal offense is an aggravated felony. That determination
    requires us to interpret federal criminal law and our own
    appellate jurisdiction, matters outside the authority or expertise
    of the BIA. See Tran v. Gonzalez, 
    414 F.3d 464
    , 467 (3d Cir.
    2005) (declining to give Chevron deference to the BIA’s
    interpretation of a federal criminal statute because it was “a task
    outside the BIA’s special competence and congressional
    delegation, while it is very much a part of this Court’s
    8
    III.
    At the outset, it is helpful to identify the parties’
    competing arguments. Bobb contends that we should read
    subsection (M)(i) to encompass all fraud or deceit not otherwise
    specified in section 1101(a)(43). Thus, since subsection (R)
    specifically covers “forgery,” the Government should not be
    permitted to charge Bobb as being removable under subsection
    (M)(i). In contrast, the Government argues that subsection (R)
    is not merely a subset of subsection (M)(i). According to the
    Government, not all forgery-related offenses involve fraud, and
    Congress’s intent in enacting subsection (R) was, in part, to
    capture those forgery-related offenses that do not involve fraud
    and deceit. As a result, the Government argues that the BIA
    correctly concluded that Bobb was convicted of an offense that
    involved fraud and deceit.
    Our task is twofold: first, we must determine whether
    Congress intended that forgery-related convictions constitute
    aggravated felonies only under subsection (R); and second,
    whether, in the alternative, Bobb’s offense is a “hybrid offense”
    that requires the government to meet all the requirements of
    both subsections (M)(i) and (R) in order to remove Bobb.
    competence”); see also Soliman v. Gonzales, 
    419 F.3d 276
    , 281
    (4th Cir. 2005).
    9
    A.
    We begin by examining whether Congress intended
    subsection (R) to be the sole avenue for a forgery-related
    conviction to constitute an aggravated felony. Relying on the
    principle of statutory construction that a specific statutory
    provision controls a general provision, Bobb argues that his
    forgery-related conviction can only constitute an aggravated
    felony under subsection (R), not subsection (M)(i). This
    argument, however, is misplaced. The government had the
    discretion to charge Bobb with an aggravated felony under
    either or both subsections for three primary reasons. First, the
    broad language used by Congress in both subsections precludes
    a finding that subsection (R) removed all forgery convictions
    from the ambit of subsection (M)(i). Second, the legislative
    history is clear that Congress’ intent in enacting subsection (R)
    was to increase the number of “aggravated felonies,” not to
    provide a loophole through which an offense that would
    otherwise have constituted an “aggravated felony” would escape
    that classification. Finally, a conclusion that the INS cannot
    bring removal proceedings under both subsections has no
    analogue in the criminal context, in which courts have
    recognized prosecutorial discretion to bring charges when
    particular statutes overlap. We will examine each of these
    points in turn.
    1.
    Bobb, heeding the familiar canon of statutory
    construction that a specific statutory provision controls a general
    provision when the two provisions cover the same factual
    10
    context, contends that subsection (R) trumps subsection (M)(i)
    and is the exclusive avenue to bring removability proceedings
    for forgery-related convictions. Bobb asserts that subsection (R)
    would be superfluous if aliens chargeable under subsection (R)
    were always also chargeable under subsection (M)(i).
    Although Bobb’s argument is somewhat inviting, it
    ultimately fails because subsections (M)(i) and (R) were both
    drafted broadly by Congress. On previous occasions, we have
    had the opportunity to interpret the scope of both subsections.
    In Valansi v. Ashcroft, 
    278 F.3d 203
    (3d Cir. 2002), we
    determined that Congress intended subsection (M)(i) to have a
    broad scope because that provision refers to an offense that
    “involves fraud or deceit” and which results in losses greater
    than $10,000. 
    Id. at 209-10.
    As a result, we held that
    subsection (M)(i) covers all offenses that have as an essential
    element an intent to defraud or deceive. 
    Id. at 210.
    See Ki Se
    
    Lee, 368 F.3d at 222
    (3d Cir. 2004) (“Subsection (M)(i) has a
    general application – the gamut of state and federal crimes
    involving fraud and deceit causing losses over $10,000.”).
    We considered the scope of subsection (R) in Drakes v.
    Zimski, 
    240 F.3d 246
    (3d Cir. 2001). There, the petitioner was
    convicted in Delaware of second-degree forgery, which had as
    an essential element an intent to deceive. The petitioner argued
    that his conviction did not constitute an “aggravated felony”
    because Congress intended the federal definition of “forgery” to
    extend only to crimes involving an intent to defraud. We noted
    that the term “forgery” under federal law was ambiguous, and
    that there was a split among the states as to whether forgery
    necessarily included an intent to defraud. A minority of states,
    11
    including Delaware, had held that forgery could also be
    premised on an intent to deceive. 
    Id. Relying upon
    the
    conflicting interpretations among the different states, we
    rejected the petitioner’s argument and held that Congress
    intended to define forgery in its broadest sense by using the
    language “relating to . . . forgery” in subsection (R). We
    concluded that “[t]he Delaware forgery statute, while apparently
    encompassing more conduct than is encompassed by traditional
    definition of forgery, is ‘related to’ forgery in a way that several
    states have made part of their criminal codes.” 
    Id. at 250.
    For
    this reason, we determined that it was appropriate for the BIA to
    read the “broad minority definition” into Subsection (R) rather
    than the “narrow traditional definition.” 
    Id. The broad
    construction we have given to subsections
    (M)(i) and (R) rebuts Bobb’s argument that all forgery
    convictions are necessarily governed by subsection (R) rather
    than subsection (M)(i). Perhaps if subsection (R) had been
    drafted differently – for example, if it had used the language
    “forgery offense” instead of “related to . . . forgery” – then
    Bobb’s argument would have merit. At their core, all common
    law forgery offenses contain as an element an intent to defraud
    or deceive.5 We are not dealing here, however, with a
    5
    See, e.g., Commonwealth v. Leber, 
    802 A.2d 648
    (Pa.
    Super. Ct. 2001); Wayne R. LaFave, Substantive Criminal Law,
    § 19.7(j)(5) (2d ed. 2003) (stating that “[f]orgery requires an
    intent to defraud”); Black’s Law Dictionary 677 (8th ed. 2004)
    (defining “forgery” as “1. The act of fraudulently making a false
    document or altering a real one to be used as if genuine. . . .
    12
    straightforward forgery offense because Congress drafted
    subsection (R) more expansively, including offenses “related to
    . . . forgery.” The term “relate” means “to show or establish a
    logical or causal connection between.” Webster’s Third New
    International Dictionary (Unabridged) 1916 (1991). Subsection
    (R) thus 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.
    The Government provides in its brief a good example of
    an offense “related to” forgery that does not have as an element
    an intent to defraud or deceive: 18 U.S.C. § 510(b). Section
    510(b) criminalizes the knowing exchange of stolen or forged
    Treasury instruments:
    (b) Whoever, with knowledge that such Treasury
    check or bond or security of the United States is
    stolen or bears a falsely made or forged
    endorsement or signature buys, sells, exchanges,
    2. A false or altered document made to look genuine by
    someone with intent to deceive.”); Model Penal Code § 224.1;
    37 C.J.S. § 2 (1997) (“While it is true that there is a distinction
    between fraud and forgery, and forgery contains some elements
    that are not included in fraud, forgeries are a species of fraud.
    In essence, the crime of forgery involves the making, altering,
    or completing of an instrument by someone other than the
    ostensible maker or drawer or an agent of the ostensible maker
    or drawer.”).
    13
    receives, delivers, retains, or conceals any such
    Treasury check or bond or security of the United
    States shall be fined under this title or imprisoned
    not more than ten years, or both.
    18 U.S.C. § 510(b). A conviction under subsection 510(b)
    contains two essential elements: (1) that the defendant buy, sell,
    or exchange a stolen or forged endorsement, (2) with knowledge
    that the instrument has been stolen or forged. See United States
    v. Clemmons, 
    892 F.2d 1153
    (3d Cir. 1989) (upholding the
    defendant’s conviction under subsection 510(b) where there was
    evidence that the defendant knew the bonds were stolen and
    attempted to sell the bonds to a government informant).
    Conspicuously absent from this definition is any element
    containing an intent to defraud or deceive. Yet, there can be no
    doubt that selling a forged check to a middleman would
    constitute an offense “related to forgery”: but for the forged
    endorsement, there would be no criminal offense. In fact, we
    have explained that the purpose of section 510(b) was to close
    a loophole in the law which did not permit the government to
    prosecute a defendant who sold or transferred forged or stolen
    instruments to another party without representing that the
    instruments were genuine. See United States v. Williams, 
    850 F.2d 142
    , 145 (3d Cir. 1988) (stating that section 510(b) “sets
    forth that the defendant must have knowledge that the
    instrument is forged but gives no indication that he must
    represent it is genuine”). We agree with the government that
    Congress’ choice of the word “related to” was intended to
    capture certain criminal conduct, such as that defined by 18
    U.S.C. § 510(b), which does not contain any intent to deceive or
    14
    defraud.6 See 
    Drakes, 240 F.3d at 250
    (referencing Congress’s
    intent to define forgery in the broadest sense because it used the
    phrase “related to” in subsection (R)); see also 
    Valansi, 278 F.3d at 210
    (referencing Congress’s intent to broaden the scope
    of subsection (M)(i) by using the term “involves”).
    Despite the broad construction we have given subsections
    (M)(i) and (R), Bobb argues that our decision in Ki Se Lee v.
    Ashcroft, 
    368 F.3d 218
    (3d Cir. 2004), compels the conclusion
    that Bobb can only be charged as removable under subsection
    (R). In Lee, the petitioners were convicted of filing false
    income tax returns causing a tax delinquency in an amount
    greater than $50,000.         The INS brought removability
    proceedings under subsection (M)(i), since the amount at issue
    was greater than $10,000. We held that the INS was precluded
    from removing the petitioners under subsection (M)(i) because
    a different provision, subsection (M)(ii), which applied
    specifically to tax evasion offenses in which the revenue loss to
    the government exceeded $10,000, identified the only removable
    tax offense. We set forth three reasons for our conclusion.
    First, we noted that our interpretation was the only way to avoid
    surplusage because there was no scenario whereby tax evasion
    6
    In addition to section 510(b), there are a number of other
    federal forgery statutes that do not contain an express element
    of an intent to defraud or deceive. See generally United States
    v. Cowan, 
    116 F.3d 1360
    , 1363 (10th Cir. 1997) (explaining that
    statutes in Chapter 25 of Title 18, which are designed to protect
    the integrity of government functions, do not have as an element
    the intent to defraud or deceive).
    15
    did not involve fraud or deceit. Thus, subsection (M)(i) did not
    exist simply as a “catch-all” section for certain tax fraud crimes
    not covered by (M)(ii). Second, we determined that Congress
    acted purposefully by singling out tax evasion within the same
    subsection as the fraud provision in an overall statute with
    numerous subsections. 
    Id. at 223
    (“Where Congress includes
    particular language in one section of the statute but omits it in
    another section of the same act, it is generally presumed that
    Congress acts intentionally and purposefully in the disparate
    inclusion or exclusion.”) (citation omitted). We focused on the
    fact that subsections (M)(i) and (M)(ii) were “interrelated and
    closely positioned,” i.e., they were adopted at the same time and
    appeared within the same subsection within a statute that
    contained twenty-one separate subsections specifying
    aggravated felonies. 
    Id. In that
    context, Congress’s choice to
    list the crime of tax evasion as a separate subsection led to our
    conclusion that tax evasion was the only removable tax-related
    aggravated felony. 
    Id. at 224.
    Finally, we stated that the history
    and structure of the criminal tax laws supported the
    interpretation that Congress intended to single out tax evasion
    as the only tax crime that could be a removable offense. 
    Id. We concluded
    that “in enacting subsection (M)(ii), [Congress]
    intended to specify tax evasion as the only deportable tax
    offense; it follows that it did not intend subsection (M)(i) to
    cover tax offenses.” 
    Id. This case,
    however, is different from Lee primarily
    because, as demonstrated above, there exist offenses “related to”
    forgery which do not contain as an essential element an intent to
    defraud or deceive. Unlike subsection (M)(ii), subsection (R)
    does not define offenses that would otherwise fall entirely
    16
    within (M)(i): the language of subsection (R) is much broader
    than that of subsection (M)(ii), and unlike (R), (M)(ii) was listed
    in the same subsection as (M)(i), the general fraud aggravated
    felony. The fact that there are numerous federal and state
    statutes “related to” forgery that do not have as an essential
    element an intent to defraud or deceive shows that subsection
    (R) is not a subset of subsection (M)(i). While there are
    offenses that fall under subsection (R) but not subsection (M)(i),
    section 510(a)(2) offenses are not among them. Section
    510(a)(2) offenses can constitute aggravated felonies under
    either subsection (M)(i) or subsection (R) because of the broad
    manner in which Congress drafted both subsections.7 As such,
    subsection (R) is not the sole avenue to charge Bobb with
    removability for his conviction under section 510(a)(2).
    2.
    The legislative history of subsection (R) also supports the
    IJ’s determination. Subsection (R) was enacted in order to
    increase the number of “aggravated felonies” that could be
    charged as removable offenses. Subsection (R) was added to
    7
    For example, all section 510(a)(2) offenses have as an
    element the specific intent to defraud and thus fall within
    subsection (M)(i)’s broad definition of an offense that “involves
    fraud or deceit” as long as the loss to the victim exceeds
    $10,000. In addition, all section 510(a)(2) offenses have as an
    element that the check passed by the defendant “bore a forged
    or falsely made endorsement” and thus come within the ambit of
    subsection (R) if the term of imprisonment is at least one year.
    17
    section 1101(a)(43) as part of the Antiterrorism and Effective
    Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32, §
    440(e)(8), 110 Stat. 1214.8 The House Report submitted in
    connection with that legislation confirms Congress’ intent to add
    several crimes to the definition of “aggravated felony”:
    One of the steps the Committee
    recommends to accomplish the . . . goal [of
    strengthening the government’s ability to
    efficiently deport aliens who are convicted of
    serious crimes] is to add several crimes to the
    definition of “aggravated felony.” Aliens who
    commit aggravated felonies can be deported from
    the United States when they complete their
    incarceration. Many of the crimes added to this
    8
    Subsection (R) was originally drafted as part of the
    Criminal Alien Deportation Improvements Act of 1995, H.R.
    668, 104th Cong. (1995), a House bill that was never enacted.
    Subsection (R) was eventually enacted, however, as part of the
    AEDPA. Subsection (R) originally defined an “aggravated
    felony” as an offense “related to . . . forgery . . . for which a
    sentence of 5 years’ imprisonment or more may be imposed.”
    Later in 1996, Congress amended subsection (R) in the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996
    (IIRIRA), Pub. L. No. 104-208, § 321(a)(10), 110 Stat. 3009, to
    strike the language “for which a sentence of 5 years’
    imprisonment or more may be imposed” and to insert in its place
    the current language of “for which the term of imprisonment is
    at least one year.”
    18
    list are those often committed by persons involved
    in organized immigration crime. The crimes
    added to this definition include: certain gambling
    offenses; crimes involving transportation of
    person[s] for the purpose of prostitution; alien
    smuggling; counterfeiting, forging, or trafficking
    in immigration and other documents; and
    trafficking in stolen vehicles.
    In adding crimes to the list, effort was
    made to ensure that the overall reach of the
    definition would be consistent with the sentencing
    guidelines established by the United States
    Sentencing Commission. With only certain
    limited exceptions, the Committee attempted to
    ensure that all of the crimes defined as aggravated
    felonies carry a base offense level of at least 12.
    These minimums have been selected to ensure
    that only the most serious crimes, or the more
    serious convictions of lesser crimes, render the
    alien deportable.
    H.R. Rep. No. 104-22, at 7 (1996).
    The broad language used in subsection (R), combined
    with the legislative history, confirms that Congress did not
    intend to hamstring the INS’s ability to bring enforcement
    proceedings, but rather to increase the number of removable
    offenses. A different interpretation simply makes no sense.
    Congress is presumed to have understood that “forgery
    offenses” historically have had as an essential element an intent
    19
    to defraud or deceive, and thus that they fell under subsection
    (M)(i). But there was a gap in the existing language of
    subsection (M)(i), because it did not cover: (1) the sale of
    forged or stolen documents to middlemen; and (2) other offenses
    that are related to forgery, but which do not contain as an
    essential element an intent to defraud or deceive. As the IJ
    correctly noted in his opinion, it simply would make no sense
    “to remove the immigration consequences from offenses that
    previously were considered aggravated felonies.” (App. 5.) In
    this respect, Congress’s choice to use the phrase “related to” was
    deliberate because it evidenced an intent to categorize as
    “aggravated felonies” crimes which previously were not covered
    by section 1101(a)(43). (See App. 6.) (“One section, INA
    § 101(a)(M)(i), was enacted to deport individuals engaging in
    deceptive conduct causing great loss of money, and the other
    section, INA § 101(a)(43)(R) was enacted to deport those whose
    crimes were serious enough to merit one year of
    imprisonment.”).
    3.
    An additional reason for finding that the INS could
    proceed under either subsection (M)(i) or (R) is that Bobb’s
    argument – that because he may be removed solely under
    subsection (R) he therefore cannot be removed under subsection
    (M)(i) – has no analogue in criminal law. It is not uncommon
    that federal criminal statutes partially overlap, permitting
    prosecutors to bring criminal charges under either one section or
    the other. As the Supreme Court recognized, there are
    sometimes partial redundancies in federal criminal statutes “both
    as to the conduct they proscribe and the individuals they reach.”
    20
    United States v. Batchelder, 
    442 U.S. 113
    (1979). In
    Batchelder, the Court rejected the argument that a defendant
    convicted under one overlapping statute could be imprisoned to
    no more than the maximum term specified under another
    overlapping statute.9 
    Id. at 118.
    In so doing, the Court
    determined that each statute, “in conjunction with its own
    sentencing provision, operates independently of the other.” 
    Id. The Court
    explained that it was “‘not enough to show that the
    two statutes produced differing results when applied to the same
    factual situation’ . . . [r]ather, the legislative intent to repeal [one
    of the statutes] must be manifest in the ‘positive repugnancy
    between the provisions.’” 
    Id. at 122
    (citations omitted). The
    Court found that the differing penalty provisions were “fully
    capable of coexisting because they apply to convictions under
    different statutes.” 
    Id. Applying the
    longstanding principle that
    “when an act violates more than one criminal statute, the
    Government may prosecute under either so long as it does not
    discriminate against any class of defendants,” the Court upheld
    the defendant’s conviction and sentence. 
    Id. at 123-26.
    See
    Berra v. United States, 
    351 U.S. 131
    (1956) (upholding the
    9
    The defendant, a convicted felon, was convicted of
    receiving a firearm that had traveled in interstate commerce, in
    violation of 18 U.S.C. § 922(h), which carried a maximum term
    of imprisonment of five years. See 18 U.S.C. § 924(a). Another
    statutory provision of the same act (The Omnibus Crime Control
    and Safe Streets Act, 82 Stat. 197 (1968)), 18 U.S.C. App.
    § 1202, also prohibited a felon from possessing a firearm,
    although the maximum term of incarceration under that section
    was two years’ imprisonment.
    21
    defendant’s felony conviction when misdemeanor tax evasion
    statute would have proscribed identical conduct and imposed a
    lesser penalty), superseded by statute on other grounds as stated
    in Sansone v. United States, 
    380 U.S. 343
    , 350 n.6 (1965).
    Similarly, this Court recognized in United States v.
    Williams, 
    850 F.2d 142
    (3d Cir. 1988), the possibility that a
    defendant could be prosecuted for the same conduct under either
    18 U.S.C. § 510(a)(2) or (b). In Williams, we noted that section
    510 was enacted to close several loopholes that had existed for
    forgery-related prosecutions.         Under existing law, the
    government could not prosecute a defendant for forgery offenses
    involving United States Treasury instruments. In addition, there
    was no avenue prior to the enactment of section 510(b) to
    prosecute a defendant “if a properly endorsed check is stolen
    and then cashed or if the thief sells the check without endorsing
    it.” 
    Id. at 147.
    The defendant argued that section 510(a)(2) was
    superfluous because many offenses chargeable under section
    510(a)(2) could also be charged under section 510(b). We
    rejected that argument, noting that “no matter how 18 U.S.C.
    § 510 is read there will be redundancies within its subsections.”
    See 
    id. (“For example,
    under any conceivable reading of 18
    U.S.C. § 510 a thief who steals a treasury check and then
    endorses it and, representing it as genuine, cashes it with an
    innocent merchant, can be prosecuted under either subsection
    (a)(2) or subsection (b) for the transaction.”). Despite these
    partial redundancies, we concluded that the subsections were
    distinct and covered separate conduct:
    [T]here are differences between the
    subsections though undoubtedly their provisions
    22
    overlap. Thus, 18 U.S.C. § 510(b) deals with
    validly endorsed or unendorsed instruments and
    section 510(a)(2) does not. On the other hand the
    latter but not the former section mentions
    attempts. In any event if the subsections are to be
    mutually exclusive, though we see no reason why
    they should be, Congress will have to rewrite
    them as we cannot. . . .
    [T]he principle novelties in 18 U.S.C.
    § 510 were in subsection (b), which closed the
    loophole in section 495 in favor of the thief who
    stole an endorsed check or sold the check without
    enclosing it, and in subsection (c) which deals
    with penalties. Thus in subsection (b) Congress
    added a provision without a comparable
    antecedent in section 495. But at the same time it
    enacted section 510(a)(2) which traversed ground
    already covered by section 495.            In the
    circumstances it is not surprising that there is
    duplication. Indeed, . . . 18 U.S.C. § 510 itself
    partially repeats provisions from section 495.
    
    Id. Similar considerations
    in the present case support a
    conclusion that Congress did not intend that Bobb could only be
    charged as removable under subsection (R).
    The cases cited by Bobb for the proposition that the
    specific statutory provision trumps the general provision all
    dealt with statutes that were coextensive with one another, or
    where Congressional intent was clear that a specific provision
    23
    trumped a general one. For example, the Supreme Court held in
    Busic v. United States, 
    446 U.S. 398
    (1980), superseded by
    statute on other grounds as stated in United States v. Gonzales,
    
    520 U.S. 1
    , 10 (1997), that the defendant could not be sentenced
    under the statutory enhancement provision in 18 U.S.C. § 924(c)
    (providing an enhanced penalty for using a firearm in
    connection with a crime of violence) where the predicate
    offense of assaulting a federal officer with a dangerous weapon
    contained its own specific statutory enhancement. The Court
    determined that the more specific enhancement provision in the
    predicate offense trumped the general enhancement provision in
    section 924(c) when both enhancement provisions covered the
    same conduct. Thus, the government was precluded from
    proceeding under section 924(c).
    Similarly, in United States v. LaPorta, 
    46 F.3d 152
    (2d
    Cir. 1994), the defendants set fire to a government vehicle
    provided by a confidential informant in an effort to obtain
    insurance proceeds. The defendants were charged, inter alia,
    under 18 U.S.C. § 844(h)(1) with using an explosive device to
    commit a felony. The defendants argued that the charge should
    be dismissed because their conduct was covered solely by
    section 844(f), which prohibits the destruction of government
    property. The Second Circuit agreed, determining that the
    specific statute relating to the destruction of government
    property necessarily controlled the broader statute because
    otherwise section 844(f) would have no practical effect.
    According to the court, a contrary interpretation would render
    section 844(f) superfluous because the government would
    always have the ability to charge under the general offense, and
    24
    would do so in most cases do so because it contained more
    stringent penalties. 
    Id. at 156.
    The distinction between the decisions in Batchelder and
    Williams and the decisions in Busic and LaPorta is this: the
    government is required to proceed under a specific statute only
    if proceeding under a general statute would render the specific
    statute superfluous. A statute is rendered superfluous only if a
    general statute can cover every possible circumstance covered
    by the specific. See, e.g., 
    Lee, 368 F.2d at 222-24
    . Under those
    circumstances, the general statute must give way to the specific.
    In this case, subsections (M)(i) and (R) are not coextensive. The
    government was entitled to charge Bobb as removable under
    either subsection because not all conduct covered by subsection
    (R) is covered by subsection (M)(i).
    For these reasons, we conclude that the IJ did not err in
    finding that the government was entitled to charge Bobb as
    removable under subsection (M)(i).
    B.
    Apart from whether the government is entitled to charge
    Bobb under subsection (M)(i) remains an equally important
    question: whether the government – whichever provision it
    chooses – must meet the requirements of both subsections (M)(i)
    and (R) to remove Bobb from the United States as an aggravated
    felon. The answer to this question depends upon whether
    Bobb’s underlying conviction qualifies as a “hybrid offense” as
    set forth in our recent opinion in Nugent v. Ashcroft, 
    367 F.3d 162
    (3d Cir. 2004).
    25
    The alien in Nugent was convicted in Pennsylvania of the
    crime of theft by deception for depositing a bad check in the
    amount of $4,831.26, and sentenced to a term of imprisonment
    of six to twenty-three months. The BIA ordered Nugent
    removed under 8 U.S.C. § 1101(a)(43)(G), which defines as an
    aggravated felony a “theft offense . . . for which the term of
    imprisonment [is] at least one year.” Nugent argued that his
    conviction for theft by deception was not a “theft offense,” but
    rather was a fraud offense covered by subsection (M)(i). As in
    the present case, the distinction was important for Nugent: he
    was not removable under subsection (M)(i) because his offense
    involved a loss to the victim of less than $10,000. If subsection
    (G) applied, however, he was removable because he was
    sentenced to a term of imprisonment of at least one year.
    In addressing Nugent’s arguments, we first had to
    determine the scope of subsection (G). We concluded that a
    “theft offense” under subsection (G) could be defined as “a
    taking of property or an exercise of control over property
    without consent.” 
    Id. at 174.
    We found that, given this broad
    definition, Nugent’s bad check transaction was a “theft offense.”
    We held, however, that this did not end our inquiry:
    The sole question for decision is whether within
    the purview of Pennsylvania’s theft by deception
    statute, Section 3922, Nugent’s conviction for
    passing a bad check represents “an offense
    involving fraud or deceit” under 8 U.S.C.
    § 1101(a)(43)(M)(i), notwithstanding that it also
    constitutes a “theft offense” under 8 U.S.C.
    § 1101(a)(43)(G). If we decide that Nugent’s
    26
    conviction is “an offense that involves fraud or
    deceit as well as “a theft offense,” then to qualify
    as an aggravated felony under the INA it must
    m eet the requirements of S ection
    1101(a)(43)(M)(i), loss to the victim of more than
    $10,000, in addition to Section 1101(a)(43)(G),
    term of imprisonment of at least one year.
    
    Id. at 174-75.
    After further analysis, we determined that
    Nugent’s theft by deception offense also fell within the purview
    of subsection (M)(i) because it required the Commonwealth to
    prove fraud and deceit. 
    Id. at 178.
    We employed principles of logic to reach the conclusion
    that the INS was required to prove the elements of both
    subsection (G) and subsection (M)(i). The terms employed to
    define the covered offenses were key to our determination.
    Subsection (G) is limited to “theft offenses,” while subsection
    (M)(i) applies more broadly to an “offense that involves fraud
    or deceit.” 
    Id. at 175.
    We found this distinction significant,
    concluding that “[Subsection] (M)(i) clearly applies to those
    ‘theft offenses’ under Subsection (G) that are anchored on
    ‘fraud or deceit’”:
    [T]he logicians teach us that a term such as
    “an offense” as contained in Section
    1101(a)(43)(M) or a “theft offense” as in Section
    1101(a)(43)(G), is said to have both a quality and
    a quantity. Here we are concerned with quantity.
    The quantity of a proposition is universal or
    particular according to whether the proposition
    27
    refers to all members of a class or to some
    members of the class designated by its subject
    term. In the case of (M) we have a term
    representing all members of a class – “an
    offense.”
    When a term contains no restrictions (as in
    (M) – “an offense”), logicians refer to it as
    “distributed,” and the proposition of which it is
    the subject as “universal” and is a class. In the
    universe of offenses set forth in Section
    1101(a)(43), however, the term “theft offense” is
    predicated on some, but not all, of the distributed
    term “an offense” in (M), and is therefore
    considered as “undistributed” and is a subclass.
    The proposition of which it is the subject is
    denoted as a “particular.” See Ruggero J.
    Aldisert, Logic for Lawyers: A Guide to Clear
    Legal Thinking 57-59 (3d ed. 1997); Irving M.
    Copi, Introduction to Logic 173 (7th ed. 1986).
    Expressed in less technical phrasing: “All theft
    offenses are offenses, but not all offenses are theft
    offenses.”
    We are taught that conclusions in all
    reasoning, including legal reasoning, deductive or
    inductive analogy, “derive[ ] their validity from
    the axiom known as the dictum de omni et nullo,
    which states: “What is true of the universal (or
    class) is true of the particular (or subclass).” . . .
    The axiom may also be stated as: If every member
    28
    of a class has (or does not have) a certain
    property, and if certain individuals are included in
    that class, then these individuals have (or do not
    have) a certain property.
    
    Id. at 176
    (underlined emphasis added).
    With this background in mind, we set forth the following
    syllogisms to govern the analysis:
    Depriving another of property by fraud or deceit
    is an offense (M). (Universal)
    The offense of theft by deception deprives another
    of property by theft (G). (Particular)
    Therefore, the offense of theft by deception is an
    offense under (M) and (G).
    ****
    The offense of theft by deception is an offense
    under (M) and (G).
    A violation of Pennsylvania’s theft by deception
    statute, § 3922, is an offense of theft by
    deception.
    Therefore, a violation of Pennsylvania’s theft by
    deception statute, § 3922, is an offense under (M)
    and (G).
    29
    
    Id. at 177.
           Applying this framework, we held that
    Pennsylvania’s theft by deception statute, which qualified under
    subsection (G) as a particular “theft offense,” also came within
    the universal (or class) nature of “an offense” bottomed on fraud
    or deceit under subsection (M)(i). Following the maxim that
    “what is true of the universal (or class) is true for the particular
    (or subclass),” we concluded that the INS had to meet the
    requirements of subsection (M)(i). 
    Id. at 179
    (“Because the
    particular Pennsylvania statute is designed entirely on all-
    embracing concepts of fraud or deceit . . . it is precisely the
    particular type of theft contemplated in the universal class of
    offenses set forth in the fraud or deceit Subsection (M)(i). We
    therefore apply the axiom . . . what is true of the universal (or
    class) is true for the particular (or subclass) in
    § 1101(a)(43)(G).”). See also 
    id. at 180
    (Rendell, J. concurring)
    (“[O]nly where an offense is a hybrid – as I submit theft by
    deception is – and the aggravated felony classifications contain
    two distinct, clearly applicable tests, should we conclude that
    both must be fulfilled in order for the offense to qualify as an
    aggravated felony.”).
    The clearest reading of Nugent is that it is restricted to
    classificational schemes in which one classification is entirely
    a subset of another. Under such circumstances, we infer a
    legislative intent to require proof of all the elements of the
    universal classification. The logical reasoning on which Nugent
    rests, however, cannot support a similar result for separate
    universal classifications which intersect, but which have
    separate and independent elements. In that situation, which we
    have in this case, satisfaction of the separate criteria of either
    30
    universal classification will suffice to establish the predicate
    defined by the classification.
    For example, if we were bound in this case by the
    proposition that “all forgeries are frauds,” in order to establish
    aggravated felony status based upon a predicate forgery
    conviction (the particular), the government would have to satisfy
    all the elements of the fraud conviction (the universal). Here,
    unlike in Nugent where we noted that the term “theft offense”
    defined a class that was entirely a subset of the larger class
    “offense,” the class “offense related to forgery” is not entirely
    a subset of the class “offense involving fraud.” Rather, an
    “offense related to forgery” is an independent, universal class
    that intersects with the “offense involving fraud” class.
    Congress made the intentional decision in subsection (R), as it
    did with fourteen different offenses set forth in section
    1101(a)(43), to use the broader term “offense.” See 
    id. at 175.
    Thus, Nugent’s holding that the universal must be proven if it
    subsumes the subclass is inapplicable to this case. Bobb’s
    underlying conviction is not a “hybrid offense,” and the
    government was entitled to charge him as removable solely
    under subsection (M)(i).
    C.
    Our only remaining question is whether the offense of
    conviction qualifies as an aggravated felony under subsection
    (M)(i). Bobb was convicted under 18 U.S.C. § 510(a)(2) of
    passing, uttering, and publishing a United States Treasury check
    in the amount of $13,277 which contained a forged
    endorsement. That statute provides as follows:
    31
    (a) Whoever, with intent to defraud--
    (2) passes, utters, or publishes, or attempts to
    pass, utter, or publish, any Treasury check or bond
    or security of the United States bearing a falsely
    made or forged endorsement or signature; . . .
    shall be fined under this title or imprisoned not
    more than ten years, or both.
    18 U.S.C. § 510(a). The Government is required to prove
    beyond a reasonable doubt the following four elements to obtain
    a conviction under section 510(a)(2): (1) that the defendant
    passed or attempted to pass a United States Treasury Check;
    (2) that the check bore a forged or falsely made endorsement;
    (3) that the defendant passed the check with intent to defraud;
    and (4) that the defendant acted knowingly and willfully.
    United States v. Rosario, 
    118 F.3d 160
    , 163 (3d Cir. 1997).
    Section 510(a)(2) explicitly contains as an element an “intent to
    defraud,” which qualifies Bobb’s conviction as a removable
    offense under subsection (M)(i). Moreover, Bobb pleaded
    guilty to an indictment which confirms that the amount of loss
    was greater than $10,000.10 Therefore, Bobb’s conviction
    10
    Bobb’s indictment stated as follows:
    On or about December 18, 1995, in the Eastern
    District of Pennsylvania, defendant ALVIN
    NETHANIEL BOBB did knowingly and with
    intent to defraud, pass, utter, and publish a United
    32
    satisfied the essential requirements for removability under
    subsection (M)(i).
    For these reasons, we conclude that the BIA did not err
    in holding that Bobb was removable, and we will accordingly
    deny his petition for review.
    IV.
    Congress intentionally used broad language when it
    drafted subsections (M)(i) and (R), which precludes a finding
    that subsection (R) is the sole vehicle for removing Bobb for an
    offense committed under 18 U.S.C. § 510(a)(2). The legislative
    history supports the conclusion that Congress intended to
    increase the number of crimes which constitute “aggravated
    felonies,” not to provide a loophole through which an offense
    that could have previously constituted an aggravated felony may
    no longer be charged as such. In addition, Bobb’s argument that
    he is removable only under subsection (R) has no analogue in
    the criminal law context. Finally, Bobb’s offense is not a
    “hybrid offense” as set forth in Nugent.
    States Treasury check . . . in the amount of
    $13,277 dated December 14, 1995 bearing a
    falsely made and forged endorsement.            In
    violation of Title 18, United States Code, Section
    510(a)(2).
    (App. at 47 (emphasis added).)
    33
    As a result, we agree with the BIA that Bobb committed
    an “aggravated felony” and will accordingly deny Bobb’s
    petition for review.
    ALDISERT, Circuit Judge, dissenting.
    Alvin Bobb entered the United States as a legal
    permanent resident in 1991 on the petition of his mother, who is
    a United States citizen. His wife is a United States citizen. His
    two children—a 15-year-old son and an eight-year-old
    daughter—are also both United States citizens. He has been
    convicted of one crime: forging a United States treasury check.
    He was sentenced to, and has served, four months in prison for
    that crime. He concedes that he is removable under INA §
    237(a)(2)(A)(i) for having committed a crime of moral
    turpitude, but contests the Secretary’s determination that his
    crime qualifies as an “aggravated felony.” The consequences of
    such a designation are harsh: immediate deportation, ineligibility
    for discretionary relief from removal, a 20-year-prohibition on
    reentry, and no judicial review. See 8 U.S.C. §§ 1229(b),
    1182(a)(9)(A)(ii) & 1252(a)(29)(C).
    34
    I agree with the majority that not all offenses “relating to
    . . . forgery” are “offenses involving fraud or deceit” and
    therefore subsection (R) is not a subclass of subsection (M)(i).
    Maj. Op. at 17. I also agree with the majority that, in most
    circumstances, “the government is required to proceed under a
    specific statute only if proceeding under a general statute would
    render the specific statute superfluous.” Maj. Op. at 25. This
    rule is rooted in the reality that there are often partial
    redundancies in federal criminal statutes “both as to the conduct
    they proscribe and the individuals they reach,” and prosecutors
    are entrusted with the discretion to choose which statute to
    apply. United States v. Batchelder, 
    442 U.S. 113
    , 124 (1979);
    see also 
    id. (“Whether to
    prosecute and what charge to file or
    bring before a grand jury are decisions that generally rest in the
    prosecutor’s discretion.”).
    In Batchelder, to reuse the majority’s example, the
    Supreme Court rejected the argument that a defendant convicted
    under one overlapping statute could be imprisoned for more than
    the maximum term specified in another overlapping statute. 
    Id. at 118.
    The Court determined that each statute, “in conjunction
    with its own sentencing provision, operated independently of
    one another,” 
    id., and that
    both could be applied to the same
    factual situation unless “the legislative intent to repeal” one of
    the statutes is “manifest in the ‘positive repugnancy between the
    provisions.’” 
    Id. at 122
    .
    35
    My difficulty with the majority’s approach is that 8
    U.S.C. § 1101(a)(43) is not a criminal statute and subsections
    (R) and (M)(i) do not “operate[] independently” of one another,
    nor do they have their “own sentencing provision[s].” See 
    id. Indeed, subsections
    (R) and (M)(i) do not independently
    proscribe any type of conduct—they simply define what
    constitutes an “aggravated felony.” Many cases support the
    notion that prosecutors can choose between applicable criminal
    and civil statutes, but my research has not uncovered any case
    permitting administrative agencies to choose between two
    definitions within the same subsection of the same statute.
    Moreover, neither the statutory text nor the legislative history
    evince any intent by Congress to vest the Secretary with the
    discretion to pick and choose between two definitions of the
    term “aggravated felony,” applying whichever test is easiest to
    satisfy under the facts of the case. Accordingly, I respectfully
    dissent.
    The starting point for my analysis is the recognition that
    prior to the 1996 amendment most forgery offenses over
    $10,000 would have qualified under subsection (M)(i). In 1996,
    however, Congress amended the aggravated felony
    classifications and added subsection (R). See Antiterrorism and
    Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
    104-32, § 440(e)(8), 110 Stat. 1214. Subsection (R) specifically
    enumerates several offenses, including those relating to
    commercial bribery, counterfeiting, trafficking in stolen
    vehicles, and forgery. It cannot reasonably be disputed that
    36
    Bobb’s crime is an “offense relating to [] forgery,” and therefore
    falls under subsection (R).
    Yet the Government argues, and the majority agrees, that
    because subsection (R) is not a subclass of subsection (M)(i),
    Congress intended the Secretary to be able to choose between
    the two depending upon the facts of each case. I cannot accept
    this proposition. Regardless of whether subsection (R) is a
    subset of subsection (M)(i), there can be little doubt that
    subsection (R) is more specifically applicable to the crime of
    forgery than subsection (M)(i). These are not separate criminal
    statutes. They are statutory definitions of the term “aggravated
    felony.” With few exceptions, Congress appears to have
    consciously avoided redundancies in the aggravated felony
    classification. In the one case where we found a redundancy, we
    held that Congress intended the more specific classification to
    apply. See Ki Se Lee v. Ashcroft, 
    368 F.3d 218
    , 224 (3d Cir.
    2004) (“[I]n enacting subsection (M)(ii), [Congress] intended to
    specify tax evasion as the only deportable tax offense; it follows
    that it did not intend subsection (M)(i) to cover tax offenses.”).11
    11
    Although I agree with the majority that Ki Se Lee does
    not carry the day for Bobb, it is nonetheless supportive.
    Notably, the majority in Ki Se Lee acknowledges that, at least
    theoretically, not all instances of tax evasion involve fraud or
    deceit, stating, rather cryptically: “We have considered the
    government’s contention that there could be a case where a
    conviction for tax evasion would not involve fraud or deceit, in
    37
    In this context, it makes little sense to look to broad
    classifications (such as crime of violence or crime involving
    fraud or deceit) when Congress has specifically considered the
    crime at issue and set forth a particular test.
    The Government’s response, which the majority adopts,
    is twofold. First, it argues that Congress’ sole intention in
    adding subsection (R) was to bring forgery-related crimes not
    otherwise covered by subsection (M)(i) (or other aggravated
    which case subsection (M)(ii) would exist simply to catch any
    cases not covered by subsection (M)(i), but the government has
    not identified, and we are unable to envision, what that case
    might be.” 
    Id. at 223
    . Judge, now Justice, Alito, dissented on
    this issue, stating:
    Neither “fraud” nor “deceit” is mentioned in the
    statute as a necessary element of tax evasion. The
    statute applies to the willful attempt “in any
    manner to evade or defeat any tax imposed by this
    title or the payment thereof.” 26 U.S.C. § 7201.
    Likewise, leading cases interpreting this language
    do not hold that fraud or deceit is an element of
    the offense. . . .
    
    Id. at 227
    (Alito, J., dissenting) (emphasis omitted). It therefore
    appears that the majority in Ki Se Lee accepted that one
    classification need not render another wholly superfluous for the
    more specific to take precedence.
    38
    felony classifications) into the aggravated felony rubric.
    Second, it contends that any other interpretation would defeat
    Congress’ intent to increase the list of aggravated felonies for
    which an alien can be deported.” See H.R. Rep. No. 104-22, at
    7 (1996).
    There is no support for the first proposition. See Ki Se
    
    Lee, 368 F.3d at 224
    n.8 (observing that, “[f]or the most part,
    [the 1996 additions to the aggravated felony definitions] were
    adopted without any discussion of their particular purpose”). It
    is unmistakably apparent that the crime of forgery is an “offense
    related to forgery,” and I do not agree that the “relating to”
    language, which is found throughout § 1101(a)(43), signifies an
    exclusive intent to focus on offenses “relating to” forgery that
    are not in fact forgeries. Moreover, I do not agree with the
    majority that there was no need to revisit the test applicable to
    “forgery offenses.” See Maj. Op. at 19-20 (“Congress is
    presumed to have understood that ‘forgery offenses’ historically
    have had as an essential element an intent to defraud or deceive,
    and thus that they fell under subsection (M)(i).”). Although
    “forgery offenses” historically have had an intent to defraud or
    deceive as an essential element, some modern state statutes do
    not, see 36 Am. Jur. 2d Forgery § 26 (noting that fraudulent
    intent is an element of most state statutes, although some allow
    intent to injure as well), and Congress has indicated that the
    federal crime of forgery need not necessarily include as an
    element the intent to defraud. See Drakes v. Zimski, 
    240 F.3d 246
    , 249 (3d Cir. 2001) (“[I]n Congress’ view, it may well be
    39
    possible to commit ‘forgery’ without ‘fraud,’ or at least fraud in
    the ordinary sense of misrepresentation for material gain.”); see
    also 18 U.S.C. § 510(b) (“Whoever, with knowledge that such
    Treasury check or bond or security of the United States is stolen
    . . ..”) (emphasis added). I therefore cannot accept that it
    “makes no sense” for Congress to have established a new test
    for all forgery-related crimes.
    The Government’s second contention—that Congress
    intended to expand the number of aggravated felonies—is
    irrelevant. My interpretation does not narrow the number of
    aggravated felonies; I simply propose that we apply the test
    found in the subsection specifically discussing crimes relating
    to forgery. Indeed, by many measures this is an easier test for
    the Secretary, as it removes the high minimum loss requirement
    and permits removal for relatively short sentences. Moreover,
    the legislative history is equally plain that Congress intended the
    1996 amendment “to ensure that only the most serious crimes,
    or the more serious convictions of lesser crimes, render the alien
    deportable.”      See H.R. Rep. No. 104-22, at 7 (1996).
    Accordingly, that Congress may have intended to increase the
    number of aggravated felonies does nothing to help us resolve
    whether Bobb’s crime is sufficiently serious to warrant removal.
    In sum, I simply cannot escape the commonsense
    conclusion that Congress intended subsection (R)—the only
    classification that specifically mentions the crime of
    forgery—rather than subsection (M)(i), which does not mention
    40
    it, to apply to the crime of forgery. Moreover, although I
    conclude that there is no ambiguity in subsection (R), to the
    extent that one might so view it, I would apply the
    “‘longstanding principle of construing any lingering ambiguities
    in deportation statutes in favor of the alien.’” Ki Se 
    Lee, 368 F.3d at 225
    (quoting INS v. Cardoza-Fonseca, 
    480 U.S. 421
    ,
    449 (1987)).
    Whether this result would constitute an “implied repeal”
    of subsection (M)(i), as the Government suggests, is purely a
    question of semantics. I am not suggesting that subsection
    (M)(i) would not apply if Bobb’s crime were not covered by
    subsection (R). What I am suggesting is that, in determining
    whether a crime is an aggravated felony, we should—to carry
    out Congress’s intent—apply the most analogous aggravated
    felony classification, to the extent that there is one.
    I would therefore hold that, whatever the practice prior
    to 1996, forgery is now a removable offense only if it qualifies
    under the test set forth in subsection (R). I find the majority’s
    contrary conclusion—that subsection (R) alone should apply to
    forgery-related crimes that are not exactly forgery while the
    Secretary can pick between the subsections (M)(i) and (R) when
    it is a forgery-related crime that is forgery—both
    counterintuitive and problematic. Perhaps Gertrude Stein said
    it best: “A rose is a rose is a rose.” A forgery is a forgery is a
    forgery.
    41
    ***
    Accordingly, with utmost deference and respect, I
    dissent. I would grant the petition to review and remand to the
    BIA with a direction to utilize § 1101(a)(43)(R) in determining
    whether Alvin Bobb committed an aggravated offense.12
    12
    Because I believe that with the adoption of (R), forgery
    may no longer be an offense under (M)(i), the teachings of
    Nugent v. Ashcroft, 
    367 F.3d 162
    (3d Cir. 2004), are not
    applicable to this case.
    42