Apanpa v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-30-2008
Apanpa v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3009
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IMG-055 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3009
___________
SAHEED ADEWALE APANPA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A45-454-470)
Immigration Judge: Walter Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
APRIL 23, 2008
Before: SCIRICA, Chief Judge, FUENTES AND GARTH, Circuit Judges
(Opinion filed: April 30, 2008)
___________
OPINION
___________
PER CURIAM
Saheed Apanpa, a native and citizen of Nigeria born in 1982, entered the United
States in 1993. He was admitted as a lawful permanent resident. In 2005, Apanpa was
convicted of criminal possession of a forged instrument in the second degree under
§ 170.25 of the New York Penal Code. The Government subsequently charged him as
removable for having committed an aggravated felony under § 101(a)(43)(R) of the
Immigration and Nationality Act (“INA”).
Apanpa argued in administrative proceedings that he was a citizen who had not
committed an aggravated felony. The IJ, however, concluded to the contrary and ordered
him removed. The Board of Immigration Appeals (“BIA”), citing Drakes v. Zimski, 240
F.3d 246 (3d Cir. 2001), affirmed. Apanpa filed a petition for review, which the
Government asks us to dismiss for lack of jurisdiction.
We have jurisdiction over Apapna’s petition for review under 8 U.S.C.
§ 1252(a)(2)(D). See Garcia v. Attorney Gen. of the United States, 462 F.3d 287, 291 (3d
Cir. 2006) (explaining that our jurisdiction extends to constitutional claims and questions
of law raised in a petition for review, including the question whether a petitioner was
convicted of an aggravated felony). We exercise plenary review over Apapna’s legal
argument that he was not an aggravated felon.1 See id.Despite his arguments to the contrary, Apanpa was convicted of an aggravated
felony. An aggravated felony includes “an offense relating to . . . forgery . . . for which
the term of imprisonment is at least one year.” 8 U.S.C. § 101(a)(43)(R). Apanpa was
convicted of criminal possession of a forged instrument in the second degree under New
York Penal Code § 170.25. Section § 170.25 reads:
1
Apapna does not pursue the citizenship claim he raised in the agency proceedings.
A person is guilty of criminal possession of a forged instrument in the second
degree when, with knowledge that it is forged and with intent to defraud, deceive
or injure another, he utters or possesses any forged instrument of a kind specified
in section 170.10.
Section 170.10 includes commercial instruments, credit cards, deeds, wills, public
records, written instruments created by a public office, prescriptions for drugs, and the
like.
As we previously acknowledged, “the meaning of ‘forgery’ in federal law is
ambiguous.” Drakes, 240 F.3d at 249. However, upon study, we concluded that
Congress wished to define forgery in the broadest sense by using the phrase “an offense
relating to forgery.” See id. In Drakes,2 we considered a Delaware statute which
provides in relevant part that a person is guilty of forgery when, with the intent to
defraud, deceive, or injure another person, the person alters a written instrument of
another without authority, make or transfers a written instrument that purports to be that
of another who did not authorize the action, or (especially pertinent to this case)
“possesses a written instrument, knowing that it was made, completed or altered under
circumstances constituting forgery.” 11 Del. C. § 861. We held that the Delaware
forgery statute was related to forgery, and that the BIA’s decision that a conviction under
the Delaware statute was a conviction for an aggravated felony was correct, whether
2
In Drakes, as here, the circumstances of the crime were not clear. See Drakes, 240
F.3d at 247 (“At minimum, he provided a false name to the police and later pled guilty to
two counts of second-degree forgery under Delaware state law.”) However, the New
York Penal Code provision, like the Delaware statute, is considered under the formal
categorical approach to determine “if it encompasses acts beyond those subject to
prosecution under the federal definition.” Id. at 249.
viewed through the deferential lens of Chevron v. Natural Resources Defense Council,
467 U.S. 837 (1984), or not. See Drakes, 240 F.3d at 251.
The New York statute in this case describes conduct and intent included in the
Delaware statute in Drakes. Of particular relevance, the statutes are markedly similar in
their description of the possession offense. Accordingly, Drakes controls the result in this
case, and Apanpa’s conviction for criminal possession of a forged instrument in the
second degree is an offense relating to forgery. It is undisputed that Apanpa’s resulting
term of imprisonment is longer than one year. Apanpa, then, was convicted of an
aggravated felony. His broad arguments relating to unfairness do not change the result.
Accordingly, although we deny the Government’s motion to dismiss Apapna’s
petition for lack of jurisdiction, we deny Apapna’s petition for review.