                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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IMG-055                                              NOT PRECEDENTIAL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.
