Whether under Duenas-Alvarez and Virginia state decisions, Va. Code § 18.2-168, forgery of public records, is an aggravated felony as a crime relating to forgery under 8 U.S.C. § 1101(a)(43)(R)

QUESTION PRESENTED I. This case concerns a methodological problem in applying the categorical approach. The categorical approach compares the elements of a state crime with some categorical benchmark such as, here, the generic crime of forgery. While federal law determines the contours of the generic crime, state law controls the elements of the state offense. However, state law may be unclear, lacking cases which address the issue, or having conflicting cases, or inconsistent application in practice. Further, state court decisions have different levels of formality, from published on-point pronouncement of the state’s highest court, down to unpublished trial level decisions. This case highlights the tension between the categorical approach’s focus on elements and a state’s formal law, and the pronouncement of this Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) that a person may show overbreadth by pointing to a case where state law was actually applied in the overbroad manner argued. The Courts below are more frayed than split on how to make this determination; there are fractured panel opinions and inconsistencies even within circuits. Some Courts require a clear pronouncement by the state’s highest court; other consider inferences from ambiguous nonbinding state sources. In this case, the statutory text of Virginia forgery is within the generic limits. However, state intermediate appellate decisions and a trial court decision appear to expand the scope of liability beyond the statutory text and the generic limits. Therefore, the question presented is: Whether under Duenas-Alvarez and Virginia state decisions, Va. Code § 18.2-168, forgery of public records, is an aggravated felony as a crime relating to forgery under 8 U.S.C. § 1101(a)(43)(R). “iL