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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Civil And Criminal Remedies For Immigration Related Document Fraud
by Jack Perkins
Chief Administrative Hearing Officer
Executive Office for Immigration Review

Federal prosecutors should be reminded that an alternative to criminal prosecution of immigration related document fraud exists. That alternative, enacted as 274C of the Immigration and Nationality Act (INA) by the Immigration Act of 1990, was expanded in scope by amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (P.L. 104-208, Sept. 30, 1996, 110 Stat. 3009). These provisions were codified at 8 U.S.C. 1324c.

Criminal provisions dealing with immigration-related document fraud include 18 U.S.C. 1426, 1542, 1543, 1544 and 1546; as well as statutes of more general application, such as 18 U.S.C. 1001 and 1028. The INS General Counsel's Office has also taken the position that 274C(a) can also be used in addition to criminal prosecution, i.e., that the double jeopardy clause would not be violated by such a course of action. In a 1998 memorandum to all Regional and District INS Counsels, the General Counsel for INS interpreted Hudson v. United States, 522 U.S. 93 (1997) as rendering the Double Jeopardy Clause not applicable to 274C civil cases.

A class action lawsuit entitled Walters v. Reno, 145 F.3 d. 1032 (9th Cir. 1 998), cert. denied, 526 U .S. 100 3 (1999), effectively suspended enforcement of 274C before the expanded 1996 version of the statute went into effect. However, the Walters case has been settled, so the Immigration and Naturalization Service is free to resume enforcement of 274C.

The specific provisions of 274C are as follows:

(a) Activities Prohibited

It is unlawful for any person or entity knowingly-

(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act or obtain a benefit under this Act,

(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this Act or to obtain a benefit under this Act,

(3) to use or attempt to use or to provide or attempt to provide any document law fully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of satisfying a NOVEMBER 2001 UNITED STATES ATTORNEYS' BULLETIN 49 requirement of this Act or obtaining a benefit under this Act,

(4) to accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of complying with section 274A(b) or obtaining a benefit under this Act, or

(5) to prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted, or

(6)(A) to present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien's eligibility to enter the United States, and

(6)(B) to fail to present such document to an immigration officer upon arrival at a United States port of entry.

Subsections 274C(a)(5) and (6) were added by the IIRIRA amendments.

The term "falsely make," as used in 274C(a), is defined at 274C(f). That subsection, also added to the statute by the IIRIRA amendments, states:

(f) Falsely Make

For purposes of this section, the term "falsely make" means to prepare or provide an application or document with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.

Other IIRIRA amendments to 274C include the following criminal penalties:

(e) Criminal Penalties for Failure to Disclose Role as Document Preparer

(1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f)) for immigration benefits, shall be fined in accordance with title 18, United States Code, imprisoned for not more than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.

(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this Act, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, United States Code, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such application.

Because 274C(e) requires proof of two additional elements to establish a false making, that is willfully concealing the false making and performing the act for a fee or other remuneration, its utility to prosecutors seems debatable. However, there is the advantage of having the term "falsely make" clearly defined in the statute itself at 274C(f). Whether the term "falsely make" includes providing false information on a form has been the subject of controversy in the case law. See e.g., Moskal v. United States, 498 U.S. 103 (1990) and United States v. Merklinger, 16 F.3d. 670 (6th Cir. 1994).

[Editor's Note: This article was obtained from the United States Attorneys' Bulletin]


About The Author

Jack E. Perkins was appointed Chief Administrative Hearing Officer in January 1990. He served as Acting Deputy Director of the Executive Office for Immigration Review from March to August 2001 while continuing to serve as Chief Administrative Hearing Officer. Much of Mr. Perkins's professional career has been spent serving in various positions within the Department of Justice including Deputy Assistant Attorney General, Office of Legislative Affairs, 1986 to 1990; legislative counsel and staff attorney, Office of Legislative Affairs, 1976 to 1985; staff attorney, Criminal Division, 1974 to 1976 and 1972 to 1973; and assistant U.S. attorney, Northern District of California, 1973 to 1974.


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