Friday, March 27, 2009

Immigration Marriage fraud, misuse of visas

Marriage Fraud: Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations. The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife.

A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permnt resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.

The first paragraph of 18 U.S.C. § 1546(a) proscribes the forging,
counterfeiting, altering or falsely making of certain immigration
documents or their use, possession, or receipt. The second paragraph
proscribes the possession, or bringing into the United States of
plates or distinctive papers used for the printing of entry
documents. The third paragraph makes it a crime, when applying for
an entry document or admission into the United States, to personate
another or appear under a false name. The fourth paragraph makes it
a crime to give a false statement under oath in any document
required by the immigration laws or regulations.

The Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) amended subsection 1546(a) to provide for enhanced
penalties if the offense was committed to facilitate an act of
international terrorism or a drug trafficking crime.

Subsection 1546(b) makes it a felony offense to use a false
identification document, or misuses a real one, for the purpose of
satisfying the employment verification provisions in 8 U.S.C. §
1324a(b).

Title 18 U.S.C. §§ 1541 to 1546, provide criminal penalties for
offenses related to passports, visas, and related documents.
Sections 1541 to 1544 exclusively concern passports. Section 1545
deals with safe conducts as well as passports. 18 U.S.C. § 1546
deals with visas, permits, and related documents. See 3 A.L.R.Fed.
623.

A passport is defined at 8 U.S.C. § 1101(a)(30) as "any travel
document issued by competent authority showing the bearer's origin,
identity, and nationality, if any, which is valid for the entry of
the bearer into a foreign country." The Supreme Court has stated "[a
passport] is a document, which, from its nature and object, is
addressed to foreign powers; purporting only to be a request, that
the bearer of it may pass safely and freely; and is to be considered
rather in the character of a political document, by which the bearer
is recognized, in foreign countries, as an American citizen; and
which, by usage and the law of nations, is received as evidence of
the fact." See Haig v. Agee, 453 U.S. 280, 292 (1981). Title 8
U.S.C. § 1104 entrusts control of passport and visa matters to the
Department of State, and establishes a Passport Office and a Visa
Office. Title 8 U.S.C. § 1185(b) makes it unlawful for a United
States citizen to attempt to depart from or enter the United States
without a valid passport, except as authorized by the President.

Section 211a of Title 22 authorizes the Secretary of State to issue
United States passports in foreign countries. Title 22 U.S.C. § 212
limits issuance of United States passports to United States
nationals only. Section 213 prescribes the method of applying for a
passport, Title 22 U.S.C. §§. 213, 214a, and 215 control the fees
for passports, 22 U.S.C. § 217a limits the temporal validity of
passports to no more than 10 years. State Department regulations
governing passports appear at 22 C.F.R. Part 51. See 59A Am.Jur.2d
"Passports" for a general discussion of the law of passports.

The statutory maximum term of imprisonment for violations of 18
U.S.C. §§ 1541 - 1546 is 10 years. See 18 U.S.C. § 3291. However, 18
U.S.C. § 1547 provides that notwithstanding any other provision of
title 18, the maximum term of imprisonment that may be imposed for
passport and visa violations (except violations under 18 U.S.C. §
1545) if committed to facilitate a drug trafficking crime is 15
years; and if committed to facilitate an act of international
terrorism is 20 years.

_________________________________________________________

§ 1546. Fraud and misuse of visas, permits, and other documents

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact—
Shall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929 (a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.

(b) Whoever uses—

(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,

(2) an identification document knowing (or having reason to know) that the document is false, or

(3) a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act, shall be fined under this title, imprisoned not more than 5 years, or both.

(c) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (18 U.S.C. note prec. 3481).[1] For purposes of this section, the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

§ 1325. Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who

(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or

(2) eludes examination or inspection by immigration officers, or

(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

(c) Marriage fraud
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

(d) Immigration-related entrepreneurship fraud
Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.

595 F.2d 1192
_____________________________
Sec. 3291. Nationality, citizenship and passports

No person shall be prosecuted, tried, or punished for violation
of any provision of sections 1423 to 1428, inclusive, of chapter 69
and sections 1541 to 1544, inclusive, of chapter 75 of title 18 of
the United States Code, or for conspiracy to violate any of such
sections, unless the indictment is found or the information is
instituted within ten years after the commission of the offense.

CHAPTER 213--LIMITATIONS

18 U.S.C. § 3282 Offenses not capital

Except as otherwise expressly provided by law, no person shall be
prosecuted, tried, or punished for any offense, not capital, unless the
indictment is found or the information is instituted within five years
next after such offense shall have been committed.

(June 25, 1948, ch. 645, 62 Stat. 828; Sept. 1, 1954, ch. 1214,
Sec. 12(a), formerly Sec. 10(a), 68 Stat. 1145; renumbered Pub. L. 87-
299, Sec. 1, Sept. 26, 1961, 75 Stat. 648.)
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