Aggravated Felonies

The INA defines as an aggravated felony: “an offense relating to . . . counterfeiting . . . for which the term of imprisonment is at least one year.”[94]

            This aggravated felony is not defined by reference to a federal statute, and the BIA has yet to adopt a “generic” definition of the offense.[95]  “Counterfeiting” is defined under federal law by 18 U.S.C. § § 471 ff.  Counsel may wish to question whether this aggravated felony includes only the counterfeiting of moneys (cash, securities, obligations, etc.), or includes counterfeit labels, CDs, and the like.

The Ninth Circuit has held[96] that a conviction under 18 U.S.C. § 472[97] for felony possession of counterfeit U.S. obligations is an aggravated felony as an offense “relating to . . . counterfeiting.”[98]  While possessing a counterfeit instrument is not the same act as counterfeiting (manufacturing or altering one), the court stated that the phrase “relating to” means that the aggravated felony definition “necessarily covers a range of activities beyond those of counterfeiting or forgery itself.”  The court noted that to be guilty of violating the offense at issue, the defendant had to have passed or possessed the bill knowing it was counterfeit and intending to defraud.  It found that the “requisite knowledge and intent to defraud was sufficient to make a conviction under 18 U.S.C. § 472 one that is ‘related to’ the act of counterfeiting itself.”[6]

[99] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[94] See § § 4.34-4.36, supra.

[95] Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000), construing the definition of “relating to counterfeiting” in INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[96] Punishes anyone who “with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States.”

[97] See § 4.37, supra.

[98] Albillo-Figueroa v. INS, 221 F.3d, at 1073.  See also Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. § § 371, 513(a), constitutes an aggravated felony, rejecting an argument that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so, and conspiracy to possession cannot be a crime “related to counterfeiting” because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments).