Criminal Defense of Immigrants


§ 17.21 B. Visa Fraud Conviction

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A noncitizen is deportable for a conviction of a violation of, or attempt or conspiracy to violate, 18 U.S.C. § 1546 “(relating to fraud and misuse of visas, permits, and other admission documents).”[159] 


Section 1546 of Title 18, United States Code, penalizes knowingly forging, altering, or possessing any visa or other entry document or evidence of authorized stay or employment, or impersonating another when applying for a permit or entry, or knowingly making any false statement under oath with respect to a material fact in any document required by the immigration laws by a maximum of 25 years if committed to facilitate terrorism,[160] 20 years if committed to facilitate a drug trafficking crime,[161] 10 years for a first or second offense, or 15 years for any other offense.  The statute also prohibits knowingly and improperly using an identification document or a false document for the purpose of satisfying a requirement of INA § 274A(b), 8 U.S.C. § 1324a(b) (unlawful employment of noncitizens), and punishes the offense by a sentence of up to five years.[162]


                This ground of deportation is defined by reference to a statute which contains a parenthetical describing some of the contents of the statute.  It is possible to argue that the parenthetical is a limitation describing a portion of the statute that is included within the ground of deportation, although there is authority going both ways depending on the exact wording.[163]


        Since Congress expressly included attempt and conspiracy, but failed to include any other non-substantive offenses, counsel can that Congress excluded all other non-substantive offenses, such as accessory after the fact, misprision of a felony, solicitation, and other non-substantive offenses.  A conviction for conspiracy to violate the federal statute prohibiting making of false statements to a federal officer[164] does not incur deportation under this ground.[165]  See Appendix G, infra.

[159] INA § 237(a)(3)(B)(iii), 8 U.S.C. § 1227(a)(3)(B)(iii), as amended by Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 203(b)(2), 108 Stat. 4305, 4311.  The 1994 change applies both retrospectively and prospectively.  Id., § 203(c).

[160] 18 U.S.C. § 2331.

[161] 18 U.S.C. § 929(a).

[162] 18 U.S.C. § 1546(b). 

[163] See § 16.37, infra.

[164] 18 U.S.C. § 1001.

[165] Matter of Gayo-Gayo, 11 I. & N. Dec. 46 (BIA 1965).



Seventh Circuit

Gourche v. Holder, ___ F.3d ___, 2011 WL 5443657 (7th Cir. Nov. 9, 2011) (federal conviction of conspiracy to violate 18 U.S.C. 1546(a), fraud in immigration documents, categorically triggers deportation under INA 237(a)(3)(B)(iii), 8 U.S.C. 1227(a)(3)(B)(iii); the parenthetical language (relating to fraud and misuse of visas, permits, and other entry documents) is merely descriptive). NOTE: The court stated that, In ascertaining the meaning of a statute, we look to the language and the structure of the statutory provisions. Burma v. Holder, 640 F.3d 749, 751 (7th Cir.2011); United States v. Webber, 536 F.3d 584, 593 (7th Cir.2008). In this case, both the language of the parenthetical phrase and the structure of the provision demonstrate that Congress intended only to provide a convenient shorthand description of 1546 (prohibiting fraud and misuse of visas, permits, and other documents) rather than to limit the class of aliens deportable under 1227(a)(3)(B)(iii).); see Patel v. Ashcroft, 294 F.3d 465, 470"71 (3d Cir.2002), superseded on other grounds by statute, REAL ID Act of 2005, Pub.L. No. 109"13, div. B, 106, 119 Stat. 231; United States v. Galindo"Gallegos, 244 F.3d 728, 733"34 (9th Cir.2001) (as amended); United States v. Salas"Mendoza, 237 F.3d 1246, 1247"48 (10th Cir.2001); United States v. Monjaras"Castaneda, 190 F.3d 326, 330"31 (5th Cir.1999); but see Evangelista v. Ashcroft, 359 F.3d 145, 152 (2d Cir.2004) (declining to apply the Fifth Circuit's approach in Monjaras"Castaneda to analysis of 8 U.S.C. 1101(a)(43)(M)(ii)).