Criminal Defense of Immigrants


§ 19.33 J. Counterfeiting

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The INA defines as an aggravated felony “an offense relating to . . . counterfeiting . . . for which the term of imprisonment is at least one year.”[393]

                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.[394]  “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 also includes counterfeit labels, CDs, and the like.


The Ninth Circuit has held[395] that a conviction under 18 U.S.C. § 472[396] for felony possession of counterfeit U.S. obligations is an aggravated felony as an offense “relating to . . . counterfeiting.”[397]  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]


                The First Circuit has allowed the DHS to charge and remove a noncitizen based upon a conviction for conspiracy to possess counterfeit securities as an aggravated felony fraud offense,[398] where it was determined that the offense involved a loss in excess of $10,000.

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

[393] See § 19.9, supra. 

[394] 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).

[395] 18 U.S.C. § 472 punishes anyone who “with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States.”

[396] See § 16.36, supra. 

[397] Albillo-Figueroa v. INS, 221 F.3d, at 1073.  See also Park v. U.S. Att’y Gen., 472 F.3d 66 (3d Cir. Dec. 29, 2006) (federal conviction of trafficking in counterfeit goods or services in violation of the Trademark Counterfeiting Act of 1984, 18 U.S.C. § 2320, is an aggravated felony conviction for “an offense relating to ... counterfeiting,” under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R)); 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).

[398] See § § 19.72-19.74, infra.



First Circuit

Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. Sept. 30, 2008) (Rhode Island conviction for trafficking in trademark counterfeits, in violation of R.I. Gen. Laws 11-17-13(c)(1), for immigration purposes).

Ninth Circuit

Rodriguez-Valencia v. Holder, ___ F.3d ___, 2011 WL 2899605 (9th Cir. Jul. 21, 2011) (per curiam) (California conviction for willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark, in violation of Penal Code 350(a)(2), constitutes an aggravated felony as an offense relating to ... counterfeiting under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), rejecting argument that this aggravated felony covers only counterfeiting of currency); see Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir.2008) (quoting Park v. INS, 472 F.3d 66, 72 (3d Cir.2006); Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d Cir.2004) (The term [relating to in INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R),] ... suggest[s] Congress's intent to reach more broadly than any single statute.); see also Morales v. Trans World Airlines, 504 U.S. 374, 383"84, 112 S.Ct. 2031, 119 L.Ed.2d 157, (1992) (finding that the phrase relating to has a broad scope ... and an expansive sweep.).