Passport and Visa Facts

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A Practical Approach to Prosecuting Passport and Visa Fraud Cases

Matthew Eltringham
Assistant United States Attorney
Organized Crime Drug Enforcement Taskforce

I. Introduction

The purpose of this article is to provide a general overview to help guide you through the preliminary issues in passport and visa fraud cases because no two cases are identical.

Passports and visas are more than just travel documents. They are another means by which individuals are identified as citizens or nationals of a particular country. A passport issued by the United States Department of State identifies the holder of the passport as a citizen or national of the United States. A visa issued by either the Department of State or the Department of Homeland Security identifies the holder of the visa as a citizen of a foreign country who has lawful permission to enter the United States for a specific purpose and a specific period of time.

A United States passport and a nonimmigrant visa are documents of great value, not only to the individual holder of the document, but also to domestic and international criminal organizations. The passport becomes more valuable as a travel document in presenting oneself for entry into the
United States at a port of entry. Since a U.S. passport identifies the holder as a citizen of the
United States, passport holders are subject to an examination, rather than an inspection, when they present themselves for entry into the United States.

II. Statutes and Maximum Penalties

Two statutes govern passports. False Statement in Application and Use of Passport, 18 U.S.C.
§ 1542,1 and Misuse of Passport, 18 U.S.C. § 1544,2 relate to passports. Fraud and Misuse of Visas, Permits, and other Documents, 18 U.S.C. § 1546,3 is the only criminal statute which relates to visas. The statutes will be addressed in order below.

A. False Statement in Application and Use of Passport (18 U.S.C. § 1542)

Two ways exist to violate 18 U.S.C. § 1542, False Statement in Application and Use of Passport. The first is to “willfully and knowingly make any false statement” in a passport application with the goal of having the passport issued when the passport should otherwise not be issued to that applicant.4 The most common situation where a false statement in a passport application occurs is a false claim to U.S. citizenship. Also commonly seen is an individual who assumes the identity of a deceased U.S. citizen, or an individual who acquires the identity of a true living U.S. citizen without the citizen’s consent.

1 18 U.S.C. § 1542 (2012). 2 Id. § 1544.
3 Id. § 1546.
4 Id. § 1542.

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The second way to commit passport fraud is to “willfully and knowingly use or attempt to use . . . any passport” issued by way of any false statement.5 This relates to when a passport is issued to the applicant.6 To violate the statute, the applicant would then have to use, or attempt to use, the passport obtained by unlawful means.7

The maximum penalty for passport fraud is a fine not to exceed $250,000 or a maximum of twenty-five years of incarceration “if the offense was committed to facilitate an act of international terrorism (as defined in [18 U.S.C. § 2331]).”8 “[I]f the offense was committed to facilitate a drug trafficking crime,” then the maximum incarceration period is twenty years.9 “[I]f the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime” and is either the first or second offense, then the maximum period is ten years of incarceration.10 Last, if the crime was committed to facilitate “any other offense,”11 then the maximum period is fifteen years of incarceration.12 The court may also choose to impose both a fine and incarceration.13

However, the Sentencing Guidelines start with a base offense of Level 8,14 which corresponds to an advisory guideline range of zero to twenty-four months of imprisonment, depending upon the criminal history category.15 The sentencing guideline ranges may not be significant when compared to other crimes. However, the collateral consequence of losing the privilege of possessing a passport may be considered significant to the individual convicted of this offense.16

B. Misuse of Passport (18 U.S.C. § 1544)

Three ways exist to violate 18 U.S.C. § 1544, Misuse of Passport. The first occurs when a person “willfully and knowingly uses, or attempts to use, any passport issued or designed for the use of another.”17 The perpetrator of this crime is commonly referred to as an “imposter.” An imposter is an individual who is pretending to have the identity reflected in the passport.

Second, a person violates this section when she “willfully and knowingly uses, or attempts to use, any passport in violation of the conditions or restrictions therein, or of the rules prescribed pursuant to the laws regulating the issuance of passports.”18 The restrictions on the use of the passport include, but are not limited to, the applicant’s:

5 Id. (including furnishing such a passport “to another for use” as an additional means of committing passport fraud). 6 See id.
7 See id.
8 Id. (referencing § 2331(1)).

9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 U.S. SENTENCING GUIDELINES MANUAL § 2L2.2 (a) (U.S. SENTENCING COMM’N 2016) [hereinafter U.S.S.G.]. 15 U.S.S.G, ch. 5, pt. A, Sentencing Table.

16 A passport may be revoked if the “passport has been obtained illegally, fraudulently or erroneously; was created through illegality or fraud practiced upon the Department; or has been fraudulently altered or misused.” 22 C.F.R. § 51.62(a)(2) (2017). Also the Department of State, “may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national, or the Department is on notice that the bearer’s certificate of citizenship or certificate of naturalization has been canceled.” 22 C.F.R. § 51.62(b) (2017).

17 18 U.S.C. § 1544 (2012). 18 Id.

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  • not “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state”19 or “entering, or serving in, the armed forces of a foreign state”;20
  • “accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof”;21
  • “making a formal renunciation of nationality” either in the United States or “before a diplomatic or consular officer of the United States in a foreign state”;22 or
  • being convicted by a court or court martial of competent jurisdiction of “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States,” or conspiring “to overthrow, put down, or to destroy by force, the [g]overnment of the
    United States.”23

    Additionally, the individual applicant must not be “in default on a loan received from the United States under 22 U.S.C. § 2671(b)(2)(B) . . . ”;24 not “be in arrears of child support”;25 not have “seriously delinquent tax debt”;26 or not be a “sex offender.”27 In addition, the applicant must not be the following:

    • “the subject of a criminal court order . . . which forbids departure from the United States”;28 or
    • not be under subpoena from the United States “in a matter involving [f]ederal prosecution for, or

      grand jury investigation of, a felony”;29 or

    • not the subject of an arrest warrant for a felony;30
    • not the subject of a court order for commitment to a mental institution31 or “legally declared incompetent;”32
    • not the subject of an extradition or provisional request presented to a foreign country;33 or
    • is not a minor child.34

      Third, a person misuses a passport when he “willfully and knowingly furnishes, disposes of, or delivers a passport to any person, for use by another than the person for whose use it was originally issued

      19 8 U.S.C. § 1481(a)(2) (2012). 20 Id. § 1481(a)(3).
      21 Id. § 1481(a)(4).
      22 See id. § 1481(a)(5)–(6).

      23 See id. § 1481(a)(7).
      24 22 C.F.R. § 51.60(a)(1) (2017).
      25 Id. § 51.60(a)(2).
      26 Id. § 51.60(a)(3) (referencing 26 U.S.C. § 7345 (Supp. III 2015)).
      27 Id. § 51.60(a)(4) (citing 22 U.S.C. § 212b(c)(1) (Supp. III 2015) and noting additional requirements under 22 U.S.C. § 212b).
      28 Id. § 51.60(b)(2).
      29 Id. § 51.60(b)(6).
      30 See Id. § 51.60(b)(1), (8)–(9). Sub-section (1) concerns federal arrest warrants; (8) is for the Armed Services; and (9) is for state or local warrants. See id.
      31 Id. § 51.60(b)(3).
      32 Id. § 51.60(b)(4).
      33 Id. § 51.60(b)(5).
      34 Id. § 51.60(b)(7).

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and designed.”35 This section would apply to an individual who loans the passport to another person. Circumstances also exist where it may apply to individuals who are producing fraudulent passports.

The maximum penalty for passport fraud is a fine not to exceed $250,000 or not more than twenty-five years of incarceration “if the offense was committed to facilitate an act of international terrorism (as defined in [18 U.S.C. § 2331]).”36 “[I]f the offense was committed to facilitate a drug trafficking crime,” then the maximum penalty is twenty years of incarceration.36 “[I]f the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime” and is either the first or second offense, then the maximum penalty is ten years of incarceration.37 If the crime was committed to facilitate “any other offense,” then the maximum penalty is fifteen years of incarceration.38 The court may also choose to impose both a fine and incarceration.39

C. Fraud and Misuse of Visas, Permits, and Other Documents (18 U.S.C. § 1546)

Multiple ways exist to violate this statute. It appears that the authors of the statute took the two passport statutes, 18 U.S.C. §§ 1542 and 1544, and mashed them together into one long paragraph while adding new ways to violate the law. I will do my best to untangle and identify the potential violations.

First, a person violates this statute when he “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.”40

Second, an individual commits visa fraud when she “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.”41 Also, the perpetrator must know that the document is “forged, counterfeited, altered, or falsely made, or [has] been procured by means of any false claim or statement, or [has] been otherwise procured by fraud or unlawfully obtained.”42

Third, a person violates this section when he “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.”43 An individual also violates this section when she “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.”44 Last, one can violate this section by “[having] 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.”45 If a person commits these acts “under direction of the Attorney General or the

35 18 U.S.C. § 1544 (2012). 36 See id. (citing id. § 2331). 36 Id.
37 Id.

38 Id.
39 Id.
40 Id. § 1546(a). 41 Id.
42 Id.
43 Id.
44 Id.
45 Id.

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Commissioner of the Immigration and Naturalization Service, or other proper officer,” then no punishment will occur under this statute.46

Fourth, an individual commits this crime by “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” and, when doing so, the individual “personates another, or falsely appears in the name of a deceased individual.”47 One will also violate this statute when he “evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity.”48 Last, a violation occurs when one “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.”49

Fifth, a person defrauds when she “knowingly makes under oath, or as permitted under penalty of perjury under [28 U.S.C. § 1746], knowingly subscribes as true, any false statement [regarding] a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder.”50 One will also violate the statute when she “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.”51

The maximum penalty for passport fraud is a fine not to exceed $250,000 or not more than twenty-five years of incarceration “if the offense was committed to facilitate an act of international terrorism (as defined in [18 U.S.C. § 2331]).”52 “[I]f the offense was committed to facilitate a drug trafficking crime,” then the maximum penalty is twenty years of incarceration. “[I]f the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime” and is either the first or second offense, then the maximum penalty is ten years of incarceration.53 If the crime was committed to facilitate “any other offense,” then the maximum penalty is fifteen years of incarceration.54 The court may also choose to impose both a fine and incarceration.55

This statute includes another subsection (subsection b) which punishes anyone who “uses (1) an identification document, knowing . . . that the document was not issued lawfully for the use of the possessor, (2) an identification document knowing . . . 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.”56 A violation of this subsection is punishable by being “fined under this title, imprisoned not more than 5 years, or both.”57

However, Congress included a government exception in 18 U.S.C. § 1546(c).58 This subsection permits the government to issue a visa to someone who is otherwise prohibited from validly possessing a visa.59 Certain criteria must be met before a visa may be issued under this subsection.60

46 Id.
47 Id.
48 Id.
49 Id.
50 Id. (referencing 28 U.S.C. § 1746 (2012)). 51 Id.

52 Id. (referencing id. § 2331) 53 Id.
54 Id.
55 Id.

56 Id. § 1546(b) (referencing 8 U.S.C. § 1324a(b) (2012)). 57 Id.
58 Id. § 1546(c).
59 See id.

60 See id.
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III. Charging Decisions

When evaluating a case for potential prosecution, some basic starting points will assist going forward. Defining the prosecution team and the particular facts as they pertain to the investigation, and identifying any supporting evidence during the early stages of reviewing a case, are essential for a successful prosecution.

No hard and fast definition exists for the prosecution team because the team may change from case to case. Typically, the United States Attorney’s Office will work in conjunction with the
United States, Department of State, United States, Customs and Border Protection, United States, Border Patrol, Homeland Security Investigations, and perhaps state and local law enforcement agencies. Regardless of which agencies comprise the team, having the cooperation of all agencies involved is a key component to obtaining a successful resolution.

After defining the team, one must turn to the facts of the particular case. A myriad of facts exist in evaluating a case. One such fact to determine is the type of document in question. If the document in question is a U.S. passport, then sections 1542 and 1544 may apply. If the document is a nonimmigrant visa (NIV) or other travel document, then section 1546 may apply.

A. Passports

The location of the alleged criminal act is important. Numerous locations exist where an individual might commit any of the aforementioned crimes. A false statement in an application commonly occurs at an acceptance agency.61 These cases can also occur directly with the United States, Department of State at a Passport Center.

One must also keep in mind that the United States, Department of State issues passport books, which permit overseas travel to a number of different foreign countries.63 The passport card only permits land travel to and from the United States to Mexico and Canada.62

One subtle yet obvious requirement for passports is that the passport be for the use and possession by the applicant. No other person may apply for, use, or possess the passport.63 In the case of a minor child, both parents must consent to the issuance of the passport, and the minor child must be present when the application is submitted.64

These cases are typically document-laden cases. When applying for a passport, a person must prove identity and that the person is a U.S. citizen or national. Typically, proof of identity is satisfied when the person presents a validly issued photo identification from a state agency, usually a driver’s license or ID card.65 Proof of citizenship is often a certified copy of the applicant’s birth certificate.66

61 An acceptance agency is any entity approved by the U.S. Department of State to accept passport applications. See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, What Is a Passport Acceptance Facility?, U.S. PASSPORTS & INTERNATIONAL TRAVEL (last visited May 8, 2017). The two most common are the U.S. Post Office and the state Clerk of the Court.

63 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Passport Card, U.S. PASSPORTS & INTERNATIONAL TRAVEL (last visited May 8, 2017).
62 See id. (noting that the passport card also covers travel by sea and allows entrance into the United States from the Caribbean and Bermuda).

63 See 22 C.F.R. § 51.20 (2017); see also supra notes 4 and 14 and accompanying text.
64 See 22 C.F.R. § 51.28 (2017).
65 See Acceptable Proof of Identity for Passport Applications, U.S. PASSPORT SERVICE GUIDE (last visited May 8, 2017).
66 See Acceptable Proof of U.S. Citizenship for New Passport Applications, U.S. PASSPORT SERVICE GUIDE (last visited May 8, 2017).

58 United States Attorneys’ Bulletin July 2017

However, instances occur where other documents are provided.67 These documents include, but are not limited to, delayed birth certificates and affidavits attesting to the applicant’s birth.68

B. Visas

A number of visa classifications exist. They range from A through V.69 Some of the more common ones are A, B, D, E, F, K, M, T, and U. I will endeavor to give a brief overview of some of these visas. Each type of visa has its own set of rules and regulations. This means that visa violations are also driven by the type of visa. For example, an A visa requires the individual to be employed in, or be a family member of someone employed in, a diplomatic mission;70 B1 and B2 visas permit temporary travel but not residency;71 F1 requires the individual to be enrolled in an academic program;72 and a U visa is for the victims of crimes.73 Employment visas are E, H, L, O, P, I, J,74 whereas study and exchange visas are F and M visas.75

The common denominator throughout all of the visas is that an application must be filled out.76 Most importantly, the applicant must swear to the veracity of the information contained in the application.77 As with passports, visas are only for the use and possession by the applicant.78 No other person may apply for, use, or possess the visa.79 In the case of a minor child, the minor child must be present when the application is submitted.80

Similarly, when applying for a visa, applicants must prove their identity, that they are foreign nationals, and that they are otherwise qualified to possess the visa.81 They must swear to the veracity of their statements and qualifications before submitting their application.82 Visa fraud can also occur in multiple different places, such as during a field encounter with law enforcement, during the online application process, at a United States Embassy, or at a Consulate.

“Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence.”83 As part of obtaining a visa, individuals must make a written application.84 One can now find most of the

67 See Secondary Proof of Citizenship, U.S. PASSPORT SERVICE GUIDE (last visited May 8, 2017).
68 Id.
69 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Director of Visa Categories, U.S. VISAS (last visited May 8, 2017).
70 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visas for Diplomats and Foreign Government Officials, U.S. VISAS (last visited May 8, 2017).
71 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visitor Visa, U.S. VISAS (last visited May 8, 2017).
72 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Student Visa, U.S. VISAS (last visited May 8, 2017). 73 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visas for Victims of Criminal Activity, U.S. VISAS (last visited May 8, 2017).
74 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Directory of Visa Categories, U.S. VISAS (last visited May 8, 2017).
75 See supra note 69.
76 See 22 C.F.R. § 42.67(a) (2017).
77 § 42.67(a)(2).
78 See supra note 45 and accompanying text.
79 See id.
80 22 C.F.R. § 51.28(a)–(c) (2017). (covering minors under the age of sixteen in subsection a, minors over sixteen in subsection b, and all minors in subsection c).
81 See supra note 77.
82 Id.
83 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visa Types, APPLY FOR A U.S. VISA IN INDIA (last visited May 8, 2017).
84 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Forms, U.S. VISAS (last visited May 9, 2017).

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applications online.85 On each of the applications, applicants must attest to the veracity of the information contained in the application.86 One condition in each of the nonimmigrant visa applications is that applicants maintain a foreign residence which they will not abandon.87

When reviewing these cases, one should obtain the supporting documentation and verify the veracity of the document(s). Also, even if individuals validly possessed a visa, if they remain in the United States after the expiration of the visa, they may be subject to criminal prosecution for a violation of 18 U.S.C. §1546.88

1. A Visas—Diplomat or Foreign Government Official

There are three types of diplomatic visas, A-1, A-2, and A-3. “Diplomats and other foreign government officials traveling to the United States to engage solely in official duties or activities on behalf of their national government must obtain” either an A-1 or A-2 visa before entering the
United States.89 They are not permitted to “travel using visitor visas or [travel] under the Visa Waiver Program.”90 Few exceptions to this rule exist.91

“A” visa holders may also be immune from certain prosecutions.92 If a target possesses an “A” visa, it is strongly recommended that the prosecutor contact the U.S. Department of State to determine if the visa holder is entitled to any immunity. Not all “A” visa holders will qualify for immunity.93 There may also be additional steps within the Department of Justice that need to be taken if the target of the investigation holds this classification of visa.94

2. B Visas—Business or Tourism

These are the most common visas subject to criminal prosecution. B1 and B2 visas “are [NIVs] for persons who want to enter the United States temporarily for business (visa category B-1), tourism, pleasure or visiting (visa category B-2), or a combination of both purposes (B-1/B-2).”95 To be eligible for a B1/B2 visa, applicants must (1) prove they are foreign nationals, (2) prove they are financially solvent, (3) prove their identities, and (4) swear or affirm that they will not abandon their foreign residences.96

“The Border Crossing Card (BCC) is both a BCC and a B1/B2 visitor’s visa. A BCC [is] also referred to as a DSP-150[].”97 It is similar in size to a credit card and is usually valid for ten years after it is issued.98 In order to qualify for a BCC, the applicants must prove that they (1) are citizens of and

85 See id.
86 See id.
87 See id.
88 See 18 U.S.C. § 1546(a) (2012).
89 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visas for Diplomats and Other Foreign Officials, U.S. VISAS (last visited May 9, 2017).

90 See id.
91 See id.
92 See Convention on Privileges and Immunities of the United Nations art. 5, § 19, Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900.
93 See U.S. DEP’T OF STATE, OFFICE OF FOREIGN MISSIONS, DIPLOMATIC AND CONSULAR IMMUNITY 17-19.
94 See U.S. DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL § 1-13.120 (2011).
95 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visitor Visa, U.S. VISAS (last visited May 9, 2017).
96 See 8 U.S.C. §§ 1201, 1202 (2012 & Supp. III 2015).
97 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Border Crossing Card, U.S. VISAS (last visited May 9, 2017).
98 Id.

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residents of Mexico, (2) “meet the eligibility standards for B1/B2 visas,”99 and (3) “must demonstrate that they have ties to Mexico that would compel them to return after a temporary stay in the United States.”100

Some travel restrictions exist on B-visas. Some examples of activities that require different categories of visas and cannot be done while on a visitor visa include: study; employment; “paid performances, or any professional performance before a paying audience”; “arrival as a crewmember on a ship or aircraft”; “work as foreign press, radio, film, journalists, and other information media”; and “permanent residence in the United States.”101

Some of the other more common visa types that may be encountered are the following:

  • The D Visa, or “crewmember” visa.102 This visa is for individuals “working on board sea vessels or international airlines in the United States, providing services required for normal operation and intending to depart the United States on the same vessel or any other vessel within 29 days.”103
  • The E visa, or the “treaty trader/treaty investor” visa.104 Treaty Trader and Treaty Investor visas, E-1 and E-2 respectively, “are for citizens of countries with which the United States maintains treaties of commerce and navigation.”105 In order to qualify for this type of visa, the individual must be coming to the United States to either “engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country; or [to] develop and direct the operations of an enterprise in which [the individual has] invested a substantial amount of capital.”106 Some examples of types of enterprises that constitute trade under E visa provisions are “international banking[,] insurance[,] transportation[,] tourism[,] and communications.”107
  • The F and M visas are more commonly known, respectively, as the “student visa” and the “vocational visa.” In order for a foreign citizen or national to study in the United States, the individual must have a student visa.108 The course of study and the type of school the individual plans to attend determines whether she needs an F-1 or an M-1 visa. F visas are for individuals who are attending a university or college, high school, private elementary school, seminary, conservatory, or other “academic institution, including a language training program.”109 M visas are for individuals who are attending a “[v]ocational or other recognized nonacademic institution, other than a language training program.110 As with all of the visas, other requirements and restrictions exist on these visas.111

    As one can see, many ways exist for someone to violate or improperly possess a visa. Each case will take time and effort to untangle and gather the necessary evidence to bring about a conviction.

    99 Id.
    100 Id.
    101 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Visitor Visa, U.S. VISAS (last visited May 9, 2017).
    102 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Crewmember Visa, U.S. VISAS (last visited May 9, 2017). 103 Id.
    104 U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Treaty Trader & Investor Visa, U.S. VISAS (last visited May 9, 2017).
    105 Id.
    106 Id.
    107 Id.
    108 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Student Visa, U.S. VISAS (last visited May 9, 2017). 109 Id.
    110 Id.
    111 Id.

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When evaluating the case, many documents will assist in either proving or disproving the veracity of the statements contained in the application process. Through working closely with the agents, it is helpful to obtain a properly certified birth record for true identity, a certified copy of the death certificate (if appropriate), marriage or divorce decree, prior passport application(s), prior visa application(s), school records, property records, certified conviction records, motor vehicle records, and, perhaps, immigration records. After identifying the documents and deciding to accept prosecution, I strongly recommend obtaining certified copies of these documents. The sooner one obtains the documents, the sooner one can identify and begin to work through any evidentiary issues.

3. Evidence

Once satisfied that sufficient documentation exists to support the alleged criminal conduct, one needs to be able to introduce the documents into evidence. The documents used in these prosecutions can be both foreign and domestic public records. In addition to other applicable rules of evidence, i.e. relevance and prejudice, Federal Rules of Evidence Rules 803,112 902,113 and 903114 apply to these types of prosecutions.

In both passport and visa applications, individuals must prove their citizenship.115 Birth certificates or birth records are commonly used to substantiate the location of an individual’s birth. For a passport, applicants must prove they are citizens of the United States or non-citizen nationals.116 For a visa application, applicants must prove they are citizens of a country other than the United States.117 The easiest way for the applicant to satisfy this requirement is to present a timely filed and validly issued birth certificate or record.

In the United States, and in most foreign countries, the government keeps official records of births, marriages, and deaths. This official record-keeping is typically done in the ordinary course of a particular agency’s function within the government and in compliance with a legal duty.118 Therefore, these documents are usually admissible, using what many refer to as the “Public Records Exception.”119 Provided the document comports with the requirements of Rules 401120 and 403,121 Rule 803(8) is commonly used to establish the evidentiary foundation for the admission of the document.

The analysis may seem somewhat circular; taking it piece by piece may help make sense of it all. Generally, a document is hearsay.122 Strictly speaking, hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”123 However, some documents may fall within a hearsay exception. The most common exception is the “records of regularly conducted activity” exception, found in Rule 803(6).124 For the analysis of this article, I will only review the pertinent subsections of this rule. These subsections provide that “[a] record of an act [or] event” may be admissible “if (A) the record was

112 FED. R. EVID. 803.
113 FED. R. EVID. 902.
114 FED. R. EVID. 903.
115 See supra notes 66 and 96.
116 Passport Requirements: What It Takes to Get an American Passport, U.S. PASSPORT SERVICE GUIDE (last visited May 9, 2017).

117 See supra note 96.
118 FED. R. EVID. 803(6), (8)–(9). 119 See id.
120 FED. R. EVID. 401.
121 FED. R. EVID. 403.
122 FED. R. EVID. 801.
123 FED. R. EVID. 801(c)(1)–(2). 124 FED. R. EVID. 803(6).

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made at or near the time by—or from information transmitted by—someone with knowledge [of the event]; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;” and “(C) making the record was a regular practice of that activity . . . .”125

Certified domestic documents of regularly conducted activity are admissible provided they meet the requirements of Rule 803(6)(A)–(C), above.126 The certification from the custodian or other qualified person must comply with a federal statute or rule as set forth by the Supreme Court.127 Finally, the party seeking to offer the certified document during a hearing must give the opposing party written notice of the intent to seek admission of the record, and make the certification available for inspection.128 The opposing party needs a fair opportunity to make any challenge it deems appropriate.129 If the government is offering the certified record, then the ongoing disclosure obligations should be coupled with either an email or letter stating the government’s intent to offer the document at a hearing.

Certain situations may exist where a marriage is not required to be reported to the government but where a marriage certificate is still created at, or near, the time of the event.130 Baptismal records are typically kept with the religious entity where the ceremony occurred not with the government. Both records may be admissible into evidence provided they comply with the requirements of Rule 803(12).131 Rule 803(9) relates to “public records of vital statistics,”132 and Rule 803(12) relates to “certificates of marriage, baptism, and similar ceremonies.”133 These are the rules by which the certified birth record of the defendant may be introduced into evidence. These rules also provide the means by which the defense would seek to introduce baptismal records.

Rule 803(12) is the section where issues tend to arise during the case.134 The timing of the filing of the records is important. The document created closest in time to the event typically becomes the controlling document. This is because not only is the birth record primary evidence of the birth, but typically, there is no other contradicting document preceding its issuance. For example, if a person has a birth record indicating a date of birth as January 1, 1947, in Hermosillo, Mexico, and the record is filed on February 8, 1947, this document would be considered “timely filed in Mexico.” Therefore, logic would provide that the birth record becomes the controlling document to establish details of the individual’s birth.

A situation may arise where an individual has obtained a court-ordered delayed birth record from a state court in the United States. Usually, the court order occurs many years after the actual birth, but the defense claims that the court order should be the controlling document establishing the defendant’s birth in the United States. The Ninth Circuit addressed this issue in a couple of cases. In Mah Toi v. Brownell, the court found that, “[n]either law nor reason justifies holding an order to be of greater evidentiary value than a certificate in establishing the place and time of birth when such facts are in issue in a proceeding concerned with United States citizenship.”135 In United States v. Casares-Moreno, a California district court found the evidentiary weight of a court-ordered birth certificate by the Californian Superior Court

125 FED. R. EVID. 803(6)(A)–(C). 126 FED. R. EVID. 902(11).
127 Id.
128 See id.

129 Id.
130 FED. R. EVID. 803(12).
131 Id.
132 FED. R. EVID. 803(9).
133 FED. R. EVID. 803(12).
134 Id.
135 Mah Toi v. Brownell, 219 F.2d 642, 644 (9th Cir. 1955).

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had the same evidentiary weight as a timely filed registration of birth.136 The court noted that both documents are prima facie evidence, but not conclusive; that is, the order creates a rebuttable presumption.137

Rule 803(12)(C) sets a vague time frame for the filing of a document recording a marriage, baptism, or similar ceremony, as it merely requires that the document must “purport[] to have been issued at the time of the act or within a reasonable time after it.”138 The phrase “within a reasonable time after it” comes into play where the defense makes arguments that the baptismal certificate is more “accurate” or “reliable” than the birth certificate, usually when there is no birth record to substantiate the defense theory. Focusing on the document which is the primary evidence of birth, i.e. a timely filed birth record, is crucial. Most governments have requirements for the filing of birth records. One could argue, because a government has these filing requirements for birth registrations, that the documents are more reliable. Additionally, a newborn child is highly unlikely to formulate such a plan for the purpose of fraudulently obtaining a U.S. passport. When following the chronology of the defense attempts to legitimize the defendant’s fraudulent home birth, the filing of the documents usually tells a story that tends to show the defendant’s willful and knowing actions of attempting to fraudulently obtain either the passport or visa.

Just as with domestic documents, certain foreign documents exist which are “self-authenticating.” Many times these cases involve the use of foreign birth records and documents. In this scenario, we look to Rules 902139 and 903140 for guidance. Foreign documents can be self-authenticating if they meet the requirements of both rules. Generally, the document must be signed “by a person who is authorized by the foreign country’s law to” sign the document and “must be accompanied by a final certification [which] certifies the genuineness of the signature and the official position of the signer . . . .”141 A number of enumerated individuals can sign the certification.142 Many refer to the certification as the “apostille” copy of the document.143

When dealing with a certified foreign document for regularly conducted activity, the document must first meet all the requirements of Rule 902(11),144 with one slight modification to the certification: the certification “must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification [was] signed.”145 Typically, requesting an “apostille” copy of the birth record will satisfy this requirement.

4. United States Department of State

Turning to the other members of the prosecution team, the United States Department of State-Bureau of Consular Affairs is the official custodian of records for passport and nonimmigrant visa records.146 Therefore, all requests for certified documents and testimony related to passports or nonimmigrant visas are handled by Consular Affairs.147 The request for testimony should be done in

136 United States v. Casares-Moreno, 122 F. Supp. 375, 377 (S.D. Cal. 1954) aff’d, 226 F.2d 873 (9th Cir. 1955). 137 See id.
138 FED. R. EVID. 803(12)(C).
139 FED. R. EVID. 902(3), (12).

140 FED. R. EVID. 903.
141 FED. R. EVID. 902(3).
142 Id.
143 See, e.g., United States v. Vidrio-Osuna, No. 05-50224, 2006 WL 1765764, at *1, 198 F. App’x 582, 583 (9th Cir. 2006).
144 FED. R. EVID. 902(11).
145 FED. R. EVID. 902(11)–(12).
146 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, About Us, TRAVEL.STATE.GOV (last visited May 10, 2017).
147 See 22 C.F.R. § 172.4(b), (c) (2017).

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writing in the format provided.148 This request includes all testimony. The memorandum requesting testimony should be electronically submitted. Once submitted, Consular Affairs personnel will review the request and send a reply.149 Typically, the agencies can work out an amicable resolution regarding witness testimony. Either the prosecuting Assistant United States Attorney or the Diplomatic Security Special Agent can submit the memo. A practical tip: one should request a certified copy of any possibly needed document early in one’s case preparation. Also, when requesting testimony, one should be sure to allow sufficient time for the Department of State to review the request.

IV. Defeating the Potential Defenses

Some elements of the offenses are more prone to litigation. Most often the defendants will challenge the “knowingly and willfully” mens rea. The Ninth Circuit has held that “a violation of § 1542 does not require specific intent. A conviction under the first paragraph of § 1542 requires only that, in applying for a passport, the defendant made a statement that the defendant knew to be untrue.”152 The Ninth Circuit also stated:

The Supreme Court long ago established that the second paragraph of § 1542 does not require specific intent. In Browder v. United States, the Court defined “willfully and knowingly” in the second paragraph to mean “deliberately and with knowledge and not something which is merely careless or negligent or inadvertent.”150

In passport cases, a common defense is that the defendant was born in a home in the
United States and, therefore, was not registered at the time of birth. Also, some defendants may assert that they were brought over to the United States at a young age and have always thought they were U.S. citizens. Some may even claim dual citizenship but lack sufficient documentation to substantiate their claim.

To show requisite intent at the time the defendant executed the application for either the passport or visa, proving the true identity in the passport or visa is crucial. Many times the owner of the true identity is unaware that the identity has been compromised. Often, the defendant assumes the identity of a deceased individual. Fingerprints from both the defendant and the owner of the true identity can assist in confirming identity. Good, old-fashioned police work pays dividends. Interviewing the owner of the true identity, the owner’s family members and friends, and even searching public records are gold mines for information. If these individuals are willing to provide statements or give testimonies, such help will only strengthen the case. It is my experience in these situations that the owner of the true identity or the owner’s family is willing to assist in the investigation.

In instances where the defendant claims a home birth in the United States or a birth that was not otherwise recorded, proving the falsehood can be challenging. Sometimes taking a step back from the case and just thinking about what typically happens when a child is born in the United States can be helpful. Each state now has laws which require a person who delivers a newborn to register the birth within a few days with the state where the child was born.151 Most often, defendants who claim a home birth were born in an era where the immigration laws of the United States were less stringent. However, tracking down those people who swore to affidavits witnessing the birth and finding family members of either the defendant or the midwife can be incredibly helpful. It is fair to say that having a child born in a home is a memorable experience for all of those present. One should pay close attention to any

148 See id. § 172.5(a).
149 See id. § 172.4(b), (c).
152 United States v. Alfang Ye, 808 F.3d 395, 399 (9th Cir. 2015).
150 Id. (emphasis omitted) (quoting Browder v. United States, 312 U.S. 335, 341 (1941)).
151 See, e.g., 28 PA. CODE § 1.1 (West, Westlaw through 2017 47 Pa. Bull. 27) (requiring certificate within ten days of birth); FLA. STAT. ANN. § 382.013 (West, Westlaw through 2017 First Regular Session of the Twenty-Fifth Legislature) (requiring certificate to be filed within five days of birth).

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discrepancy in their stories because it may become important later in the case. Additionally, if any legal proceedings occurred, obtaining the entire file, including transcripts from the court, can be helpful in proving that at the time of the application the defendant knowingly lied.

In visa fraud cases, each visa classification will present different defenses. Some common defenses include arguing that the defendant is really the person who possesses the document, despite failing to resemble the photograph contained in the visa. Some defendants may claim that they did not know the visa was fake, and others may claim that they are actually the proper possessor of the visa. Possession of a visa beyond its expiration is also potentially subject to prosecution.152 In addition, using a visa for something other than its permitted use is potentially prosecutable.153 For example, an individual who possesses an A-2 visa and travels on the visa while facilitating alien smuggling may be subject to prosecution.

V. Other Ways in Which Passport and Visa Charges Can Assist

Passport and visa fraud charges can be instrumental in the disruption of domestic and international criminal organizations. These criminal organizations rely upon the large number of people who enter the United States on a daily basis not only to further their nefarious activities but also to assist in masking these activities. Because of limited government resources and a large number of travelers, these criminal organizations can use visas and, to some extent, passports to avoid detection. Successful prosecutions of these cases assist in disrupting these criminal organizations.

Sometimes an investigation may be progressing, but the prosecutor may be unable to prosecute an individual for possible involvement. For example, there may be an investigation into a narcotics trafficking organization. During the investigation, an individual is identified as being the person who transports either narcotics or bulk currency for the organization. However, law enforcement is unable to catch this individual with either narcotics or bulk currency. Nevertheless, this same person may possess a nonimmigrant visa obtained by fraud. The fraud would likely arise when swearing or affirming the purpose of the applicant’s travel; after all, narcotics trafficking is not a permitted purpose for a visa. A successful prosecution for visa fraud, pursuant to 18 U.S.C. § 1546,154 may be a means to disrupt the international criminal organizations. A couple of the collateral consequences for this conviction are the possible removal of this individual from the United States and the individual’s being ineligible for another visa.

VI. Additional or Companion Charges

A careful review of the particular facts and circumstances of each case may lead to additional charges. Those alternative or companion charges may include aggravated identity theft (18 U.S.C.
§ 1028A),155 false claims to citizenship (18 U.S.C. § 911),156 false statements (18 U.S.C. § 1001),157 and illegal re-entry after deportation (18 U.S.C. § 1326).158 These criminal charges may permit you to more easily introduce additional evidence that tends to prove the defendant’s knowing and willful false statement.

152 See supra note 85 and accompanying text. 153 See generally 18 U.S.C. § 1546 (2012). 154 Id.
155 Id. § 1028A.

156 Id. § 911.
157 Id. § 1001.
158 8 U.S.C. § 1326 (2012).

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VII. Conclusion

Prosecutions for passport and visa fraud may not be the most high-profile prosecutions and may not result in a headline where the defendant received a significant term of imprisonment. They are, however, a valuable tool to use when protecting our nation from threats, both foreign and domestic, and attempting to disrupt international criminal organizations. The collateral consequence of losing the privilege to enter the United States is a powerful tool to assist in furthering this goal.

ABOUT THE AUTHOR

❏ Matthew Eltringham is an Assistant United States Attorney assigned to the Organized Crime Drug Enforcement Taskforce (OCDEFT). He has fourteen years of trial experience, seven with the United States Attorney’s Office in the District of Arizona, and seven as an Assistant District Attorney in Pennsylvania.

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