Offense
Manufacture, sell false documents with intent to conceal immigration status of another
Aggravated Felony (AF)
Obtain 364 days or less to avoid AF charge.
Likely AF if loss to victim/s exceeds $10k
See Advice
Crime Involving Moral Turpitude (CIMT)
Likely charged as a CIMT, although imm advocates should explore arguments against this. There is no intent to defraud or harm.1Pen C §§ 112, 113 as a CIMT. The BIA has found that “impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude,” even without an element of fraud. See, e g., Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (false statement to obtain a passport). However, advocates may argue that Pen C §§ 112, 113 does not require intent that the documents be used to make a false statement to government; it includes the intent to conceal immigration status for any purpose. See, e.g., People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished) (man used false document to try to get driver’s license to be able to retrieve wife’s towed car). In addition, the Ninth Circuit has required intent to defraud or cause harm for moral turpitude purposes. See, e.g., cases cited for offenses such as Pen C § 530.5. While advocates may assert this untried defense, defenders should not rely upon it succeeding.
Other Removal Grounds
Document or visa fraud. If the documents are visas or other docs intended to obtain imm benefits, including an I-9, conviction could support a civil hearing under 8 USC 1324c to make a finding of deportable document fraud. Might also trigger visa fraud.
Advice and Comments
AF. Avoid a sentence imposed of 1 year or more on any single count, because ICE may charge this as an AF as document fraud, forgery, counterfeiting, or perhaps obstruction of justice. Immigration advocates may have arguments against this, but it is far better to avoid 1 year.2Pen C §§ 112, 113 as an AF if a sentence of a year or more is imposed. This offense might be charged as an aggravated felony as counterfeiting, or under some other category, if a year or more is imposed on a single count. See comments in the Overview of this document, and see Note: Sentences at www.ilrc.org/chart, for discussion of how to accept significant jail or prison time but avoid a one-year sentence for immigration purposes.
Pen C § 112 (misdemeanor) and § 113 (felony) punish a person “who manufactures or sells any false government document with the intent to conceal the true citizenship or resident alien status of another person…” It defines “government document” as “any document issued by the United States government or any state or local government, including, but not limited to, any passport, immigration visa, employment authorization card, birth certificate, driver’s license, identification card, or social security card.” (Emphasis supplied.)
AF as document fraud. A state offense that is analogous to 8 USC § 1546(a) is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(P). Advocates have a strong argument that Pen C §§ 112, 113 are overbroad and indivisible compared to 8 USC § 1546. Therefore, even if a sentence of a year or more is imposed, the conviction should not be held an AF under this section. (But see counterfeiting and forgery, below.)
Sections 112, 113 punish a person who manufactures or sells a range of federal and state documents, including birth certificate and driver’s license, with the intent to “conceal” immigration or citizenship status for any purpose. Section 114 punishes a person who uses a false document with that intent.
In contrast, 18 USC § 1546(a) punishes a person who forges, counterfeits, etc. 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 possesses, uses, receives, such a document, plus offenses related to those documents and that purpose.
Sections 112, 113 are broader than 18 USC 1546(a) because they include a broader range of documents, and with a broader intent. While § 1546 is limited to documents that are used for immigration purposes such as entry, authorized stay, and employment authorization, §§ 112, 113 include documents used simply to conceal immigration status for any purpose. Sections 112, 113 should be found indivisible because the only purpose is “to conceal” the true status of the person. This includes concealing immigration status for non-federal purposes. For example, a man was convicted of Pen C 114 (“use” one of these documents) when he attempted to use a fake green card to get a driver’s license, which he needed so that he could retrieve his wife’s towed car. People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished). The single word “conceal” cannot be found divisible between concealing for immigration purposes and concealing for other purposes. Second, there is no indication that a jury must unanimously agree as to the type of document in §§ 112, 113.
AF as forgery. A conviction of forgery is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(R). The Ninth Circuit held that the “generic, core definition of forgery … requires intent to defraud…” Morales-Alegria v. Gonzales, 449 F.3d 1051, 1056 (9th Cir. 2006). Immigration advocates can investigate defenses based on the fact that Pen C §§ 112-114 do not have an intent to defraud, or to gain at another’s expense. See, e.g., People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished) (man obtained drivers’ license using false green card because he needed a license to retrieve his wife’s towed car.) The also could investigate the definition of a “false document” in §§ 112-114, to see if it requires a forged document as opposed to something else.
AF as counterfeiting. This may be the most difficult. A conviction of counterfeiting is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(R). If the term “false document” in Pen C §§ 112-114 includes only counterfeit documents, this meets a key element of counterfeiting. The Ninth Circuit defined an offense “relating to counterfeiting” broadly for this purpose, for example, it includes possession with intent to defraud. Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000). However, if counterfeiting, like forgery, requires an intent to defraud, Pen C §§ 112-114 may be distinguishable.
AF as obstruction of justice. Conceivably it would be charged as obstruction of justice, under the vague definition set out in Pugin v. Garland, No. 22-23 (June 22, 2023). See Advice to PC § 32 for further information.
AF as crime of deceit with loss to victim/s exceeding $10,000, assuming there are “victims” to this offense.3AF as fraud and deceit. A crime involving fraud or deceit is an AF if the loss to the victim/s exceeds $10,000. See 8 USC § 1101(a)(43)(M)(ii). Pen C §§ 112, 113 might be held an AF if there is such a loss. However, it is not clear that persons purchasing these objects, who know that the documents are not lawfully valid, can be termed “victims” of the offense.