Immigration Criminal Offenses

Published on: October 27, 2011

An aggravated identity theft conviction upheld on circumstantial evidence the defendant knew the false identity belonged to a real person

In U.S. v. Doe, the defendant John Doe went to the Miami passport agency office to apply for a passport presenting drivers license, birth certificate and other identifying documents in the name of Laurn Daniel Lettsome. Doe was not Lettsome. When the passport agency official became suspicious, Doe was asked to return with more identification document. He then returned and suspecting fraud, the passport officials located the real Lettsome and discovered he was not the person who had applied for a passport. The defendant was called “John Doe” in this case because the government claimed it did not know his true identity.

Doe was charged with making a false statement in a passport application and two counts of aggravate identity theft. Doe pled guilty to making a false statement in a passport application but went to trial on the aggravated identity theft, claiming that the government failed to prove beyond a reasonable doubt that Doe knew the false identification he was using belonged to a real person. The aggravated identity theft conviction provides for a mandatory two year sentence for possessing an identification of another person.

In the benchmark decision of Flores-Figueroa, the U.S. Supreme Court required the government to show the defendant knew the identification used belonged to another person. The Supreme Court acknowledged there were many ways the government could show this through circumstantial evidence. Following this decision, the 11th Circuit Court of Appeals affirmed an aggravated identity theft conviction where it was shown the defendant had been successful in obtaining a drivers license or passport using the victim’s personal information. There was no need to show the defendant had knowledge of the rigorous verification process.

Here, the appellate court found circumstantial evidence that Doe knew the identification belonged to a real person by Doe’s repeated and successful testing of the authenticity of the victim’s identifying information prior to the crime, and by his using the birth certificate and social security card to obtain drivers license in two jurisdictions – the Virgin Islands and from the state of Florida. Doe also opened a bank account and obtained a credit card in the false name.

Even though the government did not present direct evidence that Doe knew of the verification process to which he subjected Lettsomes’ identifying documentation, the Eleventh Circuit precedent makes clear that it was not required to do so. A rational jury could have inferred based on ordinary human experience that federal and state governments routinely verify the authenticity of the identifying documentation. Also, the passport application say that documents and statements presented are all subjected to verification. Doe’s conduct could be understood to mean that he had unfaltering confidence in his ability to obtain a U.S. passport using Lettsome’s identification.

Evidenced showed Doe showed no trepidation about the possibility that Lettsome’s identifying information (his Virgin Islands D.L. and Florida D.L.) were not genuine. A rational jury could conclude beyond a reasonable doubt that Doe never doubted for a moment that Lettsome identifying information belonged to a real person. Otherwise, the increased scrutiny from an official, on Doe’s first visit to the passport agency would have given Doe great pause about continuing the effort to obtain a passport.
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Published on: October 25, 2011

In deciding that an alien’s conviction for false imprisonment was a crime involving moral turpitude, the Immigration Judge erred by considering evidence that was extraneous to the record of his conviction.

by The Swartz Law Firm

In Fajardo v. U.S. Attorney General the court of appeals reversed an order of removal. Soon after he entered the U.S. from Cuba, Fajardo was arrested and convicted of false imprisonment, misdemeanor assault and misdemeanor battery as a result of an altercation with his wife. Three years later when Fajardo was returning from a visit abroad, he was stopped at the Miami International Airport and placed in removal proceedings by the Department of Homeland Securities on the ground that his conviction for false imprisonment qualified as a crime involving moral turpitude. The Immigration Judge concluded that the assault and battery convictions were not crimes involving moral turpitude. It did however find the conviction for false imprisonment did constitute a crime of moral turpitude and ordered his removal on that ground.

To determine whether a crime constitutes a conviction of a crime involving moral turpitude, the 11th Circuit Court of appeals and the Board of Immigration Appeals has historically looked to the inherent nature of the offense as defined by the statute, rather than the circumstances surrounding the defendants’ particular conduct. Thus the “focus of the immigration authorities must be on the crime which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed.” This is known as the categorical approach. Stated another way, the categorical approach requires “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”

However, if the statutory definition of a crime encompasses some conduct that categorically would be ground for removal as well as other conduct that would not, then the record of conviction, that is the charging document, the plea, verdict and the sentence may also be considered. This has been referred to as the modified categorical approach.

Published on: September 20, 2010

Entering the United States following deportation was not barred by the statute of limitations; United States v. Garcia

by The Swartz Law Firm

Federal law makes it a crime for an alien to enter the United States after being deported. In this case the defendant was convicted of the Federal offense of reentering the United States after having been deported. In U.S. v. Garcia, The defendant was not charged until 7 years after he came in illegally. The defendant moved to dismiss the charges claiming that the 5 year statute of limitations had expired.

The facts showed as follows:
• The defendant entered the United States illegally • two years after his illegal reentry, he married a United States citizen
• His wife filed an I-130, the first step for aliens seeking a green card
• About 7 years after she filed the I-130, he was indicted for reentry after deportation.

The federal court of appeals court rejected the statute of limitations argument. It found that there was no evidence Immigration and Customs Enforcement (ICE) knew or should have known of his illegal reentry based on the information provided in the I-130. Under the totality of the circumstances, the appellate court could not find the immigration authorities failed to act with reasonable diligence in investigating the defendant’s status to determine he was the person that was deported.

The court of appeals did reduce the defendant’s sentence by rejecting the enhancement for a prior aggravated assault. It found the prior conviction did not fall under the crime of violence definition. The defendant challenged the sentencing court’s 16-level Sentencing Guidelines enhancement resulting from a finding that the defendant’s prior aggravated assault conviction was a crime of violence.

The court of appeals found that the label given to a prior conviction by the state statute is not dispositive of the question whether to prior offense is a crime of violence. Furthermore, the court examined the statute and found a defendant could be convicted of acting recklessly and not intentionally or willfully. With insufficient evidence to show this prior conviction was an aggravated felony, the defendant’s conviction for assault was therefore not a crime of violence.
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