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Laws under which violations possibly occurred in the Postville-Teras scheme

The Immigration and Nationality Act (INA) contains provisions which prohibit document fraud as it relates to the application for visas. Sec. 274C. of the Immigration and Nationality Act (INA) [8 U.S.C. 1324c] provides that it is unlawful for any person or company to:

    (1) forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act or to obtain a benefit under this Act,

    (2) use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this Act or to obtain a benefit under this Act, or

    .........

    (5) prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted.

To violate this section, a person does not have to make an actual false statement in a visa application. The definition of the term "falsely make" means to "prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted." Therefore, failing to provide correct information about why the application was submitted and what the visa would be used for may be enough to incur a criminal violation. For example, obtaining a visitors visa for the purpose of becoming employed in the US may be considered a violation.

Title 18, United States Code

 The Immigration and Nationality Act is not the only source of criminal liability for immigration document fraud. Title 18 of the United States Code is also applicable. Chapter 47, Section 1546 States:

    (a) Whoever 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, or 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, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

    Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or 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 - shall be fined under this title or imprisoned not more than 10 years (in the case of the first or second such offense, or 15 years (in the case of any other offense), or both.

 
Forfeiture Provisions

Section 982 provides that a court shall order that a person convicted of document fraud forfeit (i) any conveyance, including any vessel, vehicle, or aircraft used in the commission of the violation and (ii) any property real or personal that constitutes, or is derived from or is traceable to the proceeds obtained directly or indirectly from the commission of the offense or that is used to facilitate, or is intended to be used to facilitate, the commission of the offense.

Racketeering and Organized Crime

The law provides for prosecution of persons under the Racketeering and Organized Crime provisions of section 1961 for misusing visas.  "Racketeering activity" means any act which is indictable under title 18, United States Code: (among other things) section 1546 relating to fraud and misuse of visas, permits, and other documents. Of course, conviction under this law brings with it a much harsher penalty of 20 years maximum in a federal prison.

Company Accomplice Liability

There is a concept in criminal law—included in the criminal code—called "accomplice liability." This concept provides that any person who (recklessly, knowingly or intentionally) assists another in committing a crime is also guilty of committing the crime:

    (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (18 U.S.C. 2)

The definitions of the various terms in the above statute are relatively self evident. For instance, anyone who advises a person about how to do something which is a violation of the law has "counseled" the person and is equally guilty if the other person follows the advice and commits the crime. Or, a person would be said to have "induced" another to commit a crime if there was an offer of financial reward. "Procuring" the commission of a crime could include paying another person to commit the offense (even if that other person is an attorney preparing that application).

Penalty

Fines of not less than $250 and not more than $2,000 for each document that is the subject of a violation are imposed for a violation of this section.

Imprisonment in a federal prison is possible under certain circumstances for persons who prepare the actual application on behalf of another:

    (1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f)) for immigration benefits, shall be fined in accordance with title 18, United States code, imprisoned for not more than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.

    (2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this Act, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, United States Code, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such application.

INA sec. 274C(e) [1]

CRIMINAL PROSECUTION FOR VISA FRAUD, Immigration Daily, 2001

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