Court Approve Civil Penalties for Use False Documents

In 1990, Congress passed a law that created civil penalty, apart from removal or criminal document fraud proceedings, for individuals and entities that engage in immigration related document fraud. The law is known as INA section 274C. It provides for civil fines, injunctions and severe – usually permanent- immigration bar to people who violate it. Six years ago, Congress expanded the definition of document fraud to include persons who put false information on INS applications or forms as well as those who knowingly assist them. Before the enforcement of the law was underway, the courts enjoined INS from enforcing it because of questions regarding the validity of the forms and procedures. After five years, a settlement has been reached ending the litigation. Now INS is free to start new 274C enforcement efforts.

INS 274C makes it unlawful for any person or entity to satisfy an immigration requirement or obtain an immigration benefit by knowingly forging, counterfeiting, altering or falsely making any document; using, attempting to use, possessing, obtaining, accepting, receiving or providing any forged, counterfeit, altered or falsely made document; using or attempting to use or to provide or attempting to provide someone else’s document; accepting, receiving or providing someone else’s document for the purpose of complying with the employer sanction verification requirements; preparing, filing or assisting another in preparing or filing any application with knowledge or in reckless disregard of the fact that the application or document was falsely made or does not relate to the person on whose behalf it is being submitted; or, presenting before boarding a boat, train or airplane bound for the United States a document which relates to the alien’s eligibility to enter the U.S. and to fail to present such document to an immigration officer upon arrival at the U.S. port of entry (i.e. using a false passport and then destroying it while en route to the U.S.).

“Document” includes all State Department, INS, Immigration Court applications for immigrant and non-immigrant visas, asylum, discretionary relief or work authorization. Putting false information on an I-9 is considered falsely making a document. Using a false passport is a violation of 274C except if the person did so in order to escape from a country in which the alien has a well-founded fear of persecution. In such case, the alien must tell the INS Officer upon arriving in the U.S. that he wishes to apply for asylum.

The INS begins a 274C proceeding by issuing a Notice of Intent to Fine (NIF) which contains, among other information, the charges and the amount of the fine sought. The NIF also advises the alien of the right to counsel, the privilege against self-incrimination, the right to a hearing if requested within 60 days and the consequences of not requesting a hearing. The NIF must be either personally served or delivered by certified or registered mail. If the alien requests a hearing, there are various procedures which can be used to obtain information about the evidence that the government intends to use. Appeals against the decision can be taken in the U.S. Circuit Court.

Civil penalties can range from $250.00 to $2,000.00 for each document. Fines for second violations can range from $2,000 to $5,500.

Any alien who is the subject of a final order for violating 274C is inadmissible to the U.S. A limited waiver exists for two groups of people. The first is for green card holders who temporarily left the U.S. voluntarily, are not under deportation orders and who are otherwise admissible. The second is for aliens seeking admission or adjustment of status based upon immediate relative or family based petitions. In both cases, the alien must not have a previous fine under 274C and the fraud must have been committed “solely to assist, aid or support the alien’s spouse or child (and not another individual)”. That relationship must have existed at the time of the use of the document.

Aliens with final 274C orders still qualify for withholding of removal or deferral of removal under the Convention Against Torture. They may also qualify for asylum. They may also qualify for cancellation of removal for lawful permanent residents or cancellation of removal for non-permanent residents.

The wisest course of action is to not use fraudulent documents. However, that advise may come too late for many people. Receipt of an NIF is a very serious matter. There are time deadlines for responding to the NIF. Failure to respond within the proper time frame could result in a final order which could then result in the alien being placed in removal proceedings. Anyone receiving an NIF should consult with an attorney experienced in immigration law immediately.