Use of counterfeit immigration documents for employment not a continuing offense.

• Author: Lopez, Elsa C.
• Position: Case note

The Immigration and Nationality Act allows the United states to penalize aliens who participate in document fraud and identity theft. (1) Section 103 of the Immigration Reform and Control Act of 1986 ([section] 1546) criminally barred the use of counterfeit documents in immigration matters for the use of unauthorized employment in the United States. (2) In United States v. Tavarez-Levario, (3) the United States Court of Appeals for the Fifth Circuit addressed whether the "use" of a counterfeit immigration document for employment is "a 'continuing offense' for statute of limitations (SOL) purposes." (4) The Fifth Circuit held that the indictment for using a counterfeit Social Security card and fraudulent permanent resident card (commonly called a "green card") was not a continuous offense and, therefore, the five-year SOL period began to run when the respondent obtained employment. (5)

In 2006, Victor Tavarez-Levario (Tavarez) "entered the United States as a non-immigrant" from Mexico with a valid visa. (6) On February 2, 2009, he obtained employment with a fraudulent green card and Social Security card. (7) More than five years later, on March 20, 2014, an officer stopped Tavarez while he was driving his employer's van. (8) Six days later, Tavarez was indicted for knowingly using a counterfeit Social Security card and green card to authorize his employment status. (9)

The government contended that the "use" of a fraudulent immigration document was a continuing offense and the SOL did not begin to run until Tavarez stopped using the documents for employment. (10) Tavarez objected to the indictment because he contended that he committed his offense on February 2, 2009, and therefore his indictment was barred by the five-year SOL period. (11) The United States District Court for the Western District of Texas held that his use of counterfeit documents for employment was a continuing offense. (12) Tavarez accepted a conditional guilty plea agreement and preserved his "right to appeal the SOL issue." (13) Subsequently, the district court sentenced him for two years of probation and Tavarez appealed. (14) The Fifth Circuit reversed the conviction and remanded for dismissal of the indictment because his crime of knowingly using a counterfeit immigration document was not defined as a continuous offense, thus the indictment fell outside of the five-year SOL period. (15)

Section 1546 was enacted for the purpose of penalizing criminals that commit fraud and misuse visas, permits, and other immigration-related documents to enter or stay illegally in the United States. (16) Congress enacted [section] 1546 to prevent document fraud and identity theft for illegal employment. (17) The statute provides that an individual violates the law if the individual knowingly utters or uses a counterfeit or false immigration document. (18) The statutory wording of "use" and "utter" in [section] 1546 has typically been interpreted using the plain meaning of the terms. (19)

A SOL forbids the government from prosecuting an offense if the time limit for prosecuting the crime has expired. (20) Within the context of [section] 1546, the five-year default time period governs because the SOL is not specified. (21) Typically, a SOL commences "when a crime is committed and 'complete,' regardless of whether the government has discovered the existence of the crime." (22) Conflicts arise between a SOL and when a crime is termed a "continuous offense," which is an unlawful act or series of acts committed that are deemed to be a single ongoing crime. (23) To be deemed a continuing offense, the crime is not considered complete until the wrongdoer refrains from the entire course of conduct. (24)

Many courts in the criminal law context have interpreted the overlap between SOL and continuing offense doctrine. (25) The Supreme Court of the United States, in Toussie v. United States, (26) held that the SOL began to run when the petitioner failed to register for the draft. (27) The Court issued a two-prong test to determine when an offense should be deemed continuous for SOL purposes. (28) To satisfy the first prong, Congress must have inserted explicit plain language in the federal statute in question for a court conclude that it intended the offense to be a continuous one and when the SOL begins to run. (29) If Congress was silent, courts use the second prong and look to many factors like the structure, purpose, and legislative history of statute, the danger posed to society, or past precedent to indicate whether the nature of the offense is continuous. (30) If an offense is found to be continuous, then the SOL tolls after the crime is considered complete. (31)

In United States v. Tavarez-Levario, the Fifth Circuit held the use of counterfeit immigration documents to obtain employment was not a continuing offense because the use of the documents occurred in a single incident and did not involve ongoing or continuous criminal activity. (32) The Court began its analysis by determining if the explicit language of the criminal statute suggested that use of a counterfeit or fraudulently obtained immigration document constitutes a continuous offense. (33) The Court reasoned that the language under [section] 1546 did not include clear language indicating Congress intended for the crime to be a continuous offense. (34) The Court analyzed the terms "use" and "utter" to determine if the ordinary meaning, from legal and non-legal dictionaries, defined them to be interpreted as involving ongoing action. (35) The Court concluded that within the context of [section] 1546, the terms "use" and "utter" indicate that a person using or employing the document may be charged or convicted under [section] 1546, whether or not that individual tendered that document for use by another individual but did not express ongoing conduct. (36)

After concluding that the explicit language of the statute did not include language involving ongoing conduct, the Fifth Circuit examined the nature of the crime involved to determine if the violation of [section] 1546 constituted a continuing offense. (37) The Court noted that an essential characteristic of a continuing offense involves an ongoing illegal act, which produces a threat of harm to society while the perpetrator continues the unlawful act. (38) The Court held that the use of counterfeit immigration documents offense does not produce a threat of harm to society because the immigration documents are utilized for a specific purpose. (39) The Court reasoned the use of a counterfeit immigration document does not involve an ongoing unlawful act or series of acts because it occurs in instances of finite duration and is a discrete incident--for example, to enter the country, to obtain employment, or to attain a benefit. (40) Upon examining the offense and not Tavarez's particular conduct, the Court held that his use of continuous immigration documents coupled with his long-term benefit of employment did not inherently involve criminal activity of an ongoing or continuous character to warrant being treated as a continuous offense. (41) In light of analyzing the explicit language of the statute and nature of the offense, the Court concluded that Congress did not intend for a [section] 1546 offense to be treated as a continuous one; therefore, the SOL barred the indictment because it was not filed within the five years of the commission of the offense. (42)

The Fifth Circuit appropriately applied the explicit language of the statute guideline within the continuous offense doctrine to decide whether the language of the substantive criminal statute would be defined as continuous for SOL purposes. (43) The Court correctly held that following the plain meaning rule, the terms "use" and "utter" do not create an ongoing action, thus failing to meet the "explicit language of the statute" requirement necessary to conclude that using a counterfeit immigration document is a continuing offense. (44) Unlike statutes that demonstrate with unambiguous language that Congress intended to create a continuing offense, [section] 1546 does not clearly state that it is a continuing one. (45) There was no such evidence within the language of the statute or the definitions of the terms "use" and "utter" at issue to suggest the meaning of ongoing conduct. (46)

Conversely, the Fifth Circuit incorrectly applied the second guideline, regarding how Congress must have certainly intended the nature of the crime to be noncontinuous because the offense did not create an ongoing threat to society each day it persisted. (47) Based on the Court's narrow interpretation, Tavarez's conduct does not seem to have reached the same level of harm to society as other offenses, such as crimes of conspiracy, escape of legal custody, or kidnapping. (48) The Fifth Circuit, however, did not consider Tavarez's use of the false documents when he acquired his job or his daily work for five years, which could have produced great economic loss to his employer when the employer withheld another individual's payroll taxes to fund his Social Security benefits and Medicare benefits, thus subjecting the employer to a potential fine from the federal government for employing a noncitizen without work authorization. (49) Furthermore, the Fifth Circuit failed to examine the economic and societal impacts of the use of counterfeit immigration documents. (50) The use of illegal document fraud for employment may have a spillover effect onto innocent victims and may cause tax corruption, economic loss, or a security threat to the nation, which creates a recurring harm the longer the crime persists. (51) Assuredly, Congress would have intended to protect economic and societal harms caused by the use of counterfeit immigration documents when passing [section] 1546. (52)

Considering the Court's narrow approach, the Court was correct in using the five-year default SOL and tolling when the documents were...