Wednesday, March 11, 2009
Court Allows Fraud Conviction for Lying to Obtain Green Card
By SHERRI M. OKAMOTO, Staff Writer
Possession of authentic immigration documents obtained by means of false statements is a criminal act, the Ninth U.S. Circuit Court of Appeals clarified yesterday.
The panel reversed an order by U.S. District Judge Anna J. Brown of the District of Oregon dismissing the criminal charges against a Serbian national who had obtained refugee status and permanent residency by concealing his military service during the Bosnian war.
Milenko Krstic was living in Bosnia when a civil war broke out in 1992. He was conscripted into the Army of Republika Srpska and served for three years before emigrating to the United States.
The government alleged that Krstic denied having served in the military during a sworn, personal interview administered in Belgrade, and in his 1998 application for refugee status and again in his 1999 application for residency.
In 2005, the International Criminal Tribunal for the former Yugoslavia reported Krstic’s military service to American immigration authorities. His army brigade had allegedly been involved in the massacre of a large number of unarmed Muslim prisoners in 1995.
When confronted by federal agents, Krstic admitted to his military service, but denied having committed any war crimes.
A grand jury for the District of Oregon subsequently returned an indictment charging Krstic with possessing an alien registration receipt card which he knew to have been procured by means of materially false claims in violation 18 U.S.C. § 1546(a).
Sec. 1546(a) subjects anyone who “knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document,” or “possesses…any such visa, permit, border crossing card, alien registration receipt card, or other document…knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement,” to punishment.
Krstic moved to dismiss the indictment, contending that only possession of a forged, counterfeited, altered, or falsely made immigration document would violate Sec. 1546(a). Brown agreed and dismissed the indictment.
Writing for the appellate court, Judge Diarmuid F. O’Scannlain noted both Krstic and the government advocated for plausible constructions of the statute, remarking “with this section, Congress has achieved in a single 124-word sentence a level of confusion it usually takes pages to create.”
As the plain language of Sec. 1546(a) was not dispositive of the issue, O’Scannlain turned to the legislative history of the statute.
In its original form, O’Scannlain explained. Sec. 1546(a) consisted of two numbered subsections separated by the word “or,” which each described independent ways in which the law could be broken.
Reasoning that Congress did not intend to narrow the scope of Sec. 1546(a) by later amendments expanding the list of immigration documents and adding the words “any such,” O’Scannlain concluded the statute prohibits possessing an authentic document that has been procured by means of a false claim or statement.
Such a crime, he added, is a possessory offense, so the statute of limitations does not begin to run until the possessor is parted from the item.
Even though the default statute of limitations for federal crimes is five years and Krstic had made the false statements over eight years before he was charged, O’Scannlain said, the five-year period did not begin until federal agents seized Krstic’s green card in 2006.
Judges Susan P. Graber and Jay S. Bybee joined O’Scannlain in his opinion.
The case is United States v. Krstic, 08-30022.
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