There has been considerable criticism of the fact that the massive new immigration bill seems to be something of a mystery to even sponsors who have indicated that they have either not read it entirely or even know many of its provisions. This seems a new fact of life for Congress — something we saw with the Patriot Act where many members admitted they never read before voting to curtail civil liberties. There remains a huge debate in the country over the fairness of allowing millions to apply for citizenship after knowingly entering the country illegally while others wait in other countries. Others insist that this is dealing with a difficult problem in a humane way and is good for the economy and good for the GOP. Putting aside those sweeping issues, I was struck by one provision of the law that deals with people who have forged two passports or sold false passports.

When asked, sponsor Senator John McCain (R-Ariz.) actually said that he knew of no such provision, but it seems to still be in the bill below. Here is the language:

“any person who, during any period of 3 years or less, knowingly – (1) and without lawful authority produces, issues, or transfers 3 or more passports; (2) forges, counterfeits, alters, or falsely makes 3 or more passports; (3) secures, possesses, uses, receives, buys, sells, or distributes 3 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority; or (4) completes, mails, prepares, presents, signs, or submits 3 or more applications for a United States passport, knowing the applications to contain any materially false statement or representation, shall be fined under this title, imprisoned not more than 20  years, or both.”

That language passed the Senate with 68 votes but what does it mean in cases of two prior forgeries? That would be quite astonishing given the post-9-11 prosecutions for anyone falsifying passports and other documents.

Senator Patrick Leahy (D-Vt) acknowledged that the applicant could have forged or sold forged passports but stated that such crimes could be treated as one or multiple forgeries. He insisted “it simply gives flexibility because “you give prosecutors a certain amount of discretion, you have two or three different crimes you have committed, so then it’s [up to] prosecutorial discretion which one they will charge. I mean, I spent eight years as a prosecutor. One of things you learn [is] the importance of that.” I am confused by why the provision is included since such forgeries are already a crime. Title 18, Section 1541 of the U.S. Code provides for imprisonment up to 25 years for such acts. Here is the language:

Whoever, acting or claiming to act in any office or capacity under the United States, or a State, without lawful authority grants, issues, or verifies any passport or other instrument in the nature of a passport to or for any person whomsoever; or
Whoever, being a consular officer authorized to grant, issue, or verify passports, knowingly and willfully grants, issues, or verifies any such passport to or for any person not owing allegiance, to the United States, whether a citizen or not—
Shall be fined under this title, imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929 (a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.
For purposes of this section, the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

This would at a minimum suggest that it would be punished at a lower level, but I am not sure of how it fits with the application of the immigrant. Notably, the 25 year provision is for terrorism. It is 15 years for other offenses.

The new law seems at a minimum to suggest that two cases of selling false passports would fall under that level of punishment for 25 years. The question is how we handle people who falsified documents like passports in applying under the new law. Is anyone familiar with the law on that point? For example, if an illegal immigrant completed false documents or bought them, would they still be able to apply? If so, what happens to Section 1541 in such cases?

Clearly, it is no barrier to citizenship to have violated immigration laws by illegally entering or illegally remaining in the country. However, does the new law extend to affirmative acts of forgery? The law is obviously designed to excuse some immigration offenses the question is what is included in such offenses committed to continue to live and work illegally in the country and how those provisions then relate to the criminal code.

Here is the bill: S 744_0