UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
June 28, 1974
UNITED STATES OF AMERICA
ALVARO POVEDA VARGAS, Defendant
The opinion of the court was delivered by: NEAHER
MEMORANDUM AND ORDER
NEAHER, District Judge.
Defendant has moved to dismiss an indictment charging him with possessing and uttering a document required for entry into the United States, knowing the same to have been procured by fraud and unlawfully obtained in violation of 18 U.S.C. § 1546 (1970). Defendant's motion principally focuses on the fact that the document in question is a Colombian passport. Whether a foreign passport is a "document required for entry into the United States" within the meaning of § 1546 appears to be a question of first impression, the determination of which may be made without a trial of the general issue.
For purposes of this motion, the parties have stipulated to the following facts:
On or about February 15, 1973, defendant sold a Colombian passport to one Sanchez, an undercover agent of the United States Bureau of Customs. Defendant was then employed as a porter/clerk in the New York City office of the Consul General of Colombia. The passport in the name of one Jhon Jairo Valdes Nunez had been turned over to the consulate on July 6, 1971 by a woman whose son had found it in a subway. Apparently the passport had been lost and never reclaimed. It had been issued on March 25, 1970, and while it was still in force, its initial validation had expired on March 25, 1972 and had not been revalidated.
Defendant at the time of the sale was not authorized by his superior to sell the passport, and the sale was a violation of the laws, regulations or procedures controlling the operations of the consulate and the duties of employees.
The first paragraph of § 1546, upon which the indictment is found, reads as follows
"Whoever, knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, 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 . . .
* * *
"Shall be fined . . . or imprisoned . . . ."
In defending the indictment and opposing the motion to dismiss, the government takes the position that the phrase "other document required for entry into the United States" comprehends a Colombian passport. It relies heavily on 8 C.F.R. § 212.1 (1973), which provides in pertinent part that "an unexpired passport . . . shall be presented by each arriving nonimmigrant alien . . . ."
The government further argues that the purpose of the statute warrants its application to the circumstances of this case.
The history of § 1546, the terms of the statute itself, the language of other sections of the Immigration and Nationality Act of 1952 which amended it, as well as the provisions of other sections of 18 U.S.C. which were enacted together with it, convince the court that the phrase in question is limited to documents which are exclusively entry documents issued by the United States.
1. History of § 1546
The offenses proscribed in § 1546 originated in § 22 of the Immigration Act of 1924, Ch. 190, 43 Stat. 165.
The offenses specified in § 22 related to "immigration visa or permit." The term "immigration visa" was defined in the 1924 Act as "an immigration visa issued by a consular officer under the provisions of [the] Act." § 28(d), 43 Stat. 168. The term "permit" was defined "as a permit issued under section 10 [of the Act]."
§ 28 (k), 43 Stat. 169. This provision was codified in 8 U.S.C. § 220 (1940). In 1948 it was transferred to 18 U.S.C. § 1546 as part of the general recodification of Title 18. That section, entitled "Fraud and misuse of visas and permits," continued to be concerned with offenses related to an "immigration visa or permit," ch. 645, 62 Stat. 771. There was no change suggesting that the documents involved comprehended any that were not issued by appropriate officers of the United States.
In 1952, § 1546 was amended by § 402(a) of the Immigration and Nationality Act of 1952, ch. 477, Title IV, 66 Stat. 275. As amended, the statute is captioned "Fraud and misuse of visas, permits, and other entry documents," and by its terms is related to " any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States." The addition of the word "nonimmigrant" apparently reflects the fact that the 1952 Act in § 221 and § 222, 66 Stat. 191-194, 8 U.S.C. §§ 1201 and 1202, made for the first time "statutory provision . . . for the issuance of nonimmigrant visas." H.R. Rep. No. 1365, 1952, U.S. Code Cong. & Ad. News 1708.
As defined in the 1952 Act, an "immigrant visa" means "an immigrant visa required by [the] Act and properly issued by a consular officer at his office outside of the United States to an eligible immigrant. . . .", § 101(a)(16), 66 Stat. 169, 8 U.S.C. § 1101(a)(16). A "nonimmigrant visa" means "a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in [the] Act." § 101(a)(26), 66 Stat. 169, 8 U.S.C. § 1101(a)(26). In each case, it is clear that the "officer" referred to is an officer of the United States. While the legislative history of the 1952 Act does not make clear which "other" entry documents the Congress had in mind, it seems most likely that the additional language in § 1546 was to reach specialized border-crossing identification cards, authorized as a substitute for a visa or permit in the Alien Registration Act of 1940. United States v. Campos-Serrano, 404 U.S. 293, 296-97 n. 6, 30 L. Ed. 2d 457, 92 S. Ct. 471 (1971).
In sum, until 1952 the statute and its predecessor dealt solely with immigrant visas and permits, which by definition were documents issued by the United States. There is no indication that the amendment of the statute in 1952 was designed to reach anything except documents equivalent to visas and permits also issued by officers of the United States.
2. The Statute Viewed as a Whole
Section 1546 contains four paragraphs delineating criminal offenses. While the indictment is framed under the first paragraph, the phrase in controversy appears in the succeeding two paragraphs as well.
The second paragraph of the statute is directed against anyone who improperly
"possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents ;" (emphasis supplied).
It is clear that in this paragraph Congress was concerned solely with the integrity of United States entry documents, for the printing of which a distinctive paper might be adopted. It is a settled principle of statutory construction that when the same word or phrase is used in the same section of an act more than once, and the meaning is clear in one place, it will be construed to have the same meaning in the other places. Meyer v. United States, 175 F.2d 45, 47 (2 Cir. 1949). This reinforces the view that the "other" documents referred to in the first and third paragraphs of § 1546, like those in the second, are entry documents issued by the United States.
Additionally, the language of the fourth paragraph of § 1546 demonstrates that Congress well knew how to expand the scope of a criminal prohibition by appropriate phraseology.
In that paragraph the term "other document" is immediately followed by the words "required by the immigration laws or regulations prescribed thereunder," rather than "required for entry into the United States." The expansive wording of the fourth paragraph thus negates the notion that "other document" as used in the preceding three paragraphs should receive the same broad construction.
3. Immigration and Nationality Act of 1952
The meaning of a term in one section of an act may often be clarified by reference to its use in others. United States v. Cooper Corp., 312 U.S. 600, 606, 85 L. Ed. 1071, 61 S. Ct. 742 (1941). As noted above, § 1546 reflects on its face a significant difference in the description of the documents embraced within its first and fourth paragraphs. Similar differences are apparent in the Immigration and Nationality Act of 1952, which amended § 1546.
At least three categories of "required documents" can be discerned in the 1952 Act:
(1) documents required in order to apply for an entry document. See, e.g., 8 U.S.C. § 1202;
(2) documents required for actual admission or entry into the United States. See, e.g., 8 U.S.C. §§ 1184, 1182(a)(26);
(3) documents issued by the United States for entry into the United States. See, e.g., 8 U.S.C. § 1201.
Thus a distinction appears manifest between documents required for application and admission by United States immigration laws or implementing regulations and the entry documents themselves. With respect to § 1546, a passport, which may be the former, is not necessarily the latter. In 8 U.S.C. § 1182(a)(20), for example, Congress explicitly recognized such a distinction when it authorized exclusion of
". . . any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 1181(a) of this title . . ." (emphasis supplied).
The foregoing makes clear that a passport is characterized as a "travel document, or document of identity and nationality." See also 8 U.S.C. § 1202(b).
Consequently, little weight can be given to the bare assertion by the government that a foreign passport is a "document required for entry into the United States" simply because under 8 C.F.R. § 212.1 presentation of a passport is necessary for admission of an alien into the United States. Although Congress unquestionably may validly provide a criminal sanction for violation of rules or regulations which it has empowered the President or an administrative agency to enact, United States v. Grimaud, 220 U.S. 506, 55 L. Ed. 563, 31 S. Ct. 480 (1911), there is no basis for believing that § 1546 authorizes any definitional implementation of the phrase in question by regulation, or by 8 C.F.R. § 212.1 in particular.
Nor does it appear that the regulation relied upon was intended to implement the criminal statute. Compare, e.g., Brumage v. United States, 377 F. Supp. 144 (E.D.N.Y. 1974). In fact, 8 C.F.R. § 212.1 appears to be no more than an expression in regulation form of § 212(a)(26) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(a)(26), to which it makes specific reference.
4. Related Sections of 18 U.S.C.
Chapter 75 of Title 18 of the United States Code, §§ 1541-1546, provides criminal penalties for offenses related to passports and visas. The first four provisions §§ 1541-1544, are concerned exclusively with passports. Section 1544 deals with safe conducts as well as passports. The government insists that since these statutes apply to United States passports, § 1546 must apply to foreign passports.
Such a contention is a non sequitur. Although the inclusion of at least five criminal statutes related to passports does not preclude the first paragraph of § 1546 from applying to passports, it renders it unlikely that that paragraph was intended to cover passports at all. Furthermore, that the preceding statutes relate to United States documents,
and that the visas and permits referred to in § 1546 are United States documents, also make it most unlikely that "other document required for entry into the United States" was intended to embrace foreign documents.
Turning now to the government's policy argument that the very purpose of the statute is to punish the kind of act committed by the defendant, the court is cited to United States v. Mouyas, 42 F.2d 743 (S.D.N.Y. 1930).
Essentially the government appears to argue that in order to protect the United States from the improper entry of aliens, § 1546 should be held applicable to a situation where a foreign passport is improperly transferred under circumstances suggestive of an intent that it would be utilized to obtain or regain entry into the United States. In support of this view, it relies upon United States v. Mouyas, supra, in which two defendants were charged under § 22 of the Immigration Act of 1924, the predecessor of § 1546, with impersonating others through the use of a joint passport and birth certificates. The court rejected defendants' contention that since the section related specifically to visas and permits, it did not include passports.
Relying on the fact that § 22 was a part of the law bearing the subtitle "offenses in connection with documents," the court in Mouyas concluded that a narrow interpretation would "tend to frustrate the purpose of the law," which "was to penalize obtaining or efforts to obtain entrance into the country by personating others." 42 F.2d at 745. Since a passport was "a usual and permissible type of document for presentation at the time of seeking admission," the court asked, "If therefore the means by which false impersonation occurs be a passport, why should the one who uses it be freed from prosecution?" Id.
Thirty years later the Supreme Court rejected a similar contention in United States v. Campos-Serrano, supra, holding that possession of a counterfeit alien registration receipt card was not punishable under § 1546.
The Court refused to hold that a card, which could under regulation be used for re-entry purposes in lieu of a visa or re-entry permit, was a document required for entry into the country. As it noted (404 U.S. at 299):
The language of § 1546 denotes a very special class of "entry" documents -- documents whose primary raison d'etre is the facilitation of entry into the country. The phrase "required for entry into the United States," is descriptive of the nature of the documents; it is not simply an open-ended reference to future administrative regulations.
While a foreign passport is required of aliens to obtain entry into the United States, and, unlike an alien registration card, is not merely a permissible means of entry, it is clear that the primary raison d'etre of a foreign passport is not facilitation of entry into the United States. A foreign passport, unlike a visa or permit, cannot generally be defined as a document required for entry into the United States. Indeed, a visa was traditionally affixed to a passport itself.
It continues to be defined as "an endorsement made on a passport by the proper authorities (as of the country the bearer wishes to enter) denoting that it has been examined and that the bearer is permitted to proceed." Webster's Third International Dictionary (1971).
As the Supreme Court emphasized in Campos-Serrano, a penal statute is to be strictly construed. 404 U.S. at 297. At the same time, a court must not do violence to the Congressional intent underlying the statute. Id. at 298. While the court could easily posit reasons for which Congress might have wished to include foreign passports within the meaning of "document required for entry into the United States," there is no indication that Congress wished to do so.
Construing this phrase in § 1546 as limited to United States documents of entry would not defeat the purpose of the statute. Even with a fraudulent passport, an alien would be required to obtain a visa or permit to enter the United States.
If he used that passport in an attempt to obtain a visa or permit, he would violate § 1546. If he improperly transferred such a passport with intent that it be utilized by another to obtain a visa or permit, he might be punishable under 18 U.S.C. § 371 for conspiring to violate § 1546, or under § 2 for aiding any violation committed.
In short, absent an expression of Congressional intent to create substantive offenses related to documents issued by foreign nations, and with strong indications to the contrary, the court cannot read the first paragraph of § 1546 as applicable to foreign passports. Nor can it stretch a penal statute to cover merely evil intent.
Accordingly, defendant's motion to dismiss this indictment as a matter of law is granted.
/s/ EDWARD R. NEAHER U.S.D.J.
Dated: Brooklyn, N.Y., June 28, 1974