Second Circuit: 18 U.S.C. § 1546(a) Prohibits the Possession of Authentic Immigration Documents Obtained by Fraud, Not Just the Possession of Counterfeit Documents.

In United States v. Greenberg, Nos. 23-7168 and 23-7249 (2d Cir. Feb. 3, 2025) (per curiam), the Second Circuit (Walker, Robinson, Merriam, JJ.) held that 18 U.S.C. § 1546(a) (“Fraud and misuse of visa, permits and other documents”) prohibits the possession of authentic immigration documents that have been obtained by fraud, not just the possession of counterfeit documents.

Greenberg, an immigration attorney, assisted clients in pursuing asylum based on applications that she knew to contain fabricated accounts of past persecution. She was charged with conspiracy to commit immigration fraud. One of the objects of the conspiracy was obtaining I‑94 forms (i.e., forms documenting grants of asylum) “knowing them … to have been procured by means of [a] false claim or statement, or to have been otherwise procured by fraud.” § 1546(a). Following a jury trial (Nathan, SDNY), she was convicted.

On appeal, Greenberg argued that the evidence was insufficient because § 1546(a) does not reach the possession of authentic immigration documents (such as the I-94 forms she sought to obtain for her clients), but rather reaches only counterfeiting or possessing counterfeit documents. Section 1546(a), paragraph 1, punishes:

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, 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. (emphasis added)

Greenberg argued that the italicized “such” refers only to documents that are “forged, counterfeited, altered, or falsely made.”

The Second Circuit rejected the argument and affirmed, concluding that the italicized “such” refers to “the specific list of immigration-related documents covered by the statute, not the means of falsifying those documents.” Slip op. 5. Section 1546(a) therefore “reaches both knowingly forging, counterfeiting, altering, or falsely making any of the specifically listed immigration-related documents in the statute, and receiving, possessing, or using ‘any such document … knowing it … to have been procured by means of any false claim or statement.” Slip op. 4-5. Thus, the Circuit held: Section 1546(a) “prohibits the knowing acquisition, possession, or use of authentic immigration documents obtained by fraud or false statement.” Slip op. 7.