(B)  Safe Havens Specific to this Category.  A number of safe havens are apparent here that are specific to this category:

 

            (1)  Offenses Within 18 U.S.C. § 1543 That Are Not Listed in the Category.  The definition does not include all convictions in violation of 18 U.S.C. § 1543.  Instead, the relevant portion of the aggravated felony definition of this category reads: “an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code . . . .”[477]  In contrast, the criminal statute reads:

 

            Whoever falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport, with intent that the same may be used; or

            Whoever willfully and knowingly uses, or attempts to use, or furnishes to another for use any such false, forged, counterfeited, mutilated, or altered passport or instrument purporting to be a passport, or any passport validly issued which has become void by the occurrence of any condition therein prescribed invalidating the same--
            Shall be fined under this title, . . . . [478]

 

The aggravated felony definition exactly tracks the first paragraph of this criminal statute, thus making deportable any conviction of an offense which “is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code . . . .” [479]  Note that Congress did not use any broader language, such as “described in” or “relating to.”  To fall within this category, the conviction must be for an offense which “is” on the list contained in the first paragraph of the statute.

 

            A safe haven disposition, therefore, would be a plea to willfully using, or attempting to use, a false passport in violation of paragraph two of 18 U.S.C. § 1543, since those offenses are not listed in the aggravated felony category.  See § 7.7(B), supra.

 

            By contrast, any conviction of violating any part of 18 U.S.C. § 1546(a) will trigger deportation under this category.

 

            (2)  Family Relationship Exception.  This aggravated felony category also includes an express exception for “a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act . . . .”[480]  There is no requirement in this section that the family relationship had to exist at the time that the offense occurred.  A noncitizen who assisted someone who later became a spouse, child or parent after the offense was committed (e.g., through marriage, creation of step-relationship, or adoption) therefore comes within the family relationship exception, and the conviction would therefore fall outside this definition of an aggravated felony.[481]

 

[477] INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P) (emphasis supplied).

[478] 18 U.S.C. § 1543.

[479] 18 U.S.C. § 1543.

[480] INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P).

[481] The exception to this particular aggravated felony definition does not include language requiring the family relationship to have existed at the time the document fraud occurred.  In contrast, the deportation waiver for alien smuggling specifically requires the family relationship to have existed at the time of smuggling.  Compare INA § 237(a)(1)(E)(iii), 8 U.S.C. § 1324(a)(1)(E)(iii) (smuggling waiver of deportability requires that the family relationship had to exist “at the time of the offense”) with INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P) (family relationship exception to document fraud aggravated felony definition does not contain this limiting language).  Because Congress explicitly imposed the requirement upon the deportation waiver but not the aggravated felony exception, rules of statutory construction dictate that the requirement does not apply to the aggravated felony exception.

Eighth Circuit

AGGRAVATED FELONY - POSSESSION OF UNSIGNED COUNTERFEIT SOCIAL SECURITY CARD
United States v. Pool-Chan, ___ F.3d ___ (8th Cir. Jul. 18, 2006) (federal conviction of possession of counterfeit social security card violates 18 U.S.C. 1546(a), even if the card is not signed). http://caselaw.lp.findlaw.com/data2/circs/8th/054015p.pdf

Other

IMMIGRATION OFFENSES " FEDERAL LAW PREEMPTS STATE IDENTITY FRAUD PROSECUTIONS RELATED TO FEDERAL I-9 FORMS
State v. Reynua, State of Minnesota, Mower County District Court (Jul. 23, 2012) (File No. 50-CR-09-1811) (unpublished) (admission of an I-9 form in a state forgery prosecution was reversible error); on remand after State v. Reynua, 807 N.W.2d 473 (Minn. App. 2011), review granted, revd in part and remanded (Minn. Feb. 28, 2012) (8 U.S.C. 1324a(b)(5) means what it says -- that other than specified federal prosecutions, the I-9 form and appended documents may not be used to establish a state crime).