Safe Havens

A violation of 18 U.S.C. § 1544 (misuse of a passport), in pertinent part, punishes “Whoever willfully and knowingly uses or attempts to use any passport in violation of the conditions or restrictions therein contained, or of the rules prescribed pursuant to the laws regulating the issuance of passports.”

This offense may be committed by taking a United States or foreign passport to a foreign country to which the country of issuance does not allow the passport to travel.[154]  For example a person could take their own passport to Cuba for use “as an official identification document and as a lever in the event of some mishap during the journey.”[155]  This statute may also be violated where a passport has been issued for diplomatic purposes, and the person to whom the passport was issued uses the document to travel to another country to engage in “the study of Peruvian politics.”[156]

            This statute is a regulatory offense, and does not have as an element any requirement of theft, fraud or other “evil intent.”  See § § 7.109-7.123, supra.  The offense may also be committed without any loss to any victim, and is unrelated to the “making forging, counterfeiting, mutilating or altering of a passport or instrument.”[157]  See § § 7.63, 7.80, supra.  A conviction under this statute, therefore, should not fall within any portion of the aggravated felony definition, and should not be considered a crime of moral turpitude. 

            Additionally a conviction under this section should not cause deportation under the visa fraud ground,[158] since 18 U.S.C. § 1544 is a completely separate statute.  See § 7.187, supra; Appendix A § [16], infra.

            There may be some chance that a noncitizen convicted under this statute could be found deportable under the document fraud ground,[159] for violation of INA § 274C, 8 U.S.C. § 1324c.  See § 7.184, supra; Appendix A § [13], infra.  To be found in violation of this section requires an administrative hearing, rather than a criminal conviction or mere conduct, and there is some chance that the administrative judge could attempt to look past the conviction to the facts of the case to determine that the actual conduct triggers deportation.  However, given that the government should bear the burden of proof during such a hearing, that doubts should be resolved in favor of the noncitizen, and that standard categorical analysis should be applied in such a hearing, it would seem unlikely that an administrative finding could be made that a violation of 18 U.S.C. § 1544 triggers deportability under this ground,[160] even if the noncitizen in fact violated INA § 274C, 8 U.S.C. § 1324c.

If a person were convicted of this offense, the best wording for the charging paper would be a word-for-word recitation of the second paragraph (quoted above).  The first and third paragraphs, regulating the use of a passport by someone other than to whom the passport was issued may ‘by its nature’ involve moral turpitude,[161] and may trigger other immigration related grounds of deportability.

[154] See Lynd v. Rusk, 389 F.2d 940, 947 (D.C. Cir. 1967).

[155] Ibid.

[156] United States v. Johnson, 735 F.2d 373, 374 (9th Cir. 1984).

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

[158] INA § 237(a)(3)(B)(iii), 8 U.S.C. § 1227(a)(3)(B)(iii) (conviction of a violation of, or attempt or conspiracy to violate, 18 U.S.C. § 1546, “(relating to fraud and misuse of visas, permits, and other admission documents).”)

[159] INA § 237(a)(3)(C)(i), 8 U.S.C. § 1227(a)(3)(C)(i) (document fraud).

[160] INA § 237(a)(3)(C)(i), 8 U.S.C. § 1227(a)(3)(C)(i).

[161] Cf. Matter of H and Y, 3 I. & N. Dec. 236 (BIA 1948) (misuse of a passport (obtained by fraud) a CMT).