Lawyer: Wholesale application of INA to NMI problematic

The federal court should recognize that there are problems with the wholesale application of the Immigration and Naturalization Act to the unique circumstances of the immigration situation in the CNMI, according to attorney Mark A. Scoggins.

“This is particularly true when it comes to potential criminal penalties that may be imposed,” said Scoggins, counsel for Dongjun Li, a Chinese national arrested last month as he tried to check-in for an outbound flight to Los Angeles via Narita, Japan, using allegedly fake documents.

The 38-year-old Li has been indicted for immigration fraud and false statement or entry.

According to the indictment, Li used a forged U.S. Department of Justice, Immigration and Naturalization Service Form I-512 on July 15, 2011, as evidence of authorized stay or employment in the U.S. The document was accompanied by an authorization for extension of parole of alien in the U.S. dated July 11, 2011.

In Li’s motion to dismiss immigration fraud count, Scoggins asserted that because an I-512 Authorization for Parole Document is not among the types of documents specified in the statute, Li’s alleged use of the alleged fraudulent I-512 cannot subject him to criminal penalty.

Scoggins said the statute bars the use of a fraudulent 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.

“The question for the Court must therefore be, does the allegedly fraudulent I-512 fall within the kind of documents specified by the statutory language? The answer is that it does not,” the lawyer said.

Scoggins said the document is neither a visa nor a border crossing card, and the U.S. government has not alleged otherwise.

The lawyer contended that the document is not a “permit and other document prescribed by statute or regulation for entry into or evidence of authorized stay or employment in the United States,” and for that reason, count one of the indictment should be dismissed.

Scoggins said an I-512 “Advance Parole” document, even if valid and legitimate, is not a permit or other document for entry into or evidence of authorized stay or employment in the U.S. as specified in the statute.

The use of a fraudulent I-512, Scoggins said, is not subject to criminal penalty.

“Parole,” he said citing precedent, is an administrative practice whereby the government allows an arriving alien who has come to a port-of-entry without a valid entry document to be temporarily released from detention and to remain in the U.S. pending review of his immigration status.

Scoggins said Li’ use of an I-512 document, whether legitimate or fraudulent, might have allowed him to “physically enter” Los Angeles while remaining in “constructive detention at the border.”

The document is not, however, a permit and would not have allowed legal entry or any period of authorized stay in the U.S., Scoggins said.