CHAPTER TWO - OFFENSE CONDUCT


PART L - OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS


2.      NATURALIZATION AND PASSPORTS


§2L2.1.     Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law

(a)       Base Offense Level:  11

(b)      Specific Offense Characteristics

(1)       If the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only of the defendant's spouse or child (or both the defendant's spouse and child), decrease by 3 levels.

(2)       If the offense involved six or more documents or passports, increase as follows:

Number of Documents/Passports  Increase in Level
(A) 6-24 add 3
(B) 25-99 add 6
(C) 100 or more add 9.

(3)       If the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws, increase by 4 levels.

(4)       If the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration and naturalization offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization offenses, each such conviction arising out of a separate prosecution, increase by 4 levels.

(5)       If the defendant fraudulently obtained or used (A) a United States passport, increase by 4 levels; or (B) a foreign passport, increase by 2 levels.


Commentary

Statutory Provisions:  8 U.S.C. §§ 1160(b)(7)(A), 1185(a)(3), (4), 1325(c), (d); 18 U.S.C. §§ 1015, 1028, 1425-1427, 1542, 1544, 1546.  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      For purposes of this guideline–

"The offense was committed other than for profit" means that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful aliens.

"Immigration and naturalization offense" means any offense covered by Chapter Two, Part L.

"Child" has the meaning set forth in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)).

"Spouse" has the meaning set forth in section 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35)).

2.      Where it is established that multiple documents are part of a set of documents intended for use by a single person, treat the set as one document.

3.      Subsection (b)(3) provides an enhancement if the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws.  If the defendant knew, believed, or had reason to believe that the felony offense to be committed was of an especially serious type, an upward departure may be warranted.

4.      Prior felony conviction(s) resulting in an adjustment under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).

5.      If the offense involved substantially more than 100 documents, an upward departure may be warranted.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 195); November 1, 1992 (see Appendix C, amendment 450); November 1, 1993 (see Appendix C, amendment 481); November 1, 1995 (see Appendix C, amendment 524); May 1, 1997 (see Appendix C, amendment 544); November 1, 1997 (see Appendix C, amendment 563); November 1, 2006 (see Appendix C, amendment 691); November 1, 2010 (see Appendix C, amendment 746).