                                 VISA Fraud Investigation

A lthough facially a violation of applicable statutes, the State Departm ent may issue a visa to an
    ineligible alien in order to facilitate an undercover operation conducted by the Immigration
    and N aturalization Service. Undercover operations often involve facially illegal conduct by
    governm ent officers, but courts have not held such conduct to be illegal if it is necessary to
    secure a perm issible law enforcement objective.

                                                                                      November 20, 1984

                M   em orandum          O   p in io n f o r t h e   G eneral Co un sel,
                      I m m ig r a t io n    and   N a t u r a l iz a t io n S e r v ic e


  This responds to your request for our opinion on whether the Department of
State may issue a visa to an ineligible alien in order to facilitate an undercover
operation being conducted by the Immigration and Naturalization Service
(INS). We believe that the Department of State may issue the visa.

                                              I. Background

   INS is presently conducting an undercover operation to investigate individu­
als suspected of paying American citizens to enter into sham marriages with
aliens.1 INS has focused on a group suspected of smuggling into the United
States large numbers of aliens who then enter into sham marriages. In order to
infiltrate the group, INS has persuaded an American citizen who has admitted
entering into a sham marriage to cooperate with the INS. The individual has
filed a visa petition on behalf of his putative wife. The petition has been
approved by the INS and forwarded to the American consul in Canada for
processing. As explained by INS officials, the approval of the petition and
issuance of the visa will enable the individual to win the confidence of the
suspects:
            The objective is to have both the alien and the United States
         citizen spouse, a cooperating private individual (CPI), travel to
         [Canada] so that in addition to obtaining the visa, the CPI would

 1O nce m arried to the A m erican citizen, the alien is eligible to receive a resident visa.

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          meet with additional conspirators and gain their confidence by
          letting them know that the visa had been successfully issued.
             Once the visa was issued, it would be taken from the alien at
          the port of entry and the alien would be issued a Form 1-94
          indicating entry and the pending issuance of a Form 1-551, as is
          normal procedure. The visa would then be retained as evidence
          by the United States Attorney’s Office, and be returned eventu­
          ally to the Department of State.
Memorandum for Maurice C. Inman, Jr., General Counsel, INS, from John F.
Shaw, Assistant Commissioner for Investigations, INS (Oct. 23, 1984). When
the individual and his wife return to the United States, it is hoped that the
suspects, having been assured of the individual’s reliability, will ask him to
recruit others, thereby allowing infiltration by INS and eventual prosecution.
   The Department of State has declined to issue the visa necessary for the
operation to proceed, and has raised the question whether issuance of the
necessary visa would violate 8 U.S.C. § 1201(g)(3), which provides that “[n]o
visa. . . shall be issued to an alien i f . . . the consular officer knows or has reason
to believe that such alien is ineligible.” Because the American consul knows the
alien in this case has entered into a sham marriage, the Department of State will
not issue the visa unless this Office opines to the contrary.

                                             II. Analysis

   Government law enforcement efforts frequently require the literal violation
of facially applicable statutes. One obvious example would involve police
officers who must exceed the applicable speed limit in order to catch a speeder
or an escaping criminal. In order to explain why such law enforcement activity
does not violate the law, the courts have construed prohibitory laws as inappli­
cable when a public official is engaged in the performance of a necessary public
duty. In reaching this conclusion, some courts have focused on legislative
intent, reasoning that these statutes do not apply “where public officers are im­
pliedly excluded from language embracing all persons [because] a reading which
would include such officers would work obvious absurdity as, for example, the
application of a speed law to a policeman pursuing a criminal or the driver of a
fire engine responding to an alarm.” Nardone v. United States, 302 U.S. 379,
384 (1937) (footnote omitted). Other courts have simply referred to the basic
principle that action by public officials that would otherwise violate a statutory
prohibition is justifiable if it is necessary to achieve a legitimate government
objective and is done in a reasonable fashion.2 Thus, the courts have held


   2 This principle appears to be derived from the com m on law defense o f necessity. W. LaFave & A. Scott,
H andbook on C rim inal Law 381 n .l (1972). The federal case law is not w ell-developed, “probably because
common sense usually prevents a prosecution in such a case.” K. Sears & H. W eihofen, M a y’s Law o f Crimes
§ 6 0 , at 68 (4th ed. 1938).

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inapplicable not only speeding laws,3 but virtually the entire spectrum of civil4
and criminal law.5
   The case law is nevertheless relatively sparse since few states or cities
prosecute their law enforcement officers for their activities and, therefore, the
defense of official conduct seldom needs to be raised.6 However, defendants
challenging their convictions have often argued that the government’s activity
violated a law and that the defendant’s conviction is therefore invalid. The
courts have almost uniformly rejected these challenges, noting that it is often
necessary for law enforcement officers to engage in otherwise illegal conduct in
order to catch criminals. This is especially true in undercover operations, as the
Supreme Court has recognized. For example, in United States v. Russell, 411
U.S. 423,430 (1973), a defendant challenged his conviction for manufacturing
PCP on the grounds that the government’s undercover involvement, including
contributing one of the major ingredients, was so outrageous that it violated the
Due Process Clause. The Supreme Court rejected the argument, stating that the
undercover agent did not “violate any federal statute or rule or commit any
crime, in infiltrating the . . . drug enterprise.” Id. at 430.
             In order to obtain convictions for illegally manufacturing
           drugs,.. . law enforcement personnel have turned to one of the
           only practical means of detection: the infiltration of drug rings
           and a limited participation in their unlawful present practices.
           Such infiltration is a recognized and permissible means o f inves­
           tigation-, if that be so, then the supply of some item of value that
           the drug ring requires must, as a general rule, also be permis­
           sible. For an agent will not be taken into the confidence of the
           illegal entrepreneurs unless he has something of value to offer
           them.
Id. at 433 (emphasis added). Thus, the Supreme Court recognized that under­
cover operations often involve technically illegal conduct by government offic­
ers and approved that conduct because it is necessary to secure the law enforce­
ment objective.7 A few years later, the Court rejected attempts to read Russell


  3 W arren Petroleum Co. v. Thomasson, 265 F.2d 5, 10 (5th Cir. 1959); Lilly v. West Virginia, 29 F.2d 6 1 ,6 4
(4th C ir. 1928); C ity o f N orfolk v. M cF arland, 145 F.Supp. 258, 260 (E.D . Va. 1956); State v. Sw ift, 143 A.2d
114, 115 (N .H . 1958).
  4 State o f M ontana v. C hristopher, 3 4 5 F. Supp. 60, 61 (D. Mont. 1972) (operating trailer w ithout lights);
State v. K n o xville, 80 T enn. 146(1883) (open field burning by city officials not a nuisance when necessary to
prevent spread o f disease).
  5 S ta te v. E m erson, 517 P .2d 2 4 5 ,2 4 7 (W ash. Ct. App. 1974) (accepting services o f prostitute) (“ Practical
considerations require that, in the perform ance by police o f crim e detection duties, at least som e deceitful
practices an d ‘a lim ited participation’ in unlaw ful practices be tolerated and recognized as law ful.”); State v.
Torphy, 78 M o. App. 206 (1899) (gam bling).
  6 S ee S ears & W eihofen, supra note 2 ; D ix, “U ndercover Investigations and Police R ulem aking,” 53 Tex. L.
R ev. 2 0 3 ,2 8 4 -8 6 (1 9 7 5 ).
  7 The C o u rt indicated th at there m ig h t be a situation in which the G overnm ent’s involvem ent was so
outrageous that it w ould offend due pro cess principles, but “the instant case is not o f that breed.” United
States v. R u ssell, 411 U .S. a t 432. Nor h a s the C ourt found such a case since Russell.

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narrowly when it affirmed a conviction in which the government had allegedly
supplied the heroin which the defendant was charged with selling. Hampton v.
United States, 425 U.S. 484 (1976). Even though heroin is contraband and its
possession is “illegal and constituted the corpus delicti for the sale of which the
petitioner was convicted,” the Court rejected the argument that the Government’s
involvement “deprived defendant of any right secured to him by the Constitu­
tion.” 425 U.S. at 489, 490-91 (Rehnquist, J.) (plurality opinion). “Govern­
ment participation ordinarily will be fully justified in society’s ‘war with the
criminal classes.’” Id. at 495 (Powell, J., concurring) (citation omitted).8 Since
Hampton, the courts of appeal have explicitly and repeatedly upheld a variety of
undercover techniques that technically violate a variety of civil and criminal statutes
but whose use has been deemed necessary to particular undercover operations.9

                                                 Conclusion

   We believe, therefore, that the courts have recognized that it is generally
lawful for law enforcement agents to disregard otherwise applicable law when
taking action that is necessary to attain the permissible law enforcement objec­
tive, when the action is carried out in a reasonable fashion,10 and when the
action does not otherwise violate the Constitution.11 Pursuant to this general
principle, this Office has repeatedly advised various agencies, including the
Department of State, that the use of false documents in particular undercover
operations is legal. See, e.g., Memorandum for Roberts B. Owen, Legal Ad­
viser, Department of State, from John M. Harmon, Assistant Attorney General,
Office of Legal Counsel (July 3, 1980) (regarding issuance of false passports).

   8 B oth Justice R ehnquist and Justice Powell recognized that governm ent involvem ent in otherw ise illegal
activities may at som e point go beyond w hat is necessary and becom e punishable. 425 U.S. at 49 0 -9 1 ; id. at
494 nn.5 & 6. Justice R ehnquist noted that “I f the police engage in illegal activity in concert w ith a defendant
beyond the scope o f their duties the remedy lies, not in freeing the equally culpable defendant, but in
prosecuting the police under the applicable provisions o f state o r federal law .” Id. at 490. Justice Powell felt
that there should be som e lim iting principle on governm ent involvem ent in crim e, but did not believe it was
necessary to develop the principle in Hampton. Id at 494 nn.5 & 6. O ne principle that might be used is to
perm it acts that involve malum prohibitum , such as possession o f contraband or obtaining false birth
certificates, but to forbid activities that involve malum in se , such as hom icide and assault.
   9 See, e.g.. U nited States v. G am ble, 737 F.2d 853, 854, 858 (10th Cir. 1984) (postal workers obtained false
drivers licenses, filed false accident reports, obtained insurance and registered cars under false names, pled
guilty to nonexistent traffic violations and filed false claim s w ith insurance com panies); U nited States v.
Beverly, 723 F.2d 11, 12 (3d Cir. 1983) (governm ent supplied gasoline and disguises to arsonist); U nited
States v. M cCown, 711 F.2d 1441, 1449 50 (9th Cir. 1983) (governm ent supplied marijuana); U nited States v.
Rom ano, 706 F.2d 370, 372 (2d Cir. 1983) (governm ent supplied heroin); U nited States v. K hatib, 706 F.2d
213, 217 (7th Cir. 1983) (governm ent sold unregistered firearm s); U nited States v. N orton, 700 F.2d 1072,
1076 (6th Cir.) (governm ent supplied explosives for bom b), cert, denied, 461 U.S. 910 (1983); U nited States
v. Gianni, 678 F.2d 9 5 6 ,9 5 8 (11 th C ir.) (governm ent sold over 1000 pounds o f m arijuana), cert, denied, 459
U.S. 1071 (1982); U nited States v. Parisi, 674 F.2d 126, 127 (1st Cir. 1982) (governm ent sold food stam ps at
illegal discount).
   10 Thus, a police o fficer may speed but the court will evaluate w hether, under the circum stances, he
exercised reasonable care for the safety o f third parties. State v. Sw ift, 143 A.2d 1 1 4 ,115(N .H . 1958); Edberg
v. Johnson, 184 N.W . 12, 13 14 (M inn. 1921).
   11 U nited States v. U nited States D istrict C ourt, 407 U.S. 297 (1972); Lewis v. U nited States, 385 U.S. 206,
209 (1966); Zweibon v. M itchell, 516 F.2d 594 (D.C. Cir. 1975), cert, d enied , 425 U.S. 944 (1976).

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   In the instant case, there is nothing in the language of 8 U.S.C. § 1201(g)(3)
that suggests that Congress intended to restrict the use of visas in undercover
operations. Moreover, the ultimate objective of § 1201(g) to prevent manipula­
tion of the visa process will not be frustrated by this operation. Rather, as in
many undercover operations, the Government’s activity will involve “limited
participation” in the methods of suspected criminals in order to achieve the
ultimate objective of ending the criminal behavior. Russell , 411 U.S. at 433.
Accordingly, we conclude that the issuance of a visa by the Department of State
is necessary for the operation to proceed; that the issuance under the circum­
stances described — for a limited purpose and under close supervision — is
reasonable; and that the issuance of the visa is, therefore, legal notwithstanding
the language in 8 U.S.C. § 1201(g).

                                                   L a r r y L . S im m s
                                          Deputy Assistant Attorney General
                                              Office o f Legal Counsel




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