Use of a fraudulent Order of Supervision violated a federal criminal statute

Ardon Chinchilla was charged in a federal indictment with violating 18 U.S.C. §1546 by using a fraudulent Order of Supervision to obtain a driver’s license from the Florida Department of Highway Safety and Motor Vehicles. Section 1546 makes it a crime to knowingly use or attempt to use a forged or unlawfully obtained document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States. An Order of Supervision is a document issued by the U.S. Immigration & Customs Enforcement (ICE) to aliens unlawfully present in the United States. It authorizes an unlawful alien to be released from custody into the community and to remain living in the United States for an indefinite period of time pending removal. An Order of Supervision may authorize the alien to seek employment in the United States. Florida accepts an Order of Supervision from applicants seeking to obtain a Florida driver’s license as proof of legal presence in the United States.

Chinchilla moved to dismiss the superseding indictment for failure to state an offense under §1546 arguing that the term “authorized stay” means lawful presence in the United States and that no federal statute or regulation expressly identifies an Order of Supervision as evidence of authorized stay in the United States. The district court agreed and dismissed the indictment.

The court of appeals decided that presenting this fraudulent document violated the federal criminal statute, and it reversed the district court. The appeals court found the issue to resolve was the catch-all phrase, “other document prescribed by statute or regulation” as evidence of authorized stay in the U.S. Chinchilla argued that because an alien subject to an Order of Supervision necessarily maintains an unlawful immigration status, an Order of Supervision cannot be evidence of authorized stay in the U.S. Chinchilla argued the Citizenship and Immigration Service’s Adjudicator’s Field Manual uses the phrases “lawful presence” and “authorized stay” synonymously.   He also argued that the Order of Supervision does not fall within §1546’s “other document” clause because no federal statute or regulation or otherwise identifies an Order of Supervision as evidence of authorized stay in the U.S.

The appellate court found that an Order of Supervision does not change an alien’s immigration status in that he maintains an unlawful immigration status and he remains subject to the final Order of Removal. Until he is removed from the U.S. an alien subject to an Order of Supervision is released into and resides in the United States for an indefinite and not necessarily short period of time as long as he complies with the order’s conditions. Additionally, an Order of Supervision may grant an alien employment authorization. The Order notifies anyone presented with the order that the alien has legal permission to be in the U.S. pending removal. The court concluded that the Order of Supervision is a document prescribed by statutes and regulations as proof of formal approval for an alien to remain conditionally in the U.S. Therefor the Order fell under the “other document” clause of the statute.