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Upon Further Review, Second Circuit Holds That Defendant’s Conduct not “in Furtherance of” Alien’s Unlawful Presence in United States

In United States v. Khalil, No. 15-3819 (2d Cir. May 16, 2017) (Calabresi, Wesley, Lohier), the Second Circuit reversed the defendant’s conviction for transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i).  It did so based on the Government’s failure to put forward sufficient evidence at trial to establish that Khalil transported an alien “in furtherance of” the alien’s illegal stay in the United States. 

Khalil and his brother operated an international passport fraud ring in Pakistan, the United States, and the United Kingdom.  The brothers’ operation specialized in creating high-quality identity documents such as passports and work permits, and it also helped undocumented aliens to illegally enter the U.S. and Canada, sometimes helping them to find housing and jobs.  Based on his role in the operation, a grand jury returned a ten-count, third superseding indictment in April 2015.  After the Government’s case in chief, Khalil moved for a judgment of acquittal on each count, but that motion was denied.  Khalil was ultimately convicted on all counts. 

Khalil’s conviction on Count 4—the one that the Second Circuit reversed—was based on the following facts.  In 2002, Khalil’s brother provided a Pakistani man with a false UK passport and arranged for his travel from London to New York using the fraudulent passport.  When the man arrived in New York, Khalil used fraudulent licenses to help him obtain employment as a taxi driver.  In 2010 the man approached Khalil and asked him to provide him with a fake British passport, which the man believed would help him to obtain legal status in the United States.  Khalil recommended that the man instead use the passport to travel to Canada, where he and his brother had previously sent clients who had successfully obtained legal status.  The man agreed to this alternative plan.  When the fake passport was ready, Khalil contacted the client, brought him to Penn Station in Manhattan, and bought him a train ticket to Montreal.  The client boarded the train but was arrested by U.S. Customs and Border Protection before crossing the border to Canada. 

Under 8 U.S.C. § 1324(a)(1)(A)(ii), a person commits the offense of unlawfully transporting an alien within the United States when he (1) knows or recklessly disregards the fact that an alien has come to, entered, or remains in the U.S. in violation of law, and (2) transports, moves, or attempts to transport or move that alien within the United States by means of transportation or otherwise, “in furtherance of such violation of law” (emphasis added).  With respect to the “in furtherance of” element, the district court instructed the jury that the evidence must show “a direct and substantial relationship between the transportation and its furtherance of the alien’s unlawful presence in the United States.  Transportation of an alien unlawfully within the country is not, by itself, a violation of the statute if it is merely incidental to the alien’s presence in the United States.”   Khalil failed to object to these instructions and the Second Circuit did not express a view as to whether they were proper.

In moving for a judgment of acquittal on this count, Khalil argued that the act of driving his client to Penn Station was not in furtherance of the individual’s unlawful presence in the United States but was instead in furtherance of ending the individual’s presence in the United States.  Although the district court rejected this contention, the Second Circuit was persuaded by his argument, explaining that the evidence did not support the inference that the transportation Khalil provided furthered an alien’s unlawful presence in the United States.  The Second Circuit suggested, however, that the outcome may have been different had the Government presented evidence that Khalil intended to help his client enter Canada in order for the client to somehow return to the United States illegally at a later date.  Khalil, who received a sentence of 51 months’ imprisonment, will be given a de novo resentencing.

While the Khalil decision presented a unique set of facts that may not often arise in similar cases, it provided the Court with an opportunity to clarify the scope of 8 U.S.C. § 1324(a)(1)(A)(ii).  Based on news reports and public statements from the current administration, we can expect an increase in immigration prosecutions.  It will be important for the courts to continue to scrutinize convictions for sufficient evidence or other errors.

-By Jared Buszin and Harry Sandick