United States v. Ruberman Chinchilla (11th Cir. Feb. 2021)

The Federal Docket

Visa Fraud – An order of supervision from ICE qualifies as an “other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States” under 18 USC 1546(a).

Ruberman Chinchilla was charged with two counts under 18 U.S.C. 1546(a) for allegedly using a fraudulent order of supervision to obtain a driver’s license in Florida and knowingly using a forged, counterfeit, or fraudulently procured document “prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.” Chinchilla had attempted to obtain a Florida driver’s license by presenting a fraudulent “order of supervision” to the Florida DHSMV as proof of his lawful presence in the U.S. An order of supervision is an order from ICE allowing an unlawful alien to be released from custody while their removal proceedings are pending.

The district court granted Chinchilla’s motion to dismiss the indictment, and the government appealed. On appeal, the issue was whether an “order of supervision” is a document “prescribed by statute or regulation…as evidence of authorized stay…in the United States under Section 1546(a). Chinchilla argued that “authorized stay” under 1546(a) is akin to “lawful presence,” and no federal statute or regulation identifies an order of supervision as evidence of an authorized stay in the U.S. Chinchilla noted that the removal proceedings indicated he was considered an unlawful immigrant and not in fact authorized to stay. The government conceded that an order of supervision does not confer status or benefits under federal immigration laws.

The Eleventh Circuit disagreed, holding as a matter of first impression that an order of supervision from ICE fits in the definition of a “document prescribed by statute or regulation” under 1546(a). Engaging in an exercise of statutory interpretation, the Court concluded that an order of supervision is an “other document prescribed by statute or regulation as evidence of authorized stay” because it does allow an otherwise unlawful immigrant to temporarily remain in the U.S. The Court also noted that “various federal regulations identify orders of supervision as evidence of lawful presence in the United States” and that several states, including Florida, accepts such orders as “proof of legal presence” in the U.S.

Appeal from the Southern District of Florida
Opinion by Lagoa, joined by Wilson and Hull

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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