The petitioner, Alberto Noriega-Perez, pled guilty to conspiracy to possess forged, counterfeit, and false immigration documents in 1992. He was fined $20,000 and sentenced to 18 months’ imprisonment, but after he filed a habeas petition in 1994, his sentence was reduced to time served and the fine was reduced to $5,000.

Two months after the guilty plea, the INS served a notice of intent to fine Noriega under INA section 274C, and he filed a response opposing the fine, stating that he had already been sentenced for the conduct alleged in the notice.  In January 1995, the INS filed a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO), charging that Noriega had violated section 274C by forging 8 temporary immigration documents and possessing 298 fraudulent INS Forms I-94, 21 fraudulent Social Security cards, and one fraudulent I-151 alien registration ("green") card.  The complaint sought a fine of $96,000.

In October 1995, an administrative law judge granted the INS’s motion for summary judgment in the case and ordered further briefing regarding both the appropriate amount for a fine and whether imposition of the fine would constitute double jeopardy.  In March 1996, the ALJ issued an order imposing a fine of $96,000.  In imposing it, the ALJ noted Noriega’s monetary motivation, the failure to offer mitigating factors, and his prior conviction for transferring counterfeit Federal Reserve notes. Noriega then filed a petition for review of the order with the court of appeals.

In its decision, the court of appeals rejected Noriega’s claim that the fine was excessive, noting that he had possessed and counterfeited over 300 fraudulent documents and that the INS asserted it had borne a cost of approximately $48,000 to investigate the case.  The court also rejected the double jeopardy claim, finding that a conviction for conspiracy to possess false documents is separate from the charge made under section 274C that Noriega committed document fraud.

Turning to Noriega’s claim that document fraud cases brought under INA section 274C must be determined by a federal judge rather than an administrative official under the constitutional "separation of powers" requirement, the court found that a two-part test is required to assess the claim.  The court must first determine whether the fine is civil or criminal in nature and then determine whether, considering the nature of the fine, the grant of jurisdiction to an ALJ is constitutional.  After reviewing the factors set forth in Hudson v. United States, 522 U.S. 93 (1997), which established the factors to be considered in determining whether a subsequent proceeding violates the constitutional prohibition against double jeopardy, the court concluded that document fraud charges under section 274C are civil in nature.  The court then found that adjudication by an ALJ was also appropriate for the nature of the fine because the procedures afford due process protection and historically immigration issues have been handled administratively.

Judge Ferguson dissented from the decision, objecting to the majority’s application of the Hudson test regarding double jeopardy to the determination of the separation of powers issue.  Judge Ferguson concluded that the 274C penalty is criminal in nature, requiring that a federal judge insulated from political pressure make this adjudication.

Noriega-Perez v. U.S., __ F.3d __, 1999 U.S. App. LEXIS 11823, No. 96-70513 (9th Cir. Jun. 9, 1999).