Intellectual Property Law

Trafficking in Counterfeit Labels Renders Alien Inadmissible to Stay in United States

By Michael Atkins

On Aug. 6, the Ninth Circuit concluded that willingly trafficking in counterfeit goods constitutes “inherently fraudulent” conduct that renders an alien ineligible for a visa to remain in the United States.

Mr. Hung Lin Wu, a 45-year-old permanent resident of the United States and citizen of Taiwan, pleaded guilty to trafficking in counterfeit labels. The U.S. Board of Immigration Appeals found this was a crime involving moral turpitude and, therefore, that Mr. Wu was ineligible to remain here.

Mr .Wu appealed.

The Ninth Circuit denied his petition.

In particular, the Ninth Circuit found that pleading guilty to “knowingly [trafficking] in a counterfeit label affixed or designed to be affixed to” a specified set of materials is “categorically a plea to an inherently fraudulent crime because the statute of conviction’s elements fit within the definition of inherently fraudulent conduct, which is knowingly making false representations in order to gain something of value.”

“First, counterfeit labels are by definition false representations because they ‘appear[] to be genuine, but [are] not.’ Persons who traffic in such materials knowing them to be counterfeit perpetuate the false representation, as they are knowingly passing off counterfeit material as real. Second, according to [18 U.S.C.] § 2318, the term ‘traffic’ means ‘to transport … as consideration for anything of value.’ Therefore, the act of trafficking is done necessarily ‘to gain something of value.’”

By this reasoning, and under the Ninth Circuit’s recent decision in Tall v. Mukasey (STL post here), the court found that Mr. Wu had committed a crime of moral turpitude, rendering him inadmissible to live here.

The case cite Wu v. Mukasey, 2008 WL 3166511 (9th Cir. Aug. 8, 2008).

Full post as published by Seattle Trademark Lawyer on August 18, 2008 (boomark / email).