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March 31, 2010

New York Criminal Defense of Forged and Fraudulent Document Charges Immigration Consequences

By Michael H. Joseph

As a New York criminal defense lawyer who also practices criminal defense in Westchester towns with high immigrant populations such as White Plains, Port Chester, New Rochelle, Ossining and Mamaroneck, I have defended numerous undocumented aliens/immigrant who are charged with criminal offenses. One of the most common criminal charges for which undocumented immigrants are arrested is false or forged documents.

The more common charges are violations of New York State Penal Law, sections 170.25 (criminal possession of a forged instrument, 2nd degree) (Class D Felony) and 175.35 (Offering a false instrument for filing, 1st degree) (Class E felony).

New York criminal defense attorneys need to be familiar with the immigration consequences of these charges when discussing plea bargains. Each of these crimes probably constitute a “crime of moral turpitude,” (“CIMT”) as that term is used in the Immigration and Nationality Act (“INA”),inasmuch as each contains as an element, an intent to defraud or deceive. Conviction of a crime of moral turpitude or admission by the alien of the commission of acts constituting the essential elements of such a crime, or an attempt of conspiracy to commit such a crime, renders an alien inadmissible, absent an applicable exception or waiver.

The “petty offense” exception to the crime of moral turpitude ground of inadmissibiility would not be available for a conviction under either section charged, even if the alien was otherwise eligible, as both crimes are classified as felonies.

The following list of plea bargain alternatives, and their immigration consequences, are set forth below in descending order of desirability:

1. adjournment in contemplation of dismissal-should avoid immigration problems

2. Plea to a violation (e.g. disorderly conduct,Penal Law, Section 220.40)-should avoid immigration problems.

3. Plea to offering a false instrument for filing, 2nd degree (Class A misdemeanor) (Penal Law, Section 175.30) is arguably not Crime Involving Moral Turpitude, as intent to defraud is not an element of the offense. Even if it is found to constitute Crime Involving Moral Turpitude, the petty offense exception available, if client has no other Crime Involving Moral Turpitudeat time applies for admission and a prison sentence in excess of six months is not imposed.

4.. Plea to criminal possession of a forged instrument, 3d degree (Class A misdemeanor)(Penal Law, Section 170.20)-constitutes CIMT. However, as crime is not punishable by term of imprisonment of more than one year (i.e. not felony), the petty offense exception to CIMT as ground of inadmissiblity should be available, provided that the client has no other CIMT at the time he applies for admission and a prison sentence of more than six months is not imposed re. this offense.

5. plea to attempted offering a false instrument for filing, 1st degree (Class A misd.) is arguably not Crime Involving Moral Turpitude, as intent to defraud is not an element of the offense. Even if it is found to constitute Crime Involving Moral Turpitude, the petty offense exception available, if client has no other Crime Involving Moral Turpitudeat time applies for admission and a prison sentence in excess of six months is not imposed.

It must always be remembered that ncarceration for any length of time will increase the chances that the ICE (Immigration Customs Enforcment) and the Department of Homeland Security will become aware of the alien’s situation, and will institute immigration court proceedings for deportation against him.

New York criminal defense attorneys should always analyze and explain to the client the potential immigration consequences of a plea and if possible craft the plea to avoid immigration consequences.

 
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