Uttering Forged Instrument – an Aggravated Felony and CIMT in the Eleventh Circuit

The Immigration and Nationality Act (INA) contains provisions that render individuals who are not yet U.S. Citizens inadmissible or removable (deportable) under certain circumstances. For example, convictions of Crimes Involving Moral Turpitude (CIMTs) may lead to an individual being found to be inadmissible or removable, with a limited possibility of applying for a waiver or relief from removal. Additionally, certain serious criminal offenses are referred to as “aggravated felonies” and carry even more severe immigration consequences than CIMTs for foreign nationals seeking permanent residence, citizenship, asylum or relief from removal.

On April 21, 2015, the United States Court of Appeals for the Eleventh Circuit issued a published decision, in Walker v. Holder, No. 14-12814 (11th Cir. 2015), holding that uttering a forged instrument under Florida Statute § 831.02 constitutes an aggravated felony as well as a crime involving moral turpitude. Walker is binding precedent in the Eleventh Circuit, which covers three states: Alabama, Florida and Georgia.

In Walker, the foreign national pleaded no contest to three counts of uttering a forged instrument under the above statute. One of the counts involved an amount over $10,000. When the Department of Homeland Security (DHS) commenced removal proceedings against him, Walker did not dispute that he was convicted of the offenses, but disputed that they constituted removable offenses (aggravated felony or CIMTs). Generally, crimes involving fraud or deceit are considered to be CIMTs, and crimes involving fraud or deceit in which the amount of the loss to the victim or victims exceeds $10,000 fall within one of the categories of offenses labeled as aggravated felonies.

Walker argued that the offense of uttering a forged instrument does not necessarily include deceit, because the statute does not require the intent to injure or defraud. The Court disagreed, reasoning that, whether or not done with intent to injure or intent to defraud, a violator must knowingly deceive — that is, state something is true that he or she knows is, in fact, false. The Court held that deceit makes a violation of § 831.02 an “aggravated felony,” rendering Walker removable. Further, the Court held that Walker is also removable for having been convicted, after admission, of two or more CIMTs not arising out of a single scheme of criminal conduct. The Court reasoned that, because uttering a forged instrument involves deceit, it is a CIMT.

It is critical for non-U.S. citizens who have been charged with a crime to contact experienced immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client’s immigration status.

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