What if he was a foreigner?

Sunday, January 3rd, 2016
By: Jonathan MontagJ.D.

Bernard B. Kerik

In November 2009, Bernard Kerik, former New York City Police Commissioner, former Interior Minister of the Iraqi Coalition Provisional Authority, former Commissioner of the New York City Department of Correction, was convicted of obstructing the administration of internal revenue laws, 26 U.S.C. § 7212(a) and assisting in the preparation of false tax returns, 26 § 7206(2). He was sentenced to 33 months in prison for these crimes. He was also convicted of making a false statement on a loan application, 18 U.S.C. § 1014, and five counts of  making false statements to federal officials, 18 § 1001. For these crimes he was sentenced to a 48-month prison sentence.

The tax return matters related to Kerik’s efforts to take $80,000 in revenue deductions for false charitable contributions  in connection with  speeches made about September 11.

Obstruction, 26 U.S.C. § 7212(a), involves corruptly or by force or threats of force (including any threatening letter or communication) endeavoring to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructing or impeding, or endeavoring to obstruct or impede, the due administration of the tax laws. Kerik could be removable for an aggravated felony crime of violence, INA § 101(a)(43)(F) and the aggravated felony of obstructing justice, INA § 101(a)(43) (S).

Assisting in the preparation of false tax returns, 26 § 7206(2), could be considered a fraud with a loss of more than $10,000, an aggravated felony. INA § 101(a)(43)(M).

False statements on a loan application involve defrauding federal agencies. This is conceivably a fraud with a loss of more than $10,000,  an aggravated felony. INA § 101(a)(43)(M).  The also could be perjury offenses, also aggravated felonies pursuant to INA § 101(a)(43)(S).

Fraud offenses are also crimes of moral turpitude, one or two of which, depending, render one deportable.

The aggravated felonies render Kerik deportable. The moral turpitude crimes render him inadmissible. Waivers may be available for the moral turpitude crimes if Kerik had a means to become a permanent resident again. However, if his obstruction crime was a crime of violence, he would face a nearly insurmountably difficult standard for a waiver. “The Attorney General, in general, will not favorably exercise discretion … except in extraordinary ot favorably exercise discretion … except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.” 8 C.F.R. § 212.7(d).

This would not be Kerik’s first deportation. He was apparently deported from Saudi Arabia in 1984 after working there as a security officer at a hospital in Riyadh. He apparently ruffled feathers by over-zealously enforcing Islamic law at the hospital. Go figure. Posted January 3, 2016.


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