BIA Holds Florida Burglary Not a Categorical CIMT

The Immigration and Nationality Act (INA) contains provisions that render a non-U.S. Citizen individual inadmissible, or removable/deportable under certain circumstances, if he or she has been convicted of a Crime Involving Moral Turpitude (CIMT).

In order to determine if a crime is a CIMT, the government first examines the statute of conviction to determine if it fits within a category of criminal activities that is considered morally reprehensible. This determination is a very complex process requiring extensive legal analysis and application of years of court and administrative decisions that set forth the type of criminal activities typically considered to involve moral turpitude. If the statute of conviction falls within one of the CIMT categories, it will be a “categorical” CIMT. If the statute does not fall within any of the CIMT categories, it is not a categorical CIMT and the criminal conviction may not be used against the defendant as a CIMT. However, if the statute of conviction has two or more sections, one of which may be considered a CIMT, the government will engage in a “modified categorical” approach, examining the record of conviction to find out if there is an indication of which subsection the defendant was convicted under. Importantly, under the modified categorical approach, the government is limited to using only certain documents in the criminal case – the so called “record of conviction.”

Generally speaking, crimes involving burglary or breaking and entering may be categorically considered to constitute CIMTs if the specific statute in question requires that certain elements are present for a conviction to be possible, for example that the structure in question be occupied at the time of the breaking. An unpublished decision of the Board of Immigration Appeals (BIA) granted the respondent’s motion to reconsider and acknowledged that burglary under Fla. Stat. 810.02(2)(a) is not categorically a crime involving moral turpitude, because certain subsections do not require the structure in question to be occupied at the time of the breaking. The BIA remanded the case back to the Immigration Court for further consideration under the modified categorical approach.

An unpublished decision is not binding on any Court or the U.S. Citizenship and Immigration Services (USCIS). It may serve as persuasive authority when applying for certain benefits from USCIS or relief from removal in Immigration Court. However, it is uncertain how this unpublished decision will be treated by USCIS and the Immigration Court.

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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