BIA Holds Florida Criminal Mischief Not a CIMT

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 Crime Involving Moral Turpitude (CIMT) may lead to an individual being found to be inadmissible or removable.  Generally speaking, a CIMT is a crime that is inherently base, vile, or depraved.  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.

An unpublished Board of Immigration Appeals (BIA) decision recently held that criminal mischief under Fla. Stat. 806.13(1)(a) is not a CIMT because the statute has been applied to conduct that is not inherently base, vile, or depraved.  The respondent in that case was a lawful permanent resident who was convicted of criminal mischief under the Florida statute.  The BIA reasoned that the statute does not categorically prescribe morally turpitudinous conduct and an individual can be convicted under one or more of its subsections for conduct that is not inherently base, vile, or depraved.  The statute in question criminalizes conduct that only rises to vandalism or malicious destruction of property, without any aggravating factors, such as killing or injuring animals, the use of dangerous devises, or activities in furtherance of a street gang’s criminal enterprise.

An unpublished decision is not binding on any Court or the U.S. Citizenship and Immigration Services (USCIS).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  However, it is uncertain how this unpublished decision will be treated by USCIS and the Immigration Court.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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