AAO Decision Holds 5 Felony Convictions Are Not CIMT'S
In a recent AAO Decision from February 26, 2016, the AAO dismissed an appeal of an I-601 waiver finding the waiver to be moot because the Applicant was actually not inadmissible despite 5 felony convictions. The appeal came from the denial of an I-601 waiver of grounds of inadmissibility filed with the USCIS Miami, Florida field office.
The applicant was seeking a waiver of criminal grounds of inadmissibility under 8 USC §1182(h). Pursuant to INA §212(h) the applicant filed a waiver application to remain in the US with his USC wife and children.
In a decision dated November 7, 2014, the Director determined that the applicant failed to he had been rehabilitated or that his qualifying relative (USC spouse) would suffer extreme hardship upon his removal.
On appeal the applicant argued that the criminal convictions occurred more than 15 years ago and therefore he need not show extreme hardship to a qualifying relative.
The AAO did not address the Applicant’s arguments because they found the waiver to be moot because the applicant was actually not inadmissible under INA §212(1)(2)(A). The AAO arrived at this decision by applying the categorical approach to the Florida statutes under which the applicant was convicted.
The applicant was convicted of felony burglary under Fla. Stat. §810.02(1)., felony grand theft in violation of Fla. Stat. §812.014(2)(C)(6) felony grand theft auto in violation of Fla. Sat. §812.014(2)(C)(1), felony burglary of structure in violation of FLa Stat. §810.02, felony possession of burglary tools in violation of Fla. Stat. §810.06. All five convictions were in the year of 1997 and all five convictions were third degree felonies under Florida law.
Applying the categorical approach to each of the five statutes the AAO determined that none of the statutes were categorically Crimes Involving Moral Turpitude (CIMT) and therefore none of the convictions render the applicant inadmissible. The AAO further determined that none of the five Florida statutes were divisible under the law.
The AAO compared the Florida Burglary statute to a 1946 BIA case in which the Board determined that the New York burglary statute for burglary was not a CIMT as the act of illegally entering or remaining in a building was not inherently vile or depraved. In Matter of M-, 2 I&N Dec. 721, 723 (BIA 1946) the Board did note that while the act of unlawfully entering a building was not inherently vile or depraved the crime accompanying that act would be a CIMT.
The AAO notes that Florida’s grand theft and grand theft auto statutes do not require intent to permanently deprive the owner of property. The AAO found that since the statute did not categorically require a permanent taking it could not conclude the conviction was a CIMT.
In regards to possession of burglary tools the AAO again defers to a decision from the Board. In Matter of S-, 6 I&N Dec. 796 (BIA 1955) the Board held that possession of burglary tools in violation of Canadian Criminal Code §464(b) was not a CIMT unless the possession was accompanied by intent to use the tools to commit a crime that would be a CIMT.
The AAO therefore held that the waiver application was moot because the applicant was not inadmissible and did not need a waiver. The appeal was dismissed and the case was remanded for further proceedings consistent with their opinion.
This decision is an example of why applicants should always challenge the classification of their criminal conviction as a CIMT. Now that the Supreme Court has adopted a strict categorical approach many crimes that would seem to clearly be a CIMT may actually fall short under strict scrutiny under the categorical approach.
Sometimes 5 felony convictions can all be found to not involve moral turpitude under the strict categorical approach.