James C. Tai, Attorney at Law

Great Reference for whether burglary offenses in Florida are crimes against moral turpitude and/or aggravated felonies. 

PRACTICE ADVISORY The Immigration Consequences Of Florida Burglary By Immigration Clinic University of Miami School of Law February 2015​
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Link 

1. Deferral Under the Convention Against Torture (CAT) granted to detained individual from Romania who suffers from sever mental illnesses. 

2. Immigration Judge held that a conviction for Trafficking in Amphetamine in violation of Fla. Stat. §893.135(1)(f)(1)(a) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

3. Immigration Judge held that possession of cocaine with intent to purchase in violation of Fla. Stat. §893.13(1)(a)(1990) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

4. Immigration Judge terminated proceedings holding that Fla. Stat. 540.11(3)(a)(3)(Unauthorized Sale of Sound Articles) is not a crime involving moral turpitude.   

Under INA § 240A(a),the Attorney General may cancel the removal of a non-citizen and allow the non-citizen to remain as a lawful permanent resident of the United States. The relief of cancellation under INA § 240A(a) applies to eligible non-citizens placed in removal proceedings on or after April 1, 1997.

Under§ 240A(a), an LPR must (1) have been lawfully admitted for permanent residence for not less than five years[*1], (2) have resided in the United States continuously for seven years after having been admitted in any status[*2], and (3) not have been convicted of any aggravated felony.

INA § 240A(d), also known as the “stop-time” rule, defines when continuous residence or continuous physical presence ends. It states that continuous residence ends at the moment the non-citizen commits certain acts or crimes or is served with a Notice to Appear (NTA) for removal proceedings before an Immigration Judge. Specifically, the time stops accruing

(A) when the alien is served a notice to appear under section 239(a), or

(B) when the alien has committed an offense[*3] referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

*1 The accrual of the 5 years of permanent resident status is not subject to the stop-time rule.

*2 Admitted in any status – start to count from date of first legal admission. (example… if respondent entered without inspection, and later adjust status (e.g. NACARA, Haitian Refugee, etc), the date to start calculating the 7 year continuance residence is at the date of adjustment, not at the time of initial entry.

*3  Matter of Jurado, 24 I&N Dec. 29 (BIA 2006) (an alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act in order for the alleged criminal conduct (conviction of the crime) to terminate the alien’s continuous residence in this country).

*4 
INA 212(a)(2) Criminal and related grounds 

(A) Conviction of certain crimes

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),  is inadmissible.

(B) Multiple criminal convictions

(C) Controlled substance traffickers

(D) Prostitution and commercialized vice

(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution

(F) Waiver authorized

(G) Foreign government officials who have committed particularly severe violations of religious freedom

(H) Significant traffickers in persons

(I) Money laundering

*5 
INA 237(a)(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude Any alien who

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

 is deportable.

(ii) Multiple criminal convictions CIMT

(iii) Aggravated felony 

(iv) High speed flight 

(v) Failure to register as a sex offender 

(B) Controlled substances (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana)

(C) Certain firearm offenses

(D) Miscellaneous crimes

Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate--

(i) relating to espionage, relating to sabotage, treason and sedition for which a term imprisonment of five or more years may be imposed;

(ii) any offense under section 871 or 960 of title 18;

(iii) a violation of any provision of the Military Selective Service Act (50 App. U.S.C.451 et seq.) or the Trading With the Enemy Act (50 App. U.S.C. 1 et seq.); or

(iv) a violation of section 1185 or 1328 of this title,

is deportable.

(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and

(i) Domestic violence, stalking, and child abuse 

(ii) Violators of protection orders 

(F) Trafficking (persons)

*6 
INA 237(a)(4) Security and related grounds

(A) In general

Any alien who has engaged, is engaged, or at any time after admission engages in--

(i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

(ii) any other criminal activity which endangers public safety or national security, or

(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,

is deportable.

     Recent immigration court rulings have held that Fla. Stat. 812.014(2)(c)(1) [grand theft] (petty theft included) is not a crime involving moral turpitude (CIMT), if the record of conviction (modified categorical approach) can not establish whether Respondent was convicted for temporary or permanent deprivation and appropriation. Further, retail theft (shoplifting) under Fla. Stat. 812.014 is not a CIMT and that Matter of Jurado-Degado 24 I&N Dec. 29, 33 (BIA 2006) is not applicable to the Florida statute. 

 If the respondent is only removable/inadmissible for the Fla. theft offense, termination of the case may be appropriate. 

      Further, these Fla. theft charges should not trigger stop-time rule for cancellation of removal purposes, and may not constitute aggravated felonies (even if 1 year of imprisonment). 

    See attached file for sample motion to terminate.