Aggravated Felonies

(B)  Divisible Statute Analysis.  Many states’ burglary statutes are broader than the generic definition that has been adopted for immigration purposes.  Applying categorical and divisible statute analysis, there are many arguments available that convictions under certain state statutes cannot qualify as aggravated felonies.

            For example, California Penal Code § 459 is a divisible statute for purposes of the aggravated felony statute.  It contains some offenses that constitute burglary (e.g., burglary of a building), and some that do not (e.g., burglary of a car).  See § 5.10(D), infra.  It also has no element of unlawful or unprivileged entry, and can be committed by making a completely lawful entry into a department store, for example, which does not establish the “unlawful or unprivileged entry” element required under Taylor.  See § 5.10(C), infra.