Aggravated Felonies

(C)  The Requirement of Unlawful or Unprivileged Entry.  The generic burglary definition requires that the entry be “unlawful or unprivileged.”[60]  Therefore, where the conviction may have been committed upon a lawful, privileged entry into a building (i.e., entry into a store during business hours), the conviction is not an aggravated felony burglary offense.

California Penal Code § 459 penalizes simple “entry,” rather than requiring the entry to be unprivileged or unlawful.  Therefore, a conviction of violating this statute does not, by itself, establish a conviction of a generic “burglary,” since it does not require that the entry be illegal or unprivileged.[61] 

However, if the charging paper charges “unlawful entry,” and the defendant pleads guilty as charged, then the immigration authorities can take the position the defendant admitted an unlawful entry sufficient to meet this element of the generic definition.[62]  Counsel can counter this argument by noting that there is no “unlawful or unprivileged” entry element in the California statute, and therefore the inclusion of the term “unlawful” in the charge is mere surplusage.[63]

[60] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (emphasis supplied) (adopting definition of burglary from Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143 (1990)); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[61] United States v. Parker, 5 F.3d 1322, 1325 (9th Cir. 1993) (holding that Information charging burglary did not satisfy Taylor because of failure to allege “unlawful or unprivileged” entry); cf. United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. Aug. 12, 2001); United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir. 2000); United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir Jan. 5, 2005) (because defendant’s guilty plea to California residential burglary included the word “unlawfully,” it satisfied the unlawful entry requirement absent in California’s statutory definition of burglary under Penal Code § 459 and constituted aggravated felony for purposes of triggering upward enhancement for “crime of violence” under Sentencing Guidelines).

[62] United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir Jan. 5, 2005).

[63] See § 4.22(B), supra.