Aggravated Felonies

(G)  Crime of Violence.  Burglary of a dwelling has been held to constitute a crime of violence, as defined under 18 U.S.C. § 16(b), for immigration purposes, because the offense involves a significant risk that force will be used in the commission of the offense.  Therefore, if the record of conviction clearly shows entry of a residence,[73] the conviction will be considered an aggravated felony crime of violence.[74]

The government has often argued that burglary of a locked automobile can constitute a crime of violence under 18 U.S.C. § 16(b), claiming that offense by its nature involves the substantial risk that force will be applied against the person or property (i.e., the car), in committing the offense.  The Ninth Circuit has dismissed these claims, stating that (1) while a residential burglar may well unexpectedly encounter people inside a house, the interiors of cars are visible from the outside, and there is little risk that the burglar will stumble upon the occupant, and (2) a person could be found guilty of auto burglary who had entered by using a stolen or borrowed key or going through an open window.[3]  Other courts have disagreed.[75]

The Board of Immigration Appeals held in Matter of Brevia[76] that a violation of Texas Penal Code § 31.07(a), unauthorized use of a motor vehicle, was a crime of violence under 18 U.S.C. § 16(b).[77]  Although the Texas statute only punishes use of a vehicle without the consent of the owner, the BIA found that the offense involved a substantial risk that the vehicle could be damaged in the commission of the offense.  Counsel can argue that this decision only applies within the Fifth Circuit, as the BIA based its decision on a preexisting Fifth Circuit case that came to the same conclusion.[78]

[79] United States v. Matthews, 374 F.3d 872 (9th Cir. July 7, 2004) (conviction of burglary of an occupied building did not constitute a crime of violence under U.S.S.G. § 4B1.2(a)(2), where the parties agreed the term “occupied” did not require a person’s actual physical presence).

[73] See, e.g., United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (Washington conviction of second-degree burglary, under Wash. Rev. Code § 9A.52.030(1) [“A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.”], held to constitute crime of violence for purposes of imposing a 16-level increase in base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003) for illegal re-entry sentence, where signed plea agreement admitted fact charged in information that defendant illegally entered a residence); United States v. Soto-Ornelas, 312 F.3d 1167 (10th Cir. Dec. 3, 2002) (conviction of burglary of a dwelling constitutes a crime of violence, and thus an aggravated felony conviction under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of 16-level illegal re-entry sentence enhancement pursuant to U.S.S.G. § 2.L1.2, cmt. n. 1(B)(ii)(II) (2001)); United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990).  But see United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 30.02, burglary of a building, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).

[74] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (“We find these arguments unpersuasive.  Like the Seventh Circuit, we believe that ‘the force necessary to constitute a crime of violence must actually be violent in nature.’  Solorzano-Patlan, 207 F.3d at 875, n. 10.  And under [Calif. Penal Code § 459], there are numerous ways a person can commit vehicle burglary short of using violent physical force.  He can enter a car through an open window, by means of a stolen key, or with the aid of a ‘slim jim.’  [cite]  Moreover, because § 459 does not require an unprivileged or unlawful entry into the vehicle [cite], a person can commit vehicle burglary by borrowing the keys of another person’s car and then stealing the car radio once inside.”).  See also Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. Mar. 10, 2000) (Illinois conviction of “burglary” of automobile, in violation of 720 ILCS § 5/19-1(a), was not an aggravated felony “burglary offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) that would trigger deportation).

[75] United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. Apr. 12, 2002) (Illinois conviction of burglary, in violation of 720 ILCS § 5/19-1, which includes burglary of dwellings as well as vehicles, held to be an aggravated felony crime of violence, where the defendant failed to object to the pre-sentence report, which described an auto burglary in which a window was pried open, since breaking into the vehicle constituted the use of force against property under 18 U.S.C. § 16(b)); Santos v. Reno, 228 F.3d 591 (5th Cir. Sept. 26, 2000) (Texas conviction of burglary of vehicle, in violation of Texas Penal Code § 30.04(c), with sentence of five years deferred adjudication, constituted crime of violence and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purposes of deportation).

[76] Matter of Brieva, 23 I. & N. Dec. 766 (BIA June 7, 2005).

[77] See § § 5.23-5.31, infra, for a discussion of 18 U.S.C. § 16(b).

[78] United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).