(A)  Definition of the Generic Offense.  The statute explicitly includes as an aggravated felony “a burglary offense for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year . . . .”[324] 

 

            The term “burglary” has been given a definite federal meaning in a related context, a meaning which excludes state convictions under a number of state statutes from the federal definition.  Many burglary convictions will not be considered aggravated felony convictions, even if a sentence of one year or more is imposed. “[T]he term ‘burglary,’ as used in INA § 101(a)(43)(G),  8 U.S.C. § 1101(a)(43)(G), has a uniform definition independent of the labels used by state codes . . . -- the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[325]

            The elements of this ground of deportation are therefore:

 

            (1)  a conviction of

            (2)  unlawful or unprivileged

            (3)  entry into, or remaining in,

            (4)  a building or structure

            (5)  with intent to commit a crime

            (6)  with a sentence of one year or more.

 

If any of these elements is missing from the statute of conviction, or if the record of conviction is unclear whether the defendant was actually convicted of that element, the conviction cannot trigger deportation under this ground.  Because the Supreme Court has issued this definition, the BIA and all circuits must follow its guidance on this point.

            The Supreme Court decision in Taylor v. United States provides an important model for creating and using a generic definition of an offense.[326]   There the court overturned a lower court’s ruling that conviction of any state offense bearing the title “burglary” should qualify as a prior conviction of burglary, for purposes of triggering an enhanced federal criminal sentence under 18 U.S.C. § 924(e).[327]  It noted that states had widely different definitions of burglary.  As an example it pointed to California’s definition of burglary as being defined so “broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile,” whereas burglary traditionally referred only to buildings.[328]   The court did not want federal defendants receiving different sentences based on the vagaries of such disparate state laws.[329]

            The court ruled that, given that the sentence enhancement provision itself offered no definition of burglary, it was necessary to adopt a uniform, “generic” federal definition of burglary for this purpose.  To do this, the court looked at several sources.  It considered using the common-law meaning, but found that in the case of burglary most states had decided to define the offense much more broadly than the original definition.[330]  The court went on to consult the Model Penal Code and basic hornbooks on criminal law.[331]  Deciding that “Congress meant by ‘burglary’ the generic sense in which the term is now used in most States’ criminal codes,”[332] the court derived a generic definition of burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”[333]  

            Under the generic Taylor definition, burglary of a building under statutes such as Calif. Penal Code § 459 [334] has been held to constitute “burglary.” 

[324] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

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

[326] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990) (holding that a state conviction for burglary only constitutes such an offense for purposes of 18 U.S.C. § 924(e), when the offense’s statutory definition substantially corresponds to the generic federal definition).

[327] 18 U.S.C. § 922(e)(2)(B)(ii) provides a sentence enhancement for a person convicted of a violent felony, and specifically defines violent felony to include “burglary.”

[328] Taylor, supra, 495 U.S. at 591, 110 S.Ct. at 2154; United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington residential burglary, Wash. Rev. Code § 9A.52.025(1), not a “burglary of a dwelling” crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since state statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context).

[329] The court stated: “Thus, a person imprudent enough to shoplift or steal from an automobile in California would be found . . . to have committed a burglary constituting a “violent felony” for enhancement purposes — yet a person who did so in Michigan might not.  Without a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress’ omission of a definition of “burglary” in a way that leads to odd results of this kind.”  See Dickerson v. New Banner Institute, Inc. 460 U.S. 103, 119-120, 103 S. Ct. 986 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, “Because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control”); United State v. Turley, 352 U.S. 407, 411, 77 S. Ct. 397 (1957) (“In the absence of plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law”).

[330] The court noted that using common-law meaning “has some appeal, in that common-law burglary is the core, or common denominator, of the contemporary usage of the term . . . . The problem with this view is that the contemporary understanding of “burglary” has diverged a long way from its common-law roots. . . . This court has declined to follow any rule that a statutory term is to be given its common-law meaning, when that meaning is obsolete or inconsistent with the statute’s purpose. . . .”  Ibid., 495 U.S. at 592-593, 110 S.Ct. at 2155-56.

[331] The Court consulted LaFave & Scott, substantive criminal law, § 8.13 (1986), as a source for summarizing the law of several states; Blackstone, commentaries as a source of common law; and the Model Penal Code.

[332] Taylor, supra, 110 S.Ct. at 2147.

[333] Id. at 2158.

[334] Calif. Penal Code § 459 provides: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in § 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of § 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in § 635 of the Vehicle Code, any house car, as defined in § 362 of the Vehicle Code, inhabited camper, as defined in § 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by § 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”

AGGRAVATED FELONY " BURGLARY
Descamps v. United States, ___ U.S. ___, ___ (Jun. 20, 2013) (California conviction of burglary, in violation of Penal Code 459 (entry without requiring unlawful entry with intent to commit theft or any felony), is overbroad with respect to the generic federal definition of burglary, for purposes of federal sentence enhancement under the ACCA for a prior burglary conviction, because generic unlawful entry is never an element of 459, a conviction under that statute is never for generic burglary.).

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT
James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

Note: James v. United States does not apply to the question whether the statute triggers a 16-level sentence enhancement for illegal reentry after deportation, as a "burglary of a structure" enumerated offense, since USSG 2L1.2 cmt. n.1(B)(iii) does not contain a similar residual provision). United States v. Gomez-Guerra, ___ F.3d ___ (5th Cir. April 23, 2007) (United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ("burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), does not include residual clause similar to that construed in James).

AGGRAVATED FELONY - BURGLARY - BURGLARY
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 (California conviction for first-degree residential burglary, in violation of Penal Code 459, could not categorically constitute a crime of violence (burglary of a dwelling) under USSG 2L1.2(b)(1)(A), cmt. n. 1(B)(iii), so as to warrant 16-level enhancement of sentence for illegal reentry, because the California offense encompasses a broader range of proscribed conduct than does the generic offense of the Guidelines since it does not require that the entry be "unlawful or unprivileged" as the federal definition does), following United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

AGGRAVATED FELONY - BURGLARY
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (California conviction for burglary, in violation of Penal Code 459, was not a "burglary of a dwelling" for illegal re-entry sentencing purposes because the California statute may be committed without an "unlawful or unprivileged" entry), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

AGGRAVATED FELONY - BURGLARY - UNLAWFUL ENTRY REQUIREMENT
United States v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. Feb. 1, 2008) (California conviction for violation of Penal Code 459 is not categorically a crime of violence for illegal-reentry sentencing purposes, because the state statute does not require as an element that the entry be unlawful [i.e. without consent]), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007) (California conviction under Penal Code 459 for residential burglary does not constitute a crime of violence for purposes of U.S.S.G. 2L1.2(b)(1)(A)).

AGGRAVATED FELONY - BURGLARY
United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. Jun. 25, 2007) (Tennessee conviction of burglary of a dwelling, in violation of Tenn. Code Ann. 39-14-403, is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the statute of conviction punishes burglary where the intent to commit the crime was not formed until after the actor unlawfully enters or remains in a dwelling).

AGGRAVATED FELONY - BURGLARY - FLORIDA BURGLARY NOT AN AGGRAVATED FELONY
United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute 810.02(3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( "burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), for purposes of imposing a 16-level enhancement to a sentence for illegal reentry after deportation, since the "ordinary, contemporary, common meaning" of "burglary of a dwelling" does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself), citing United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005) (Texas conviction of burglary of a habitation, in violation of Texas Penal Code 30.02, "is equivalent to the enumerated [crime of violence] offense of burglary of a dwelling"); cf. James v. United States, 550 U.S. ___, 127 S.Ct. 1586, ___ (2007), slip op. at 18 ("We agree that the inclusion of curtilage takes Florida's underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure. ") (emphasis in original), citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

BURGLARY - ELEMENTS -- INTENT TO STEAL - TIMING OF
United States v. Jones, 993 F.2d 58, 61-62 (5th Cir.1993) (distinguishing between 18 U.S.C. 2113(a) and (b), where the former requires that an intent to steal exists prior to entry of the bank, while the intent required for (b) may be formed after entry into the bank).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

AGGRAVATED FELONY " BURGLARY " BURGLARY
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011) (en banc) (California conviction of burglary, under Penal Code 459, does not qualify as a generic burglary conviction for illegal re-entry sentencing purposes, even if the defendant pleaded guilty to entering a building unlawfully or a jury found the defendant guilty as charged in an indictment reciting that allegation, since the California definition of unlawful entry includes a licensed or privileged entry into a building with intent to commit a crime, where the generic definition of burglary requires that the entry itself be unlicensed or unprivileged).

AGGRAVATED FELONY - BURGLARY OF A DWELLING - GUIDELINES DEFINITION
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 ("burglary of a dwelling under the Guidelines takes on its generic, contemporary meaning, and includes the following elements: the " unlawful or unprivileged entry into, or remaining in, a building or other structure [that is a dwelling], with intent to commit a crime."), quoting United States v. Rodriguez-Rodriguez, 393 F.3d 849, 852 (9th Cir. 2005).

AGGRAVATED FELONY - BURGLARY
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (Oregon conviction of second-degree burglary, in violation of Or.Rev.Stat. 164.215(1), is not a categorical burglary for purposes of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), to apply a sentence enhancement requiring a minimum of 180 months in prison, because it encompasses burglary of non-buildings, and therefore falls outside the federal definition of generic burglary), overruling United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990) (Oregon conviction of second-degree burglary is a categorical burglary under Taylor v. United States, 495 U.S. 575 (1990), for purposes of applying the Armed Career Criminal Act).

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Guerrero-Velasquez, ___ F.3d ___ (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 reentry sentence, where signed plea agreement admitted fact charged in information that defendant illegally entered a residence).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf

AGGRAVATED FELONY - BURGLARY - BURGLARY
United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal career criminal act sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor generic definition of burglary offense).

Tenth Circuit

AGGRAVATED FELONY - BURGLARY - INCLUDES BUILDINGS AND OTHER STRUCTURES
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (federal generic definition of burglary includes structures other than buildings, such as boats and tents); citing Taylor v. United States, 495 U.S. 575, 598 (May 29, 1990) (burglary includes "building or other structure"); United States v. Cummings, 531 F.3d 1232, 1235 (10th Cir.2008) (generic burglary can include structures other than buildings; court declined the invitation to find the phrase or other structure superfluous); United States v. Grisel, 488 F.3d 844, 848 (9th Cir. June 5, 2007) ("the substitution of the term building or structure for the term building .... was one of form, not substance.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - "DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (burglary of a "dwelling" includes any "enclosed space that is used or intended for use as a human habitation," including mobile homes, house boats, camp structures, and hotel rooms).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY - TAYLOR DOES NOT CONTROL SENTENCING CASES USING PHRASE "BURGLARY OF A DWELLING"
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Taylor definition of "burglary" does not control decision of meaning of "burglary of a dwelling," which is enumerated in the list of crimes considered to be crimes of violence for illegal re-entry sentencing purposes), following United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006), disagreeing with United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) (applying Taylor definition of burglary to illegal re-entry sentencing case).