Safe Havens

 

(A)  Aggravated Felonies.[117]  See § 7.37, supra.

 

            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 . . . .”[118]  “[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.”[119]

 

            Burglary may, in some cases, be considered an aggravated felony crime of violence.[120]  For example, if the conviction is for felony burglary of an inhabited building, the reviewing court could conclude that the offense involved a substantial risk that violence would be used in the course of committing the act, if the homeowner arrived during the burglary and the burglar assaulted him or her, and therefore is a crime of violence.[121] 

            A burglary conviction can also be considered an attempted theft offense, and thus an aggravated felony, when the burglary was committed with the intent to commit theft or larceny.[122]

            However, in the proper circumstances, a burglary conviction can completely avoid classification as an aggravated felony or a crime of moral turpitude.  See § § 9.33, ff., infra.

 

            (1) Burglary Offense.

 

Board of Immigration Appeals:

 

Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000) (en banc) (burglary of a vehicle, in violation of Texas Penal Code § 30.04(a), is not a “burglary offense” within the definition of an aggravated felony INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998)).

 

Seventh Circuit:

 

United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111, 151 L.Ed.2d 1006 (2002) (Illinois conviction was not “theft offense,” within meaning of aggravated felony definition contained in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of illegal re-entry sentence enhancement, where defendant admitted he unlawfully entered motor vehicle with intent to commit theft, but neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle).

 

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).

 

Ninth Circuit:

 

Ye v. INS, 214 F.3d 1128, 168 A.L.R. Fed. 789 (9th Cir. June 9, 2000) (California conviction of vehicle burglary in violation of California Penal Code § 459 did not constitute “burglary” within the federal aggravated felony definition, INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), nor “crimes of violence” within 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).

 

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).

            (2) Crime of Violence.

 

Fifth Circuit:

 

United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas 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, as an element, the use of force).

 

United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of burglary of a building, in violation of Texas Penal Code Ann. § 31.07(a) (1994), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

 

United States v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc) (Texas conviction of simple motor vehicle theft not a crime of violence under U.S.S.G. § 4B1.2(a)(2) for federal firearm offense sentencing purposes, since the indictment did not suggest the offense involved a serious potential risk of injury to a person; note that this definition of “crime of violence” differs from the definition contained in 18 U.S.C. § 16(b)).

 

Ninth Circuit:

 

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).

 

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).

This holding may also be applicable to the immigration context (where “crime of violence” is defined by 18 U.S.C. § 16), because although the sentencing guideline in question has a different definition of crime of violence, the case is more about the Federal vs. State definitions of Burglary, in light of Taylor. Since the Washington State residential burglary statute defines dwelling as a ‘building’ and includes fenced areas, cargo containers and railroad cars, which are not included in the Federal definition, the Washington statute should be divisible for aggravated felony purposes as well.

Ye v. INS, 214 F.3d 1128, 168 A.L.R. Fed. 789 (9th Cir. June 9, 2000) (California conviction of vehicle burglary in violation of California Penal Code § 459 did not constitute “burglary” within the federal aggravated felony definition, INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), nor “crimes of violence” within INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).

 

            (3)  Attempted Theft.

 

Fifth Circuit:

 

Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code Ann. § 30.04(a) (West 1987), with suspended sentence of four years imprisonment, was not a theft offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), sufficient to render noncitizen deportable and to deprive Court of Appeals of jurisdiction to review removal order of the BIA).

[117] See N. Tooby, Aggravated Felonies § § 5.19 (2003).

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

[119] 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)); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

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

[121] 18 U.S.C. § 16(b) provides that a felony that is likely to involve use of force in its commission is a crime of violence. 

[122] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U) (attempt or conspiracy to commit an aggravated felony).