A number of courts have held that burglary of an automobile does  not constitute “burglary” for purposes of the aggravated felony definition,[188] holding that auto burglary does not fit the generic federal definition of burglary, which involves wrongful entry of a structure, not a car.[189]  See § § 7.37, 8.38, supra.

 

            The Ninth Circuit has also found that auto burglary could not be considered an aggravated felony crime of violence, because 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.[190]  The court also dismissed the INS’ argument that the burglar must use force upon the locked car in order to enter the vehicle.  The Ninth Circuit stated that “the force necessary to constitute a crime of violence must actually be violent in nature,” and noted that 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.[4]

            As with burglary, a plea to “entry into an automobile with intent to commit theft or any felony” should be effective to avoid deportability under an attempted theft aggravated felony theory, or for a conviction of a crime of moral turpitude.  See 9.33, supra.

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

[188] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000); Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000); see also Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 2154 (1990).

[189] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).

[190] The court stated: “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.”  [Citation omitted].  Moreover, because § 459 does not require an unprivileged or unlawful entry into the vehicle [Citation omitted], a person can commit vehicle burglary by borrowing the keys of another person’s car and then stealing the car radio once inside.” Ye v. INS, 214 F.3d at 1133-1134.

Ninth Circuit

SAFE HAVEN - UNAUTHORIZED DRIVING
A California conviction for unauthorized driving, in violation of Vehicle Code 10851, is a good potential safe haven plea that should not constitute a CMT conviction or perhaps an aggravated felony conviction. Depending upon the record of conviction, the offense may be committed with intent to "temporarily deprive" an owner of property, which traditionally is not a CMT.

In United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007), the Ninth Circuit held that Vehicle Code 10851 did not categorically qualify as an aggravated felony, since the offense includes accessory after the fact, and a conviction does not constitute an aggravated felony theft conviction unless the record of conviction establishes that the defendant was a principal, rather than an accessory after the fact, and therefore the conviction does not qualify as an aggravated felony under that category even if a sentence of a year or more is imposed. However, because the law could change on this point, criminal counsel should attempt to obtain a sentence imposed of 364 days or less.