quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
A. Burglary
§ N.13 Burglary, Theft and Fraud
(For more information, see Defending Immigrants in the Ninth Circuit,
Chapter 9, §§ 9.10, 9.13 and 9.35, www.ilrc.org/criminal.php)
With careful attention to creating a vague record of conviction, a conviction for burglary
can have no immigration consequences. Without careful pleading and with a sentence imposed
of a year or more, it is easy for burglary to become an aggravated felony. Note that possession
of burglary tools (PC § 466) may lack any adverse immigration consequences; see Chart.
1. Burglary as an aggravated felony
A California burglary conviction with a sentence imposed of at least one year can
potentially qualify as an aggravated felony in any of three ways: as “burglary,” as a “crime of
violence,” or, if it involves intent to commit theft, as “attempted theft.” See 8 USC §
1101(a)(43)(F), (G). (It also can constitute a crime involving moral turpitude; see next section.)
With careful pleading counsel may be able to avoid immigration penalties for this offense.
Burglary is not an aggravated felony under any theory, unless a one-year sentence has
been imposed. A sentence of 364 days or less for each count avoids an aggravated felony as
burglary, theft or a crime of violence, and avoids the necessity for using the following analysis.
For suggestions on how to avoid a one-year sentence even in a somewhat serious case see § N.3:
Sentence Solutions.
If it is not possible to avoid a one-year sentence on a count, one still can avoid conviction
of an aggravated felony by pleading to § 460(b) and following a complicated, but doable, set of
instructions. Where a sentence of a year or more is imposed, the three threats are:
Aggravated Felony as Burglary. The Supreme Court has held that “burglary” requires an
unlawful or unprivileged entry into a building or structure. 177 Counsel should have the record
reflect a lawful entry, or at least not reflect an unlawful entry. 178 Or, even with an unlawful
entry, an offense is not burglary unless it is of a “building or structure.” Burglary of a car, boat,
yard, boxcar, etc. is not of a structure. So, the plea must involve a lawful entry or a nonstructure,
or both. If you can’t arrange a plea specifically to this, leave the record vague so as to
be open to this possibility, i.e. don’t specify both an unlawful entry and a building or structure.
177 Taylor v. United States, 494 U.S. 575 (1990). The complete definition of burglary is an unlawful or unprivileged
entry into a building or structure with intent to commit a crime.
178 A panel had held that no conviction under § 459 is “burglary” because unlawful entry is not an element of the
offense, but the Court is going to consider this question en banc, rehearing United States v. Aguila-Montes de Oca
(“Aguila-Montes II”), 553 F.3d 1229 (9 th Cir. 2009), superseding 523 F.3d 1071 (9 th Cir. 2008).
Immigrant Legal Resource Center N-111