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