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
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
Aggravated Felony as a Crime of Violence. Felony burglary of a dwelling or its curtilege<br />
(yard) is categorically a crime of violence. 179 A plea to P.C. § 460(a) will be held a crime of<br />
violence. In addition, counsel should keep from the record indications that actual violence, e.g.<br />
smashing a lock, was used in the commission of the offense. Simply opening a door or window,<br />
or using an instrument such as a slim jim, is not actual violence <strong>for</strong> this purpose. 180<br />
Aggravated Felony as Attempted Theft, or Attempted Other Aggravated Felony. The<br />
statutory definition of aggravated felony includes attempt to commit an aggravated felony. 181 A<br />
plea to entry with “intent to commit larceny” where a sentence of a year or more is imposed is an<br />
aggravated felony as an “attempted theft.” 182 Intent to commit specific acts that are not<br />
aggravated felonies will avoid this; otherwise a general plea to intent to commit “larceny or any<br />
felony” will prevent deportability. See Chart <strong>for</strong> suggestions of felony offenses that do not<br />
constitute an aggravated felony, including when a sentence of a year or more is imposed.<br />
Instructions <strong>for</strong> plea. Where a plea to § 460(b) will involve a sentence of a year or more, the<br />
goal is to fashion a specific plea that avoids all of the above, or if that is not possible, a plea that<br />
leaves the record vague <strong>and</strong> does not establish the above.<br />
The record should establish, or at least leave open, that:<br />
‣ The burglary was not of any kind of dwelling or its yard (because this would be the<br />
aggravated felony a “crime of violence”). The conviction cannot be pursuant to P.C. 460(a),<br />
but may be pursuant to § 460(b), or if that is not possible to § 460 where the record of<br />
conviction does not indicate whether (a) or (b) was the subject of the conviction, <strong>and</strong><br />
‣ The burglary was not of a building or structure, or that the entry was lawful, or both (because<br />
“burglary” is an unlawful entry of a building or structure), <strong>and</strong><br />
‣ The entry or any part of the burglary was not effected by violent <strong>for</strong>ce (because this might be<br />
held a “crime of violence”). Entry by opening a door or window, or using a tool such as a<br />
slim jim to open a window, is not violent <strong>for</strong>ce, <strong>and</strong><br />
‣ The intent was not to commit “larceny” (theft) or any other offense that itself is an<br />
aggravated felony (because this would be an attempted aggravated felony). Intent should be<br />
to commit “any felony,” or “larceny or any felony,” or better yet to a specified offense that is<br />
not an aggravated felony, e.g. not theft, a crime of violence, sexual abuse of a minor, etc.<br />
179 See James v. United States, 127 S.Ct. 1586, 1600 (U.S. 2007) holding that felony burglary of a fenced-in yard<br />
around a house, while it is not a “burglary” under Taylor, is a “crime of violence” because it presents the inherent<br />
risk that violence will ensue.<br />
180 See, e.g., Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).<br />
181 INA §101(a)(43)(U), 8 USC §1101(a)(43)(U).<br />
182 Ngaeth v. Mukasey, 545 F.3d 796 (9 th Cir. 2008) (burglary with intent to commit larceny is an aggravated felony<br />
as attempted theft).<br />
N-112 Immigrant Legal Resource Center