quick reference chart and notes for determining immigration - ILRC

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