quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
3. Burglary of a non-Dwelling with Intent to Commit Certain Offenses, P.C. § 460(b)
For the Defendant. An offense is not a “burglary” unless the record establishes that it is an
unlawful entry or remaining in a building or structure (as opposed to car, yard, or boxcar) with
intent to commit a crime. A burglary offense is not a “crime of violence” unless the record
establishes that it is of a dwelling. Ye v. INS, 214 F.3d 1128 (9 th Cir. 2000). A burglary offense
is not an aggravated felony as “attempted theft” unless the record establishes that the entry or
remaining was with intent to commit theft/larceny, as opposed to “larceny or any felony.”
Burglary has been held to be a crime involving moral turpitude only if (a) it involves intent to
commit an offense that is a crime involving moral turpitude, or (b) it involves an unlawful entry
into a dwelling. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009).
.
Aggravated felony. To avoid an aggravated felony conviction in a burglary plea, counsel
should obtain a sentence of 364 days or less for any single count. If a sentence of a year or more
is not avoidable, see instructions below and further discussion at § N. 13 Burglary, supra.
Counsel must avoid a plea to entry into a dwelling, but if needed can accept a plea to entry into a
building as long as the entry was not unlawful. The offense must not have been with intent to
commit theft or some other aggravated felony, but “larceny or any felony” is sufficient.
Even if a one-year sentence is imposed in a burglary conviction, the following offenses will
not constitute an aggravated felony:
‣ The burglary is not of a dwelling or its yard. 214 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 record of conviction does not establish intent to commit “larceny” (theft) or any
other offense that itself is an aggravated felony. Instead, the burglary plea can be with
intent to commit “any felony,” or “larceny or any felony,” or a specified offense that is
not an aggravated felony, and
‣ Counsel should keep indications from the record that the entry or any part of the burglary
was effected by violent force. Gaining entry by opening a door or window or using a tool
such as a slim jim to open a window, is not violent force. 215
‣ The record should indicate that the entry or remaining was lawful, or was of a nonbuilding
(e.g. car, yard), or both. Or, leave the record vague on these points.
214 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.
215 See, e.g., discussion in Ye v. INS, 214 F.3d 1128 (9 th Cir. 2000).
Immigrant Legal Resource Center N-135