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