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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
California Quick Reference Chart and Notes February 2010 Crime involving moral turpitude. Burglary is a crime involving moral turpitude to the extent of the underlying intent. Entry with intent to commit larceny involves moral turpitude, while entry with intent to a specified offense that does not involve moral turpitude (or, assuming the government has the burden of proof, an unspecified offense) is not. Under Matter of Silva- Trevino, however, it may be difficult to ensure that a given offense does not involve moral turpitude. In addition, burglary will be held a crime involving moral turpitude if it involves an unlawful entry into a dwelling. 4. Theft instead of fraud, and other measures to avoid the aggravated felony of an offense involving fraud or deceit in which the loss to the victim exceeds $10,000. A fraud or tax fraud offense in which the loss to the victims/government is more than $10,000 is an aggravated felony under 8 USC § 1101(a)(43)(M). In 2009 the Supreme Court expanded the kind of evidence that can be used to establish the amount of loss to the victim, although it found that the categorical approach must be used to establish that the offense involved fraud or deceit. Nijhawan v. Holder, 129 S. Ct. 2294 (2009). The most secure plea option is to an offense that does not involve fraud or deceit, for example, to theft under P.C. § 484. This means specifically to a theft offense, or at least to § 484 in general; not to embezzlement, fraud or other theft by deceit in § 484. A theft offense will become an aggravated felony if a sentence of a year or more is imposed, but not based upon a loss to the victim of over $10,000. Therefore a plea to a theft offense under § 484 can include restitution to the victim of over $10,000, but the sentence imposed must be 364 days or less for any single count. If you must plead to an offense involving fraud or deceit (and deceit is broadly defined), or to welfare fraud, see additional advice at N. 13 Fraud, supra. See also Brady, “Preliminary Advisory: Nijhawan v. Holder” at www.ilrc.org/criminal.php. For the Defendant: A conviction for a fraud or deceit offense in which the loss to the victim or victims was over $10,000 is an aggravated felony. A theft offense under P.C. § 484 is not an offense involving fraud or deceit. Therefore proof of a loss to the victim/s exceeding $10,000 does not make the offense an aggravated felony. Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008). 5. Receipt of Stolen Property is not categorically a crimes involving moral turpitude A conviction for receipt of stolen property under P.C. § 496(a) is a categorical aggravated felony conviction if a sentence of a year or more is imposed. 216 However, the offense is divisible as a crime involving moral turpitude. 216 Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009), Verduga-Gonzalez v.Holder, 581 F.3d 1059 (9 th Cir. 2009). N-136 Immigrant Legal Resource Center
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