quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
entry “on” the structure or include both the “in or on” language in the plea; and 4) plead to entry of a
“fenced commercial yard” or “fenced commercial or residential yard.”
A2. Auto burglary in general is not AF burglary because it does not involve wrongful entry of a
structure. Ye v INS, 214 F.3d 1128 (9th Cir. 2000). Therefore this section is not an aggravated felony as
burglary. If the entry was of a locked vehicle with an underlying intent to commit theft, however, it may
be removable as an aggravated felony for attempted theft with a sentence of 365 days or more. Ngaeth v.
Mukasey, 545 F.3d 796, 802 (9th Cir. 2008). Counsel should avoid references in the plea to a locked
vehicle and an intent to commit theft.
Explanation; AF as Attempted Theft. Conviction of an attempt to commit an offense involving
theft is an aggravated felony if a sentence of one year or more is imposed. The Ninth Circuit has held that
a conviction for entering a locked vehicle with the intent to commit theft constitutes an aggravated felony
if the sentence is 365 days or more. Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008). Therefore, a
plea to A2 in which the underlying intent involved theft would likely be an aggravated felony. Defense
counsel should keep the record of conviction clear of what the intended crime was, i.e., plead to “theft or
any felony” in the disjunctive, or to “any felony.” Immigration counsel can point to Ninth Circuit
decisions holding that Arizona theft is broader than the generic definition of theft, and even if the record
of conviction reveals that defendant intended to commit “any theft” it is unclear whether it was theft of
services or theft of property, or whether any intent to deprive the owner was involved.
AF as a Crime of Violence:
A1. Felony burglary of a residence is a crime of violence because of the inherent risk that the
burglar will encounter one of its lawful occupants and force will be used. United States v. Becker, 919
F.2d 568 (9th Cir. 1990); Lopez–Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011); United States v.
Ramos-Medina, 682 F.3d 852, 855 (9th Cir. 2012). Burglary of even a residential yard similarly may be
held a crime of violence. James v. United States, 127 S.Ct. 1586, 1589 (2007). However, immigration
counsel have arguments that burglary of a fenced residential yard under Arizona law is not categorically a
crime of violence since the definition of “residential structure” under ARS § 13-1501(11) includes
structures that are not occupied, i.e. that do not have tenants or homeowners residing there. See U.S. v.
Martinez-Martinez, 468 F.3d 604 (9th Cir. 2006) (holding that discharging a firearm at a residential
structure under ARS § 13-1211 is not categorically a crime of violence since the structure need not be
occupied under the statute in order to be defined as “residential”). If burglary of an unoccupied residence
is not a crime of violence, then the same should hold true for burglary of a fenced yard of an unoccupied
residence. However, defense counsel can create additional safeguards by pleading to either burglary of a
“nonresidential structure or a fenced commercial or residential yard” or “a fenced commercial yard.”
A2. Auto burglary is not a crime of violence as long as the record of conviction does not establish
that actual violence was used, e.g. does not establish that the car window was smashed, as opposed to
found open. Ye v. INS, supra.
Domestic Violence: Where felony burglary is a crime of violence and there is a DV type victim,
it is possible that it will be held a domestic violence offense triggering deportation. Counsel should avoid
a reference to § 13-3601and keep the record of conviction from identifying the domestic relationship.
However, immigration counsel have a strong argument that only crimes against persons, not property,
qualify as deportable domestic violence offenses.
Burglary in the Second Degree, ARS §13-1507
A. A person commits burglary in the second degree by entering or remaining unlawfully in or on a
residential structure with the intent to commit any theft or any felony therein.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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