Safe Havens

Congress included a “burglary offense” within the definition of aggravated felony if a sentence of one year or more is imposed. [319]  The United States Supreme Court has defined “burglary” for this purpose as “the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[320]  Therefore, all circuits as well as the BIA are bound by this definition.  See § 7.37(A), infra.  Divisible statute analysis suggests a number of valuable safe havens with respect to this offense.  See § 7.37(B), infra.  In particular, the definition requires that the offense must have, as an essential element, an unlawful or unprivileged entry, and any conviction that does not, or where the record of conviction does not establish that this element was present, will constitute a safe haven.  See § 7.37(C), infra.  Similarly, the burglary must be of a building or structure to fall within the federal definition, as opposed to a vehicle or something else that is not a structure.  See § 7.37(D), infra.  If it is not, or if the record does not establish whether or not the defendant entered a structure, the conviction is a safe haven.  There is also a requirement that the defendant must have “intent to commit a crime.”[321]  If this intent is absent, or if the record is unclear whether it exists, the conviction is a safe haven.  See § 7.37(E), infra.

            Safe havens related to sentence are discussed in § 7.37(F), infra, and other safe havens in § 7.37(G), infra.

            Burglary convictions might be considered to be aggravated felonies under at least two other categories aside from the “burglary offense” category discussed in this section: 

            (1)  As a “theft offense” if a sentence of one year or more is imposed.[322]  See § 7.103, infra. 

            (2)  As a “crime of violence” if a sentence of one year or more is imposed.[323]  See § 7.52, infra.

In addition, burglary convictions may fall within the crime of moral turpitude ground of deportation.  See § § 7.120-7.121, 9.33, infra.

[319] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[320] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (adopting definition of burglary from Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143 (1990)); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[321] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (adopting definition of burglary from Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143 (1990)); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[322] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[323] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).