Safe Havens

 

(A)  Definition of the Generic Offense.  The statute explicitly includes as an aggravated felony “a burglary offense for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year . . . .”[324] 

 

            The term “burglary” has been given a definite federal meaning in a related context, a meaning which excludes state convictions under a number of state statutes from the federal definition.  Many burglary convictions will not be considered aggravated felony convictions, even if a sentence of one year or more is imposed. “[T]he term ‘burglary,’ as used in INA § 101(a)(43)(G),  8 U.S.C. § 1101(a)(43)(G), has a uniform definition independent of the labels used by state codes . . . -- the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[325]

            The elements of this ground of deportation are therefore:

 

            (1)  a conviction of

            (2)  unlawful or unprivileged

            (3)  entry into, or remaining in,

            (4)  a building or structure

            (5)  with intent to commit a crime

            (6)  with a sentence of one year or more.

 

If any of these elements is missing from the statute of conviction, or if the record of conviction is unclear whether the defendant was actually convicted of that element, the conviction cannot trigger deportation under this ground.  Because the Supreme Court has issued this definition, the BIA and all circuits must follow its guidance on this point.

            The Supreme Court decision in Taylor v. United States provides an important model for creating and using a generic definition of an offense.[326]   There the court overturned a lower court’s ruling that conviction of any state offense bearing the title “burglary” should qualify as a prior conviction of burglary, for purposes of triggering an enhanced federal criminal sentence under 18 U.S.C. § 924(e).[327]  It noted that states had widely different definitions of burglary.  As an example it pointed to California’s definition of burglary as being defined so “broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile,” whereas burglary traditionally referred only to buildings.[328]   The court did not want federal defendants receiving different sentences based on the vagaries of such disparate state laws.[329]

            The court ruled that, given that the sentence enhancement provision itself offered no definition of burglary, it was necessary to adopt a uniform, “generic” federal definition of burglary for this purpose.  To do this, the court looked at several sources.  It considered using the common-law meaning, but found that in the case of burglary most states had decided to define the offense much more broadly than the original definition.[330]  The court went on to consult the Model Penal Code and basic hornbooks on criminal law.[331]  Deciding that “Congress meant by ‘burglary’ the generic sense in which the term is now used in most States’ criminal codes,”[332] the court derived a generic definition of burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”[333]  

            Under the generic Taylor definition, burglary of a building under statutes such as Calif. Penal Code § 459 [334] has been held to constitute “burglary.” 

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

[325] 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))(emphasis supplied); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. Aug. 12, 2001).

[326] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990) (holding that a state conviction for burglary only constitutes such an offense for purposes of 18 U.S.C. § 924(e), when the offense’s statutory definition substantially corresponds to the generic federal definition).

[327] 18 U.S.C. § 922(e)(2)(B)(ii) provides a sentence enhancement for a person convicted of a violent felony, and specifically defines violent felony to include “burglary.”

[328] Taylor, supra, 495 U.S. at 591, 110 S.Ct. at 2154; United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington residential burglary, Wash. Rev. Code § 9A.52.025(1), not a “burglary of a dwelling” crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since state statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context).

[329] The court stated: “Thus, a person imprudent enough to shoplift or steal from an automobile in California would be found . . . to have committed a burglary constituting a “violent felony” for enhancement purposes — yet a person who did so in Michigan might not.  Without a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress’ omission of a definition of “burglary” in a way that leads to odd results of this kind.”  See Dickerson v. New Banner Institute, Inc. 460 U.S. 103, 119-120, 103 S. Ct. 986 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, “Because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control”); United State v. Turley, 352 U.S. 407, 411, 77 S. Ct. 397 (1957) (“In the absence of plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law”).

[330] The court noted that using common-law meaning “has some appeal, in that common-law burglary is the core, or common denominator, of the contemporary usage of the term . . . . The problem with this view is that the contemporary understanding of “burglary” has diverged a long way from its common-law roots. . . . This court has declined to follow any rule that a statutory term is to be given its common-law meaning, when that meaning is obsolete or inconsistent with the statute’s purpose. . . .”  Ibid., 495 U.S. at 592-593, 110 S.Ct. at 2155-56.

[331] The Court consulted LaFave & Scott, substantive criminal law, § 8.13 (1986), as a source for summarizing the law of several states; Blackstone, commentaries as a source of common law; and the Model Penal Code.

[332] Taylor, supra, 110 S.Ct. at 2147.

[333] Id. at 2158.

[334] Calif. Penal Code § 459 provides: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in § 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of § 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in § 635 of the Vehicle Code, any house car, as defined in § 362 of the Vehicle Code, inhabited camper, as defined in § 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by § 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.”