Safe Havens

(E)  Requirement of Intent to Commit a Crime.  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.”[349]  This is a very broad intent requirement, and it is difficult to imagine a state conviction that does not contain this element.  The noncitizen should attempt to plead to an entry with intent to commit “any felony” or “grand or petit larceny or any felony.”  The charging papers, plea or judgment, and sentence constitute the record of conviction.  See § § 4.13, et seq., supra.  They should not be allowed to contain evidence of intent to commit larceny, because of the danger that a court might hold that this would constitute attempted theft and thus be an aggravated felony under the “theft” category, or that this conviction would be considered a crime of moral turpitude and trigger deportation under that ground.  If the charge is phrased in the conjunctive, for example, a burglary charge alleges entry with intent to commit theft and any felony, a plea to the count as charged may be taken as an admission of both the intent to commit theft and the intent to commit any felony.[350]  On the other hand, the “and” is surplusage, since only one intent or the other is required as an essential element of the offense.

[349] 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).

[350] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2001) (conviction for second-degree burglary constituted an aggravated felony for purposes of enhancing the sentence for illegal re-entry, since by pleading guilty to Count One of the Information, Velasco-Medina admitted the facts alleged therein, which were sufficient to establish the unlawful entry into a structure with intent to commit larceny and any felony necessary to establish aggravated felony burglary); United States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995); United States v. Dunn, 946 F.2d 615, 620 (9th Cir. 1991); United States v. O’Neal, 937 F.2d 1369, 1373-74 (9th Cir. 1991), overruled on other grounds by United States v. Sahakian, 965 F.2d 740 (9th Cir. 1992).  See also United States v. Franklin, 235 F.3d 1165, 1170 (9th Cir. 2000) (noting that document charging that Franklin “did willfully and unlawfully enter . . . with the intent to commit larceny” satisfied Taylor).