(B)  Crimes of Moral Turpitude.[123]

 

Where burglary is defined as entry with intent to commit theft or any felony, the statute is considered divisible.[124]  Where the entry is made with the intent to commit theft, the burglary conviction would be a CMT.  Where the entry is committed for the purpose of committing a non-theft offense that involves CMT, the burglary conviction would be CMT.  Where, however, the burglary is committed for the purpose of committing a non-CMT offense, the burglary conviction is not considered a CMT.  Finally, where the record of conviction does not establish whether the offense intended to be committed upon entry was a CMT offense or not, then the burglary conviction would not be considered a CMT for deportation purposes, since the DHS bears the burden of proving that the conviction falls within the ground of deportation.

 

Unlawfully entering a building under circumstances or in a manner not amounting to burglary, with intent to commit a felony, a larceny, or any malicious mischief has been held to be a crime of moral turpitude.[125]  Breaking and entering or unlawful entry do not involve moral turpitude, however, where the intent to commit a crime involving moral turpitude (e.g., murder, burglary, rape) is not an essential element of the offense.  Where the record of conviction did not establish the identity of the specific crime the defendant intended to commit by breaking and entering, the conviction will not involve moral turpitude.

(1)    Board of Immigration Appeals:

 

Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction of “violation of domicile” did not involve moral turpitude, where it was defined as including anyone who “arbitrarily introduces himself into, or remains in, another person’s dwelling, or the appurtenances of the same, against the express wish of the individual who has the right to exclude him, or introduces himself therein or remains there secretly or by fraud,” since mens rea and criminal intent were not essential elements required for conviction).

 

Matter of S, 6 I. & N. Dec. 769 (BIA 1955) (conviction of possession of burglary tools (with intent to commit any indictable offense) in violation of Canada Criminal Code § 464(b) is not a crime involving moral turpitude unless accompanied by an intent to use the tools to commit a specific crime which is itself a crime involving moral turpitude, since here, the record of conviction omits any reference to the offense intended, the conviction could not be held to involve moral turpitude).

 

Matter of P, 2 I. & N. Dec. 887 (BIA 1947) (conviction of breaking and entering and theft, committed as a single offense in violation of Canada Criminal Code § 458(a), will not be deemed to involve moral turpitude, when there is affirmative evidence showing that the “theft” did not involve a permanent taking).

Matter of M, 2 I. & N. Dec. 721 (BIA 1946) (conviction of third-degree burglary, in violation of New York Penal Law § 404, is not deemed to be an offense involving moral turpitude, where the conviction record does not indicate the particular crime that accompanied the breaking and entering, since the determinative factor is whether the crime intended to be committed at the time of entry or prior to breaking out involves moral turpitude).

 

Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (conviction of breaking and entering with intent to commit an indictable offense in violation of Canada Criminal Code § 461 is not shown to involve moral turpitude where the offense intended is not shown to involve moral turpitude).

 

Matter of G, 1 I. & N. Dec. 403 (BIA 1943) (entering a building in violation of New York Penal Law § 405, as amended September 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude).

 

District Courts:

 

Petition of Knight, 122 F.Supp. 322 (D.N.Y. 1954) (New York misdemeanor conviction of unlawful entry held not to be a crime involving moral turpitude).

 

Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) (conviction of possession of burglary tools with intent to commit a crime, in violation of New York Penal Law § 408, does not involve moral turpitude unless the record of conviction affirmatively shows that the particular crime the noncitizen intended to commit with the burglary tools found in his possession involves moral turpitude).

[123] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.51 (2005).

[124] Without analysis, the State Department has stated that “burglary” involves moral turpitude. 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(3).  This cannot, however, be taken as contradicting the more detailed analysis the courts have undertaken to determine whether some convictions under a divisible statute involve moral turpitude, while others do not.  See § 7.1, supra.

[125] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 3, n.11 (1975).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " BURGLARY
Descamps v. United States, ___ U.S. ___, ___ (Jun. 20, 2013) (California conviction of burglary, in violation of Penal Code 459 (entry without requiring unlawful entry with intent to commit theft or any felony), is overbroad with respect to the generic federal definition of burglary, for purposes of federal sentence enhancement under the ACCA for a prior burglary conviction, because generic unlawful entry is never an element of 459, a conviction under that statute is never for generic burglary.).

AGGRAVATED FELONY - BURGLARY - BURGLARY
United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 (California conviction for first-degree residential burglary, in violation of Penal Code 459, could not categorically constitute a crime of violence (burglary of a dwelling) under USSG 2L1.2(b)(1)(A), cmt. n. 1(B)(iii), so as to warrant 16-level enhancement of sentence for illegal reentry, because the California offense encompasses a broader range of proscribed conduct than does the generic offense of the Guidelines since it does not require that the entry be "unlawful or unprivileged" as the federal definition does), following United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE BURGLARY
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Constante, 544 F.3d 584 (5th Cir. Oct. 6, 2008) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3) [enters a building or habitation and commits or attempts to commit a felony, theft, or an assault] did not constitute a crime of violence for ACCA purposes where statute of conviction does not require specific intent).

AGGRAVATED FELONY - BURGLARY
United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (California conviction for burglary, in violation of Penal Code 459, was not a "burglary of a dwelling" for illegal re-entry sentencing purposes because the California statute may be committed without an "unlawful or unprivileged" entry), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007).

AGGRAVATED FELONY - BURGLARY - UNLAWFUL ENTRY REQUIREMENT
United States v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. Feb. 1, 2008) (California conviction for violation of Penal Code 459 is not categorically a crime of violence for illegal-reentry sentencing purposes, because the state statute does not require as an element that the entry be unlawful [i.e. without consent]), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007) (California conviction under Penal Code 459 for residential burglary does not constitute a crime of violence for purposes of U.S.S.G. 2L1.2(b)(1)(A)).

AGGRAVATED FELONY - BURGLARY
United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. Jun. 25, 2007) (Tennessee conviction of burglary of a dwelling, in violation of Tenn. Code Ann. 39-14-403, is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the statute of conviction punishes burglary where the intent to commit the crime was not formed until after the actor unlawfully enters or remains in a dwelling).

AGGRAVATED FELONY - BURGLARY - FLORIDA BURGLARY NOT AN AGGRAVATED FELONY
United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute 810.02(3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( "burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), for purposes of imposing a 16-level enhancement to a sentence for illegal reentry after deportation, since the "ordinary, contemporary, common meaning" of "burglary of a dwelling" does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself), citing United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005) (Texas conviction of burglary of a habitation, in violation of Texas Penal Code 30.02, "is equivalent to the enumerated [crime of violence] offense of burglary of a dwelling"); cf. James v. United States, 550 U.S. ___, 127 S.Ct. 1586, ___ (2007), slip op. at 18 ("We agree that the inclusion of curtilage takes Florida's underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure. ") (emphasis in original), citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Ninth Circuit

AGGRAVATED FELONY " BURGLARY " BURGLARY OF A DWELLING
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (Utah conviction of second-degree burglary of a dwelling, under Utah Code Ann. 76"6"202(2), did not categorically constitute a burglary of a dwelling crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) & n.1(B)(iii), because Utah law defined dwelling more broadly than it is defined in the federal Guidelines definition of burglary of a dwelling); following United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation; courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling.; A non-building adapted for accommodation"e.g., a vehicle or boat"may still qualify as a dwelling under the Guidelines, but it does not do so categorically.).

AGGRAVATED FELONY " BURGLARY " BURGLARY
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011) (en banc) (California conviction of burglary, under Penal Code 459, does not qualify as a generic burglary conviction for illegal re-entry sentencing purposes, even if the defendant pleaded guilty to entering a building unlawfully or a jury found the defendant guilty as charged in an indictment reciting that allegation, since the California definition of unlawful entry includes a licensed or privileged entry into a building with intent to commit a crime, where the generic definition of burglary requires that the entry itself be unlicensed or unprivileged).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

CRIMES OF MORAL TURPITUDE " BURGLARY " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute a crime of moral turpitude under the categorical or modified categorical analysis: To hold otherwise would mean that someone who did what Hernandez- Cruz admitted doing"walking into a commercial building with the intent to commit larceny"but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT.).

AGGRAVATED FELONY - BURGLARY
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (Oregon conviction of second-degree burglary, in violation of Or.Rev.Stat. 164.215(1), is not a categorical burglary for purposes of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), to apply a sentence enhancement requiring a minimum of 180 months in prison, because it encompasses burglary of non-buildings, and therefore falls outside the federal definition of generic burglary), overruling United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990) (Oregon conviction of second-degree burglary is a categorical burglary under Taylor v. United States, 495 U.S. 575 (1990), for purposes of applying the Armed Career Criminal Act).

CRIME OF MORAL TURPITUDE - BURGLARY - NOT CATEGORICALLY A CMT
Cuevas-Gaspar v. Ashcroft, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (Washington conviction of accomplice to residential burglary, under in violation of Washington Revised Code 9A.52.025(1), 9A.08.020(3) ["A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle" with intent to commit any crime], did not constitute crime involving moral turpitude under categorical approach for removal purposes because it encompasses conduct that does not necessarily involve moral turpitude).

CRIME OF MORAL TURPITUDE - BURGLARY - ACCOMPLICE TO RESIDENTIAL BURGLARY NOT INHERENTLY A CRIME OF MORAL TURPITUDE SINCE STATUTE DOES NOT SPECIFY CRIME INTENDED
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (Washington conviction of being an accomplice to residential burglary, in violation of Wash. Rev. Code 9A.52.025(1), 9A.08.020(3), defined as one who "enters or remains unlawfully in a dwelling" with an "intent to commit a crime," did not necessarily constitute crime of moral turpitude under categorical analysis, since the offense of burglary encompasses some conduct that does not qualify as a crime of moral turpitude, because "the act of entering is not itself "base, vile or depraved," and that it is the particular crime that accompanies the act of entry that determines whether the offense is one involving moral turpitude. See Matter of M, 2 I. & N. Dec. at 723. Because, under Washington law, an intent to commit any crime satisfies the accompanying crime element of burglary, the offense encompasses conduct that falls outside the definition of a crime of moral turpitude.").
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