A burglary conviction certainly may qualify as an aggravated felony burglary offense, a crime of violence, or an attempted theft offense, and may also qualify as a crime of moral turpitude.  However, a properly worded burglary conviction, where the noncitizen defendant enters a plea only to “entry of a building with intent to commit theft or any felony”[176] is a safe haven from deportability, since such a conviction is not an aggravated felony or a crime of moral turpitude. 

 

“[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.”[177]  Thus, to constitute a burglary aggravated felony, the burglary must involve an “unlawful or unprivileged entry.  If the noncitizen defendant enters a guilty plea only to “entry” of a building, the ‘unlawful or unprivileged’ element of the aggravated felony burglary definition has not been met.[178]  As long as the plea is not made to “residential burglary,” the conviction should not constitute a crime of violence,[179] and as long as the plea contains the language “or any felony,” the conviction cannot qualify as an attempted theft offense, since the government cannot sustain the burden of proof that the offense intended was a theft offense rather than an unspecified other felony offense.  See § § 7.37, 8.38, supra. 

 

            Likewise, a plea to “entry of a building with intent to commit theft or any felony” cannot constitute a crime of moral turpitude, where the government bears the burden of proof, since the government cannot show that the plea was to conduct that, at its minimum, involves moral turpitude.[180]  See § § 7.120, 8.38, supra.

Under the language of this plea, the defendant could have entered a drinking establishment intending to streak before its patrons.  There is nothing unlawful about the entry, since the place entered is open to the public, and so is not aggravated felony “burglary.”[181]  There is no element of violence or inherent substantial risk that the defendant will commit violence in the course of commission of this offense, so the offense cannot constitute an aggravated felony crime of violence.[182]  And because there is no intent to commit theft in this act, or otherwise commit a crime of moral turpitude, the plea cannot constitute an attempted theft, or a CMT conviction.

 

Warning:  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.[183]  On the other hand, the “and” is surplusage, since only one intent or the other is required as an essential element of the offense.  The Ninth Circuit has held that surplusage such as this does not form part of the record of conviction for purposes of determining the nature of the offense of conviction.[184]  The BIA and other circuits agree.  Allegations in the charge of conviction that are not essential elements of the offense are regarded as “surplusage,” and not as part of the nature of the offense of conviction.[185]  For example, archaic boilerplate will not be considered as becoming part of the facts of the case.

The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.[186]

 

Thus, surplusage in the charge will not be considered as part of the record of conviction.  Surplusage also includes allegations that go beyond the elements of the crime as defined by statute.[187]

 

A plea to simply “entry to a building to commit any felony,” omitting theft completely, is an even better option.  Alternatively, the defendant could safely plead guilty to entry into a building to commit a specified act, as long as that act does not, in itself, trigger a ground of deportability.

 

[176] See e.g., California Penal Code § 459.

[177] 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).

[178] United States v. Parker, 5 F.3d 1322, 1325 (9th Cir. 1993) (holding that information charging burglary did not satisfy Taylor because of failure to allege “unlawful or unprivileged” entry).

[179] Traditionally, burglary of a dwelling has been so held, because of the danger that the owners would surprise the burglar and violence would ensue.  See, e.g. United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990).  But see United States v. Matthews, 374 F.3d 872 (9th Cir. July 7, 2004) (conviction of burglary of an occupied building did not constitute a crime of violence under U.S.S.G. § 4B1.2(a)(2), where the parties agreed the term “occupied” did not require a person’s actual physical presence).

[180] See, e.g., 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).

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

[182] 18 U.S.C. § 16(b) provides that a felony that by its nature involves a substantial risk that the defendant will use violence in the commission of the offense is a crime of violence. 

[183] 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).

[184] Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962).

[185] Matter of Lethbridge, 11 I. & N. Dec. 444, 445, (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”); Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).

[186] Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996).

[187] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).

Lower Courts of Ninth Circuit

SAFE HAVENS - CALIFORNIA - BURGLARY - ENTRY WITH INTENT TO COMMIT COMPUTER CRIME
People v. Wilkinson, 163 Cal.App.4th 1554 (Cal.App. 3 Dist. Jun.18, 2008) (California case prosecuting defendant for violation of Penal Code 459, burglary, where defendant entered into bedroom of roommate to download images from roommates computer).