Safe Havens

A number of courts have held that burglary of an automobile does  not constitute “burglary” for purposes of the aggravated felony definition,[188] holding that auto burglary does not fit the generic federal definition of burglary, which involves wrongful entry of a structure, not a car.[189]  See § § 7.37, 8.38, supra.

            The Ninth Circuit has also found that auto burglary could not be considered an aggravated felony crime of violence, because while a residential burglar may well unexpectedly encounter people inside a house, the interiors of cars are visible from the outside, and there is little risk that the burglar will stumble upon the occupant.[190]  The court also dismissed the INS’ argument that the burglar must use force upon the locked car in order to enter the vehicle.  The Ninth Circuit stated that “the force necessary to constitute a crime of violence must actually be violent in nature,” and noted that a person could be found guilty of auto burglary who had entered by using a stolen or borrowed key or going through an open window.[4]

            As with burglary, a plea to “entry into an automobile with intent to commit theft or any felony” should be effective to avoid deportability under an attempted theft aggravated felony theory, or for a conviction of a crime of moral turpitude.  See 9.33, supra.

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

[188] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000); Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000); see also Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 2154 (1990).

[189] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).

[190] The court stated: “We find these arguments unpersuasive.  Like the Seventh Circuit, we believe that ‘the force necessary to constitute a crime of violence must actually be violent in nature.’  Solorzano-Patlan, 207 F.3d at 875, n.10.  And under [Calif. Penal Code § 459], there are numerous ways a person can commit vehicle burglary short of using violent physical force.  He can enter a car through an open window, by means of a stolen key, or with the aid of a “slim jim.”  [Citation omitted].  Moreover, because § 459 does not require an unprivileged or unlawful entry into the vehicle [Citation omitted], a person can commit vehicle burglary by borrowing the keys of another person’s car and then stealing the car radio once inside.” Ye v. INS, 214 F.3d at 1133-1134.