Criminal Defense of Immigrants


§ 16.13 3. Target Offenses

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Another occasion in which divisible-statute analysis has been said to apply is where the statute in question punishes one act committed in furtherance of another.  The classic example is burglary.[199]  The basic definition of burglary in many jurisdictions is the entry of a building or structure with intent to commit a crime.  The entry itself can be completely lawful, and the intended crime may or may not trigger a ground of removal. 


                The California burglary statute, for example, punishes entry into a building with intent to commit “larceny or any felony.”[200]  Because the statute is written in the disjunctive, it is divisible.  Some target offenses will trigger removal as crimes of moral turpitude, or aggravated felony theft offenses or crimes of violence, while others will not.[201]  Since the statute is divisible, the court is allowed to look to the record of conviction to determine whether the burglary was committed with intent to commit larceny.  If the charge to which a plea was entered is unclear, or specifically states that the burglary was committed with intent to commit “any felony,” the minimum-conduct analysis should apply and the conviction will not trigger removal.


                If the charge of which the noncitizen is convicted specifies the target offense (e.g., “burglary with intent to commit a felony, to wit sexual battery”), it may be difficult to argue that the courts cannot use the “to wit” information to determine that the offense triggers removal.[202]  The key in such cases is that the identity of the specific underlying offense must be required to be proven beyond a reasonable doubt in order to convict.


                Under a strict divisibility analysis, the courts should not otherwise attempt to determine exactly what felony was intended, as that would go beyond the elements of the statute and into the actual facts of the case.  If the state does not  require proof of the underlying offense beyond a reasonable doubt, any “to wit” information should not be used to determine the nature of the offense of conviction.  Unfortunately this rule is not always applied in these types of cases, and the reviewing courts may improperly fail to determine whether proof of the specific underlying offense is required to convict.[203] 

                Matter of Esfandiary[204] is an example of a case in which the BIA went beyond the strict divisible statute analysis.  The court looked to a Florida malicious trespass statute punishing trespass with malicious and mischievous intent.  The court concluded (properly or not) that the statute was divisible.  Apparently reading the conjunctive statute in the disjunctive, the court looked to the record of conviction to determine the specific act that the noncitizen intended to commit, and then made its own decision as to whether the specific act was malicious or mischievous:     


In the present case malicious trespass requires specific intent. That intent is found by looking to the record of conviction. Bisaillon v. Hogan, 257 F.2d 435 (9 Cir. 1958)  cert. denied, 358 U.S. 872 (1958); Matter of N--, 8 I. & N. Dec. 466 (BIA 1959) . . . . The respondent was charged, in an information dated October 14, 1974, with entering without breaking a dwelling with intent to commit a misdemeanor, to wit: petit larceny. Petit larceny is a crime involving moral turpitude. Quilodran-Brau v. Holland, 132 F.Supp. 765 (E.D. Penn. 1955), aff’d 232 F.2d 183 (3 Cir. 1956).


The respondent’s conviction of malicious trespass involves a malicious and mischievous intent. This intent is contained in the information, i.e., the intent to commit petit larceny, a crime involving moral turpitude. We find, therefore, that the respondent’s conviction of malicious trespass is a conviction of a crime involving moral turpitude as that term is used in section 241(a)(4) of the Act.[205]


While the court may have been correct that proof of intent to commit some crime was required to be convicted of the offense, the court failed to determine whether the state required proof of the specific crime intended, making its determination instead on the mere fact of the underlying offense.  See § 16.18, infra.  The court then looked to the fact that the noncitizen intended to commit larceny, and extrapolated from that fact to find that the trespass was done with malicious, rather than mischievous intent.  This analysis did not comport with proper divisibility analysis.


[199] Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971) (Michigan conviction of attempted breaking and entering with intent to commit larceny held a CMT).  See also Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (assault with intent to commit a felony is a CMT only if the intended felony is also a CMT).

[200] Calif. Penal Code § 459 (emphasis supplied).

[201] See, e.g., Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (Washington conviction of accomplice to residential burglary, 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).

[202] See, e.g., Vargas v. DHS, 451 F.3d 1105 (10th Cir. Jun. 21, 2006) (Colorado conviction of contributing to the delinquency of a minor, where the charge read included “to wit . . . unlawful sexual contact,” held an aggravated felony sexual abuse of a minor offense since, while delinquency of a minor “encompasses a multitude of crimes . . . . the specific predicate offense must be charged and proved as an element of the offense . . . .”).

[203] See, e.g., Matter of Beato, 10 I. & N. Dec. 730 (BIA 1964) (second-degree assault with intent to commit a felony involves moral turpitude because the record revealed that the intended felonies were carnal abuse and rape); Matter of Delagadillo, 15 I. & N. Dec. 395, 396-397 (BIA 1975) (“Since the statute defines both crimes which do and crimes which do not involve moral turpitude, we may look to the record of conviction to determine whether moral turpitude inheres in the crime which was actually committed; Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Grazley, 15 I. & N. Dec. 330 (BIA 1973); Matter of M, 9 I. & N. Dec. 132 (BIA 1960); Matter of T, 2 I. & N. Dec. 22 (BIA 1944; AG 1944).”).

[204] Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979).

[205] Ibid.



Second Circuit

Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) (burglary conviction constitutes a crime of moral turpitude only if the target offense the defendant intended to commit when he or she entered the structure itself constituted a CMT), following Matter of M, 2 I. & N. Dec. 721, 723 (BIA 1946) (burglary offenses "may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves moral turpitude.").


In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]" (Emphasis supplied.) The jury instructions establish that the target offense for burglary is not an element under California law. The elements are a question of California law, not federal immigration law. Moncrieffe and Descamps hold that the nature of the offense of conviction is limited to the elements (regardless of what is in the Record of Conviction). Therefore, a conviction of violating Penal Code 459 cannot be a crime of moral turpitude for purposes of deportation. The same rules (minimum conduct analysis and ignoring the facts) also apply to inadmissibility and bars to relief. Therefore, a conviction of burglary also did not trigger inadmissibility at entry. There is some slightly contradictory authority. CalCRIM jury instructions provide: Although actual commission of the underlying theft or felony is not an element of burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144 Cal.Rptr. 330] ; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39 P.3d 432] .) Give all appropriate instructions on theft or the felony alleged. The courts sua sponte duty to instruct on the elements of the target offense, however, is not the same as a requirement that the jury must unanimously agree on the same offense, just that they must all agree that theft or some felony offense or other was committed.