Criminal Defense of Immigrants

(D)  Requirement of a Building or Structure.  The generic burglary definition requires that the burglary be of a “a building or structure.”[362]  Therefore, where the statute of conviction allows conviction for burglary of an automobile, or any other non-structure, the conviction cannot be an aggravated felony burglary offense.[2]

For example, California Penal Code § 459 includes burglary of a “tent, vessel, . . . floating home, . . . railroad car, locked or sealed cargo container, . . . vehicle, . . . or mine . . . .”  If the record of conviction establishes that the burglary was of a car, the offense is not aggravated felony “burglary.”[363]  If the record of conviction does not establish whether the burglary was of a car, a dwelling, or other building, then the government cannot establish that the conviction is aggravated felony burglary.  Thus a noncitizen who might actually have broken into a dwelling should attempt to keep the record of conviction (charging papers, plea or judgment, sentence) clear of reference to what place was entered, so that the government cannot prove that the burglary offense of which s/he was convicted did not involve a car.[364]

[365] Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (emphasis supplied) (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).

[362] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001); Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000) (burglary of a vehicle is not a “burglary offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).  The BIA did not consider the issue of whether auto burglary was a crime of violence.

[363] See, e.g., United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington conviction of residential burglary, Wash. Rev. Code § 9A.52.025(1), not a “burglary of a dwelling” crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since state statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context); United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000); Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); Matter of Perez, 22 I. & N. Dec. 1325 (BIA 2000) (burglary of a vehicle is not a “burglary offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).

[364] See § § 16.15-16.34, supra.