(A)

Burglary.[103]  Where burglary is defined as entry with intent to commit theft or any felony, the statute is considered divisible.  See § 7.3, supra.  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 party bearing the burden of proof loses on the CMT question.

 

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), constituted a crime involving moral turpitude under modified categorical approach for removal purposes because noncitizen admitted in signed plea statement to entering a residence with the intent to steal property from the residence);

Ortiz-Salgado v. INS, 120 F.3d 269 (9th Cir. 1997) (Table) (California conviction of second-degree burglary in violation of California Penal Code § 459 is a crime of moral turpitude);

De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (per curiam) (burglary is a crime of moral turpitude);

Baer v. Norene, 79 F.2d 340 (9th Cir. 1935);

Ornelas v. District Director, 1987 U.S. Dist. LEXIS 15934 (D.Colo. 1987);

Tahir v. Lehmann, 171 F.Supp. 589 (D.Ohio 1958), aff’d, 264 F.2d 892 (6th Cir. 1959), cert. den., 361 U.S. 876, 80 S.Ct. 139, 4 L.Ed.2d 114 (1959) (Michigan conviction of burglary, defined as breaking and entering a building in the nighttime with intent to commit larceny, was a crime involving moral turpitude);

Griffo v. McCandless, 28 F.2d 287 (E.D.Pa. 1928);

Matter of Tran, 21 I. & N. Dec. 291, 292 (BIA 1996);

Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (burglary with intent to commit theft is a crime involving moral turpitude);

Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981);

Matter of Leyva, 16 I. & N. Dec. 118 (BIA 1977);

Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974);

Matter of Acosta, 14 I. & N. Dec. 666 (BIA 1974);

Matter of L, 6 I. & N. Dec. 666 (BIA 1955);

Matter of M, 5 I. & N. Dec. 642 (BIA 1954);

Matter of MG, 5 I. & N. Dec. 531 (BIA 1953);

Matter of Z, 5 I. & N. Dec. 383 (BIA 1953) (conviction of burglary, second degree, with intent to commit theft, in violation of California Penal Code § § 459, 460, is a crime involving moral turpitude);

Matter of VT, 2 I. & N. Dec. 213 (BIA 1944) (conviction of second-degree burglary, entering a store with intent to steal, in violation of California Penal Code § 459, is a crime involving moral turpitude);

Matter of R, 1 I. & N. Dec. 540 (BIA 1943) (burglary, third degree in violation of New York Penal Law § 404(1), is a crime involving moral turpitude when the record of conviction shows that the defendant broke and entered a building with intent to commit larceny).

 

But see:

 

Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) (Connecticut conviction for third-degree burglary, in violation of Conn. Gen.Stat. section 53a-103, did not constitute a crime involving moral turpitude within the meaning of INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for immigration purposes; although the IJ and BIA properly concluded that Wala pleaded to a burglary with the intent to commit larceny, it was improper for the BIA to have inferred from the plea colloquy that petitioner intended to commit a larceny offense involving a permanent, rather than a temporary, taking of property; the larceny itself was divisible);

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.");

United States v. Jones, 993 F.2d 58, 61-62 (5th Cir. 1993) (distinguishing between 18 U.S.C. § 2113(a) and (b), where the former requires that an intent to steal exists prior to entry of the bank, while the intent required for (b) may be formed after entry into the bank);

Matter of M, 2 I. & N. Dec. 721 (BIA 1946) (conviction of burglary, third degree, 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).

[103] 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.

BIA

CRIME OF MORAL TURPITUDE - BURGLARY - OCCUPIED DWELLING
Matter of Louissaint, 24 I. & N. Dec. 754 (BIA Mar. 18, 2009) (Florida conviction of burglary of an occupied dwelling, in violation of Florida Statutes 810.02(3)(a), is categorically a conviction for a crime involving moral turpitude, because there is no "realistic probability" that it would be applied to reach conduct that does not involve moral turpitude, and the offense, as defined by its statutory elements is one in which moral turpitude necessarily inheres: "We find . . . that moral turpitude is inherent in the act of burglary of an occupied dwelling itself, and that the respondents unlawful entry into the dwelling of another with the intent to commit any crime therein is a crime involving moral turpitude."), distinguishing Matter of M, 2 I. & N. Dec. 721 (BIA; A.G. 1946).

Ninth Circuit

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.).