The Board of Immigration Appeals (Board) has determined that a New York conviction for second-degree burglary of a building (as opposed to a dwelling) is overbroad when compared to the definition of a burglary aggravated felony because it criminalizes burglaries of inclosed motor trucks. The statute is also invisible with respect to the definition of a building, so any subsection criminalizing burglary of a building will not meet the definition of a burglary aggravated felony.
The conviction also does not qualify as a theft aggravated felony because it only requires the intent to commit a crime, and there is no requirement that a burglar take property or otherwise exercise control of property without consent.
However, the statute is divisible into different subsections, and the subsection criminalizing the display of a firearm during a burglary is a crime of violence aggravated felony because another person must be present to view the display of the weapon, and that person must feel threatened by the display. Thus, the display of the firearm necessarily involves the use, attempted use, or threatened use of physical force.
The analysis pertaining to the crime of violence drew a detailed dissent, attacking the majority’s analysis of New York criminal law.
The full text of Matter of Pougatchev can be found here: