BIA Addresses NY Burglary Conviction

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:

https://www.justice.gov/eoir/page/file/1584666/download

BIA Finds that NY Second Degree Burglary is Aggravated Felony

The Board of Immigration Appeals has determined that a New York conviction for second degree burglary matches the generic definition of a burglary aggravated felony “because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.”

The full text of Matter of V-A-K- can be found here:

https://www.justice.gov/eoir/page/file/1526896/download

Ninth Circuit Finds Oregon First Degree Residential Burglary is a Burglary Aggravated Feony

The Ninth Circuit has determined that Oregon’s first-degree residential burglary statute is a categorical match to the definition of a burglary aggravated felony. In so doing, the court rejected the argument that the statute includes entering the curtilage of the building, or that statute’s occupancy requirement is too intermitent.

The full text of Mendoza Garcia v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/20-73583.pdf

Eleventh Circuit Reverses Finding that FL Burglary of an Unoccupied Dwelling is CIMT

The Eleventh Circuit has reversed a finding that a Florida conviction for burglary of an unoccupied dwelling is a crime involving moral turpitude because there is no requirement that the dwelling be intermittently occupied. The court remanded for further analysis by the Board of Immigration Appeals.

The full text of Lauture v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201913165.pdf

Eighth Circuit Finds that MN First Degree Burglary Conviction is a Violent Felony

The Eighth Circuit has determined that the Minnesota first-degree burglary statute is overbroad compared to the definition of a violent felony, but that the subsection criminalizing burglary with assault is a violent felony.

The full text of US v. Fisher can be found here:
https://ecf.ca8.uscourts.gov/opndir/22/02/212151P.pdf

Sixth Circuit Finds TN Burglary to be Overboad

The Sixth Circuit has determined that Tennessee’s first-degree burglary statute is overbroad as compared to the generic definition of burglary because it includes breaking into a container (i.e., a drawer) after a lawful entry.

The full text of Cartwright v. United States can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0203p-06.pdf

Seventh Circuit Finds IL Burglary Statute Indivisible

The Seventh Circuit has determined that Illinois’ burglary statute is indivisible between an intent to commit a felony and a intent to commit theft.

The full text of Parzych v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D06-28/C:20-2317:J:Brennan:aut:T:fnOp:N:2726021:S:0

Ninth Circuit Determines that Oregon Conviction for First-Degree Burglary is CIMT

The Ninth Circuit has concluded that the Oregon statute governing first-degree burglary is overbroad as compared to the generic definition of a crime involving moral turpitude because it proscribes any unlawful entry into any “building,” including a commercial space, with any criminal intent. However, the court determined that the statute is divisible between two distinct crimes: (1) first-degree burglary of a dwelling; and (2) first-degree burglary of a non-dwelling involving an aggravating factor. The court also deferred to Matter of J-G-D-F and found that burglary of a regularly or intermittently occupied dwelling is a crime involving moral turpitude.

The full text of Diaz-Flores v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/06/17-72563.pdf

Eighth Circuit Finds that Arkansas Residential Burglary Qualifies as Generic Burglary

The Eighth Circuit, interpreting Supreme Court precedent, determined that “burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation” qualifies as generic burglary. As such, it reversed its prior precedent and determined that an Arkansas residential burglary conviction, which includes burglary of certain types of vehicles, also matches the definition of generic burglary. Given the similar definitions of generic burglary in the criminal and immigration contexts, this case could have persuasive impact in the immigration context.

The full text of United States v. Sims can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/161233P.pdf

SCOTUS Clarifies Generic Definition of Burglary

The Supreme Court has determined that the generic definition of burglary does not require a defendant to have criminal intent at the first moment that he unlawfully remains in a building, but rather, encompasses offenses where a defendant forms that intent at any time that he is unlawfully remaining the building. As such, Michigan’s third-degree home invasion statute is a match to the generic burglary definition.

The full text of Quarles v. United States can be found here:

https://www.supremecourt.gov/opinions/18pdf/17-778_7li8.pdf

Eighth Circuit finds that Indiana Burglary Matches Generic Burglary Offense

The Eighth Circuit has determined that an Indiana burglary statute matches the federal definition of burglary, even though it includes burglary in outdoor, fenced-in areas.

The full text of Faulkner v. United States can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/06/181984P.pdf

Ninth Circuit finds that NC Conviction for Breaking and Entering is Predicate Felony under ACCA

The Ninth Circuit has determined that a North Carolina conviction for breaking and entering can qualify as a predicate burglary offense under the Armed Career Criminal Act (ACCA). In so doing, the court determined that generic burglary includes burglary of mobile structures customarily used or adapted for overnight accommodation, such as mobile homes. Given the similar definition of a burglary predicate offense under the ACCA and a burglary aggravated felony in the immigration context, this decision could have persuasive impact in immigration cases.

The full text of Mutee v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/04/17-15415.pdf

Eighth Circuit Finds that North Dakota Burglary Statute is not a Violent Felony

The Eighth Circuit has determined that a conviction for burglary in North Dakota (which includes burglary of both vehicles and structures) is overbroad and indivisible with respect to the generic definition of burglary.  As such, it does not qualify as a violent felony under the Armed Career Criminal Act (ACCA).  Given the similar definitions of generic burglary under the ACCA and a burglary aggravated felony, this case could have persuasive value in the immigration context.

The full text of US v. Kinney can be found here:

http://media.ca8.uscourts.gov/opndir/18/04/163764P.pdf

Eighth Circuit Finds that Minnesota Second and Third Degree Burglary are not Violent Felonies

The Eighth Circuit has determined that Minnesota's second- and third-degree burglary statutes are overbroad as compared to the generic definition of burglary because they do not require the defendant to have the intent to commit a crime at the moment of the unprivileged entry.  The court also determined that the statutes are indivisible.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision could have persuasive value in the immigration context.

The full text of United States v. Crumble can be found here:

http://media.ca8.uscourts.gov/opndir/18/01/164308P.pdf

BIA Declines to Apply Res Judicata; Deems MI Conviction for First Degree Home Invasion to be Burglary Aggravated Felony

The Board of Immigration Appeals (Board) has determined that the doctrine of res judicata does not prevent the Department of Homeland Security (DHS) from bringing a new removable proceeding (with a new charge of removability) based on a criminal conviction that did not sustain the charge of removability in a prior proceedings.  In the instant case, the DHS had initially charged the respondent with a conviction for a crime of violence aggravated felony based on a Michigan conviction for first-degree home invasion.  Due to intervening case law regarding the definition of a crime of violence, those proceedings were terminated.  The DHS then re-charged the respondent with a burglary aggravated felony based on the same conviction.  The Board determined that res judicata did not bar the second proceedings, though it also recognized that its decision was in conflict with Ninth Circuit jurisprudence.  The Board also determined that a Michigan conviction for first-degree home invasion is categorically a burglary aggravated felony.

The full text of Matter of Jasso Arangure can be found here:

https://www.justice.gov/eoir/page/file/1021376/download

Eighth Circuit Finds that Illinois Burglary Statute is Broader than Generic Definition of Burglary

The Eighth Circuit has determined that Illinois' burglary statute is overbroad as compared to the generic definition of burglary because the Illinois statute includes burglary of detached semitrailers.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision may have persuasive value in the immigration context.

The full text of United State v. Byas can be found here:

http://media.ca8.uscourts.gov/opndir/17/09/163616P.pdf

Board of Immigration Appeals Finds that Oregon Conviction for Burglary of a Dwelling is a CIMT

The Board of Immigration Appeals (BIA) has determined that an Oregon conviction for burglary of a dwelling is a crime involving moral turpitude, even though it does not require that the burglar intend to commit a morally turpitudinous act after entry.  Instead, the BIA relied on its prior rationale in Matter of Louissant that burglary of a dwelling "tears away the resident’s justifiable expectation of privacy and personal security and invites a violent defensive response from the resident."  Even though the Oregon statute does not require the dwelling to be occupied at the time of the offense, it requires to be intermittently occupied, which the BIA found sufficient to invoke the concerns of Loussaint.

The full text of Matter of J-G-D-F- can be found here:

https://www.justice.gov/eoir/page/file/990986/download

Eighth Circuit finds that Minnesota Burglary Convictions are Crimes of Violence under the Residual Clause of the Sentencing Guidelines

The Eighth Circuit has held that Minnesota convictions for burglary involving a controlled substance, third degree burglary, and aiding and abetting third degree  burglary are crimes of violence under the residual clause of the sentencing guidelines because they create a risk of a violent confrontation between the burglar and the occupant, the police, or another third party, and thus, present a serious potential risk of physical injury to another.  This definition of a crime of violence is similar to the definition in 18 USC 16(b), which is incorporated into the definition of a crime of violence aggravated felony for immigration purposes.  Though some circuits have held 18 USC 16(b) to be unconstitutionally vague, in those circuits that have not done so, this case may be persuasive evidence that these Minnesota convictions are also aggravated felonies for immigration purposes.

The full text of United States v. Benedict can be found here:

http://media.ca8.uscourts.gov/opndir/17/05/143412P.pdf

Fourth Circuit Finds that MD Third Degree Burglary is a CIMT

The Fourth Circuit has determined that a Maryland conviction for third degree burglary qualifies as a crime involving moral turpitude.  "The act of breaking and entering a dwelling, with the intent to commit any crime, necessarily involves conduct that violates an individual’s reasonable expectation that her personal living and sleeping space will remain private and secure." 

The full text of Uribe v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/161427.P.pdf

Eighth Circuit Finds that Arkansas Residential Burglary is not a Violent Felony

The Eighth Circuit has had that an Arkansas conviction for residential burglary does not qualify as a violent felony under the Armed Career Criminal Act (ACCA) because it encompasses the burglary of certain types of vehicles.  The court also found that the statute was indivisible with respect to what type of structure was being burglarized.  Given the similar definition of generic burglary for ACCA purposes and aggravated felony purposes, this decision could have persuasive value in the immigration context.

The full text of US v. Sims can be found here: 

http://media.ca8.uscourts.gov/opndir/17/04/161233P.pdf