9th Circuit: Vehicle Burglary Not an Aggravated Felony (Ye v. INS)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

9TH CIRCUIT: VEHICLE BURGLARY NOT AN AGGRAVATED FELONY (YE V. INS)
Immigrants’ Rights Update, Vol. 14, No. 4, July 26, 2000

The U.S. Court of Appeals for the Ninth Circuit has ruled that a California conviction for vehicle burglary does not constitute an "aggravated felony" under section 101(a)(43) of the Immigration and Nationality Act because it is neither a "burglary offense" under subsection (G) of that statute, nor a "crime of violence" under subsection (F). The decision comes on a petition for review of a removal order issued by the Board of Immigration Appeals and follows the reasoning employed by the Seventh Circuit in Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) (see "7th Circuit Finds Illinois Burglary Conviction Neither ‘Burglary Offense’ nor ‘Crime of Violence,’" Immigrant’s Rights Update, Apr. 11, 2000, p. 9).

The court first noted that if in fact the petitioner’s crime did constitute an aggravated felony it would not have jurisdiction over the petition for review because section 242(a)(2)(C) of the INA bars such appellate court authority. However, the court observed that it does retain authority to determine whether it has jurisdiction and whether in fact the conviction constitutes an aggravated felony.

The court concluded that the term "burglary" in subsection (G) should not be construed to encompass burglary of a vehicle. This interpretation accords with that made by the U.S. Supreme Court when, in Taylor v. U.S., 495 U.S. 575 (1990), it considered another federal statute that uses the term "burglary." (Indeed, since the BIA ruled in this case, even it has agreed that the term "burglary" in the aggravated felony definition should not be construed to include vehicle burglary. See "BIA: Texas Crime of Vehicle Burglary Not a ‘Burglary Offense’ Aggravated Felony," p. 3, which discusses Matter of Perez, Int. Dec. 3432 (BIA 2000)).

The Ninth Circuit found that vehicle burglary is not a "crime of violence" under subsection (F) because the use of force is not an element of the offense, nor is the offense such that by its nature it involves a substantial risk that physical force will be used. The court agreed with the Seventh Circuit in rejecting the INS’s contention that vehicle burglary should be considered a crime of violence because the offense will almost always require some use of force, such as breaking a window or forcing open a lock. As the Seventh Circuit stated, "[T]he force necessary to constitute a crime of violence . . . must actually be violent in nature." Solarzano-Patlan, 207 F.3d at 875 n.10. There are in fact various ways in which vehicle burglary can be committed with no use of violent force, including entering through an open window, using a stolen key, or using a "slim jim."

Because the conviction is not an aggravated felony, the court concluded that it has jurisdiction over the petition for review and found that the BIA erred in ordering that the respondent be removed based on the conviction.

Ye v. INS, __ F.3d __, No. 98-70784 (9th Cir. June 9, 2000).