The decision comes in the case of an unrepresented respondent who was convicted under Texas Penal Code section 30.04(a), which prohibits breaking into or entering a vehicle with intent to commit any felony or theft.  Subsequently the Immigration and Naturalization Service initiated removal proceedings against the respondent and charged him with being removable because of an aggravated felony conviction.  The immigration judge found that the state conviction constituted a burglary offense within the meaning of INA section 101(a)(43)(G) and ordered that the respondent be removed.

On appeal, the BIA noted that neither the pro se respondent nor the INS had presented any legal argument as to whether the state conviction is encompassed within the burglary offense category.  Since the INA does not define a "burglary offense," the BIA found that the "logical starting point" for arriving at a definition is the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990).

Taylor concerned a federal statute that provided for sentence enhancement for burglary convictions and which similarly did not define the term "burglary."  The BIA noted that in interpreting this statute, the Court "rejected the notion that Congress intended burglary to mean whatever offense has been labeled as burglary by the state in which the conviction occurred," or that "burglary" should be presumed to have its "common-law meaning."  Instead, the Court "adopted a generic definition that embodied the modern use of the term ["burglary"] in most state criminal codes and approximated the usage in the Model Penal Code."  An essential element of this definition is the entry into, or remaining in, a "building or other structure" with the intent to commit a crime.

Without attempting to determine the precise scope of the term "burglary offense" contained in INA section 101(a)(43)(G), the BIA concluded that it does not encompass burglary of a vehicle.  The BIA reasoned that to hold otherwise would be inconsistent with the common-law usage of "burglary," the generic federal definition in Taylor, the Model Penal Code, and many state statutes.  The BIA also noted that two federal courts of appeals have adopted the Taylor definition in interpreting section 101(a)(43)(G).  Lopez-Elias v. Reno, No. 99-60757, 2000 WL 381459 (5th Cir. May 1, 2000); Solarzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) (for more information, see "7th Circuit Finds Illinois Burglary Conviction Neither ‘Burglary Offense’ nor ‘Crime of Violence,’" Immigrants’ Rights Update, Apr. 11, 2000, p. 9).

Accordingly, the BIA sustained the appeal and terminated the removal proceedings.