Burglary

BRIEF EXCERPT

A. A conviction under Cal. Pen. C. §§459-460(b) is categorically not a conviction for an aggravated felony because the statute of conviction lacks the essential elements of required to sustain a conviction under a generic definition of burglary.

Burglary under Cal. Pen. C. §459 is not an aggravated felony under INA §101(a)(43)(G). This section defines as an aggravated felony, "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least 1 year." However, in order for a state court offense to qualify as a burglary offense under this statute, the state statute must contain all of the elements in the generic definition of burglary. Sareang Ye v. I.N.S. , 214 F.3d 1128 (9 th Cir., 2000). The generic definition of burglary was held by the U.S. Supreme Court to be the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Taylor v. US, 495 U.S. 575, 598-599 (1990).

The 9 th Circuit has specifically found that absent the element of an unlawful or unprivileged entry, Cal. Pen. C. §459 does not define an aggravated felony pursuant to INA §101(a)(43)(G). This missing element in the California statute was noted in United States v. Parker, 5 F.3d 1322, 1325 (9th Cir. Sept. 28, 1993). In Parker, Supra, as well as in Ye, Supra, the courts proceeded to apply the modified categorical approach to ascertain from the certified record of conviction whether the conviction included this element.

However in Kawashima v. Mukasey, 530 F.3d 1111, 1116 (9th Cir. 2008) overruled on other grounds by Nijhawan v.Holder, 129 S. Ct. 2294 (2009), the Circuit Court noted that when a state statute is missing an entire element necessary for the aggravated felony definition, it is categorically not an aggravated felony and thus it would have been error to apply the modified categorical approach. Kawashima overruled that portion of the Parker case which applied the modified categorical approach by holding, "Nevertheless, Navarro-Lopez's statement that the modified categorical approach never applies when 'the crime of conviction is missing an element of the generic crime altogether,' 503 F.3d at 1073, is plain and clear. And, because such statement is irreconcilable with our precedents that have held otherwise, we must conclude that they have been impliedly overruled."

Because "the modified categorical approach never applies when the crime of conviction is missing an element of the generic crime altogether" it would be improper to look to the certified record of conviction to ascertain what conduct can be proved therefrom. The analysis is over as soon as it is determined that an element of the generic offense is absent from the statute.

The Supreme Court actually endorsed this analysis even while overruling Kawashima. In Nijhawan v.Holder, 129 S. Ct. 2294 (2009), the Supreme Court noted that the aggravated felony definition contained at INA §101(a)(43) contains two types of definitions of crimes: generically defined crimes and "circumstance specific" types of crimes. The Nijhawan case ultimately holds that only in those "circumstance-specific" cases may a court look beyond a statute of conviction in determining whether a specific offense meets an aggravated felony definition. The Supreme Court held that in a fraud case like Kawashima, the amount of loss was meant to describe a circumstance of the commission of the offense, and not the offense itself and thus that it was irrelevant that the amount of loss was not an element of the statute of conviction.

The Supreme Court does not go through each of the aggravated felony categories; however, it lists as certain examples which it says do describe generic crimes. These examples include: murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms or destructive devices, and any offense identified as being "described in a particular section of the Federal Criminal Code. Id. at 2300.

The Supreme Court differentiates the fraud definition at INA §101(a)(43)(M)(i) from these generically defined offense as by noting that the clause, "in which the revenue loss to the government exceeds $10,000" necessarily refers to the circumstances of the offense and not to the elements of the generic offense.

Clearly "burglary" with no further explanatory clause falls within the category of generically defined crimes.

Thus, even though the ultimate holding in Kawashima has been overruled by Nijhawan, the Supreme Court actually confirmed that portion of the Kawashima case which overruled Parker and affirmed Navarro Lopez.

In Navarro Lopez, the Circuit Court refused to apply even a modified categorical approach in its determination that an offense was not a crime involving moral turpitude stating, "The modified categorical approach, however, only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring) (providing examples)." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007).

As discussed above, Cal. Pen. C. §459 does not contain an element equivalent to the unlawful or unprivileged entry which is a part of the generic definition. This element is an actual element of the generic definition, not a description of a particular circumstance under which the crime is committed. Because it is not an element of the California statute, the California statute can never define the aggravated felony described in INA §101(a)(43)(A)(G). Because the statute can never define the aggravated felony, it would be improper to proceed to the modified categorical approach.

Accordingly, this court need look no further than the statute of conviction to determine that, as a matter of law, the Respondent herein has not been convicted of an aggravated felony and to terminate this case.