Offense
Burglary, Second degree, (Commercial)
Aggravated Felony (AF)
Never an AF under any category; see 460(a).
To be safe, avoid CRC 4.421(a)(1) and (2), among others. 1
The BIA held that a NY conviction for displaying a firearm while committing burglary constituted a COV AF. Matter of Pougatchev (BIA 2023) 28 I&N Dec. 719. To be safe, defenders should avoid (a)(1) and (a)(2) but if it cannot be avoided, specify “shows high degree of callousness” for (a)(1) and “armed with a weapon” for (a)(2). In Pougatchev, the BIA determined that “The display of what appears to be a firearm while committing second degree burglary is essentially a criminal threat of force or violence and distinguishes this statute from a statute that covers only ordinary burglaries.”
Immigration defenders can distinguish Pougatchev from CA burglary with these factors because the minimum conduct for factor (a)(1) is arguably “shows high degree of callousness,” which is defined as “demonstrat[ing] a lack of sympathy for the suffering of . . . the victim(s),” and the minimum conduct for 4.421(a)(2) is “carried a weapon,” without displaying it, similar to Penal Code 12022(a)(1) (armed with a firearm).
See CRC 4.421.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT regardless of intended offense; see 460(a). See Advice.
Other Removal Grounds
No other removal ground.
Advice and Comments
Very good immigration plea for clients who were admitted into the U.S., regardless of record of conviction (ROC). Still, for extra protection against wrongly filed immigration charges, one can create a good ROC by identifying lawful entry or, especially, intent to commit a non-CIMT. See discussion at 460(a)
DACA. Misd burglary is a “significant misdemeanor.” See PC 25400.
LRA Mandatory Detention: Normally burglary is a good immigration plea, but as of 2025, for people who were not admitted into the U.S., a conviction or pending charge of 459 will trigger mandatory ICE detention without bond under the Laken Riley Act (LRA). The LRA only applies to people who were not admitted, for example those who entered the U.S. without inspection or were paroled in. It does not apply to people who were admitted to the U.S., for example, people who were admitted on a visa or BCC even if they overstayed, or LPRs in the U.S. See further discussion at Overview: Mandatory Detention. Alternatives that should not cause mandatory detention (MD) or match other removal grounds would be PC 32, 237, 594, 602, or 207, as well as offenses such as 530.5 and 496 (but see below). The sentence must be 364 days or less on 496 or 32). ICE likely will argue that PC 496 and 530.5 also trigger MD. There are strong arguments that they do not, but the defendant will be detained while making these arguments. See advice to PC 496 and Overview: Mandatory Detention, above.
(Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
Prop 47: If an offense from before Nov. 5, 2014 was entering open business with intent to steal $950 or less, see the possibility of reducing burglary to shoplifting, PC 459.5, under 1170.18. This can be good for SB 54 purposes, because 459.5 is a misdemeanor that will not permit the sheriff to transfer to ICE. See below. But for immigration purposes, (a) immigration authorities may not give effect to Prop 47 reductions 2See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). and (b) 459 has precedent that it is not a CIMT, but 459.5 does not yet; see PC 459.5.
SB54: This felony conviction permits law enforcement to transfer/notify ICE for 15 years. The misdemeanor conviction permits law enforcement can notify/cooperate for 5 years. See SB 54 advisory at www.ilrc.org/crimes-summaries.
See 4.421 factors for how the removability analysis may change.