Offense
Unlawful entry of a vehicle with intent to commit theft or any felony
Aggravated Felony (AF)
Should not be an AF even with a year imposed (but as always, 364 days is preferred)
Crime Involving Moral Turpitude (CIMT)
Should not be CIMT but plead to intent to commit “any felony” or a specific, non-CIMT felony, rather than to “theft”.
Other Removal Grounds
No other removal ground
Advice and Comments
PC 465 (AB 905, 2024)
This 1170(h) wobbler prohibits unlawful entry of a vehicle using tools or force, with intent to commit a theft or any felony. No $950 threshold for the felony.
AF. Based on caselaw on the immigration consequences of PC 459 burglary, PC 465 should not be an aggravated felony as burglary, theft, or a crime of violence even if a year or more is imposed. For further discussion of 465 as an AF, see endnote.1Pen C 465 as an AF. Even if a sentence of a year or more is imposed, unlawful entry of a vehicle should not be held an AF. This is based on caselaw analyzing the similar language at Pen C 459, burglary, under the categorical approach. See discussion at PC 459, above, and see generally ILRC, How to Use the Categorical Approach Now (2021).
Even if a year is imposed, PC 465 is not an AF as “burglary” under INA § 101(a)(43)(G) because the generic definition of burglary does not include burglary of an automobile. Taylor v. U.S., 495 U.S. 575 (1990). It is not an AF as “theft” under INA § 101(a)(43)(G), because the nearly identical phrase in PC 459 (“petty or grand larceny or any felony”) has been held to be overbroad and indivisible under the categorical approach, so that the minimum conduct to commit the offense does not require intent to commit theft. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (holding PC 459 is not an AF as attempted theft). Section 465 is not an AF as a crime of violence (against property) under 8 USC 16(a), INA 101(a)(43)(F) because it provides that the unlawful entry into the vehicle can be by use of, e.g., “a shaved key, jiggler key, or lock pick” or other means that do not require use of violent force.
Note that a vehicle burglary offense could be an AF as burglary, or perhaps a CIMT, if it had as an element burglary of a vehicle that is adapted to be a residence. But under the categorical approach, PC 465 does not have that as an element. For example, to be divisible into different elements, at a minimum the statute would have to be phrased in the alternative, with “vehicle adapted to be a residence” as one of the alternatives. Section 465 does not do that. Therefore, even if a vehicle in a particular case was adapted for residence, it is not an element of the offense and the offense would not be an AF. See discussion of divisibility in ILRC, How to Use the Categorical Approach Now (2021), www.ilrc.org/crimes-summaries. Still, try to obtain 364 days or less.
CIMT: Breaking and entering is a CIMT only if the intended offense is a CIMT. Based on caselaw analyzing similar language in PC 459, new PC 465 is not divisible between “theft” (a CIMT) or “any felony” (not a CIMT), or divisible as to which felony. Because the offense is overbroad and indivisible, no conviction should be found a CIMT. But best practice is to plead to entry with “intent to commit a felony,” or to commit a specific felony that is not a CIMT, e.g., PC 594, 530.5, 236. 32. For further discussion of 465 as a CIMT, see endnote. 2Pen C 465 as a CIMT. The BIA has long held that breaking and entering alone is not a CIMT, but breaking and entering with an element of intent to commit a CIMT is a CIMT. See, e.g., Matter of Z, 5 I&N Dec. 383 (BIA 1953) and Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1019 (9th Cir. 2005), abrogated on other grounds by Holder v. Martinez-Gutierrez, 566 U.S. 583 (2012). Like PC 459, new PC 465 does not have intent to commit a CIMT as an element. Section 465 penalizes unlawful entry with intent to commit “a theft or any felony,” which is nearly identical to the phrase in PC 459, intent to commit “petty or grand larceny or any felony.” The Ninth Circuit held that this phrase in PC 459 is not divisible for purposes of the intended offense, either between “larceny” and “any felony,” or as to the specific felony. See Rendon v. Holder, discussed above. “Any felony” is a category that includes non-CIMT offenses, e.g., receipt of stolen property, false imprisonment, vehicle taking, PC § 530.5, etc. Section 465 should be treated the same way.