Burglary, first degree (residential)
Aggravated Felony (AF)
Not a COV or AF under any category.1Burglary as an AF. A burglary conviction potentially can be an aggravated felony under any of three categories, but under the categorical approach California burglary (Pen C § 459) does not come within any of these categories and never is an AF, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (§ 460(b), commercial) burglary. (See Categorical Approach Advisory for more information.) Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those offenses are aggravated felonies: California burglary includes a lawful entry and is not divisible between lawful and unlawful entry, and California burglary is not divisible as to the intended offense.
COV. California first degree burglary was held a COV under 18 USC § 16(b). When the Supreme Court struck down 18 USC § 16(b) as being unconstitutionally vague, it specifically held that Pen C § 460(a) is not a COV. See Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and see discussion at Pen C § 207, above. Burglary is not a COV under 18 USC § 16(a), because it has no element of use of force.
Burglary. Because the minimum conduct to commit § 459 includes a lawful entry, whereas the federal generic definition of burglary requires an unlawful entry, and because § 459 is not divisible between a lawful and unlawful entry, therefore no conviction of § 459 amounts to “burglary” for any purpose, regardless of information in the record of conviction. Descamps v. U.S., 570 U.S. 254 (2013).
Attempted theft (or attempted other aggravated felony offense). Section 459 is never attempted theft, under two independent theories. First, the Ninth Circuit found that it is never an attempted theft because the minimum conduct to commit § 459 includes entry with intent to commit a non-theft offense, and § 459 is not divisible for that purpose because a jury is not required to decide unanimously as to the identity of the intended offense. Therefore, no conviction of § 459 amounts to attempted theft for any purpose, regardless of information in the record of conviction. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).
Second, attempt requires intent plus a “substantial step” toward committing the offense. The Ninth Circuit held that the minimum conduct for § 460(b)—a lawful entry into a commercial building with intent to commit larceny or any felony—does not constitute the required substantial step. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1103-05 (9th Cir. 2011). The court did opine in dicta that a plea to the statutory alternative of entry into a locked container or vehicle (see Pen C § 459) may constitute a substantial step. Note, however, that the court assumed this offense would involve a break-in rather than a permissive entry (with a key). Because the minimum conduct includes a permissive entry into a locked car, this also should not be an attempt. See, e.g., Sareang Ye v. INS, 214 F.3d 1128, 1134 (9th Cir. Cal. 2000) (“Moreover, because section 459 does not require an unprivileged or unlawful entry into the vehicle, see Parker, 5 F.3d at 1325, a person can commit vehicle burglary by borrowing the keys of another person’s car and then stealing the car radio once inside.”) Still, where possible plead to something other than a locked vehicle or at least to lawful entry.
460(a) and (b) can take a sentence of 1 yr or more if needed. While 364 is always preferable, this is one of the more secure offenses to take 1 yr on. See § N.4 Sentence.
Crime Involving Moral Turpitude (CIMT)
Should not be a CIMT regardless of intended offense, under BIA and Ninth Circuit standards,2California burglary (Pen C § 459) is never a CIMT, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (Pen C § 460(b), commercial) burglary. Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those burglary statutes are CIMTs: California burglary includes a lawful entry and is not divisible between a lawful and unlawful entry, and California burglary is not divisible as to the intended offense. (See Categorical Approach Advisory for more information.)
The BIA has long held that burglary involving an unlawful entry is a CIMT if the intended offense is a CIMT. See, e.g., Matter of Z, 5 I&N Dec. 383 (BIA 1953) and see, e.g., 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). California burglary does not meet this definition for two reasons. First, the Ninth Circuit held that because § 460(b) can be committed merely by a lawful entry into a commercial building with bad intent, it is never a CIMT even if the intended offense is a CIMT. Hernandez-Cruz v. Holder, 651 F.3d 1094, 1103-05 (9th Cir. 2011). The only threat to this ruling would be if the BIA were to publish a decision disagreeing with Hernandez-Cruz, and then the Ninth Circuit were to decide to defer to that decision.
Second, even if the traditional test were applied to burglary with a lawful entry, § 459 cannot be held a CIMT because it requires intent to commit larceny or any felony, and “any felony” includes non-CIMT offenses, e.g., receipt of stolen property, false imprisonment, vehicle taking, etc. The Ninth Circuit held that § 459 is not divisible for purposes of the intended offense, either between “larceny” and “any felony,” or as to the specific felony. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (§ 459 is not an AF as attempted theft because it is not divisible as to intended offense). Because the minimum conduct to commit § 459 includes intent to commit offenses that are not CIMTs and the statute is not divisible, no conviction of § 459 is a CIMT under the BIA’s definition. (The BIA should defer to the Ninth Circuit as to when an offense is divisible.)
The BIA set out a second definition of CIMT that only applies to residential burglary, meaning that it could potentially affect § 460(a) but not § 460(b). It held that a burglary consisting of an unlawful entry into an occupied dwelling with intent to commit any crime is a CIMT, regardless of whether the intended crime is a CIMT. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009). However, California burglary is overbroad because the minimum conduct to commit § 460(a) includes a lawful entry, and it is not divisible between a lawful and unlawful entry. Descamps v. U.S., 570 U.S. 254 (2013). Because § 460(a) is overbroad and indivisible, no conviction of the statute is a CIMT under this definition for any immigration purpose, regardless of information in the record of conviction. Note that § 460(a) is not affected by the Board’s decision in Matter of J-G-D-F, 27 I&N Dec. 82 (BIA 2017), which applied the same rule requiring an unlawful entry; that decision addressed only the definition of an occupied dwelling (including an intermittently occupied dwelling, under Oregon law).
However, while the BIA has emphasized the unlawful entry as a key factor in this definition, it has not specifically considered a statute like § 460(a) that includes a lawful entry into a residence. It is conceivable that someday it would revamp its definition and hold that § 460(a) is a CIMT. But even if the BIA were to make this change, the definition should not be applied retroactively. See, e.g., Martinez-Garcia v. Sessions, 886 F.3d 1291 (9th Cir. 2018) (declining to retroactively apply the expanded definition of theft as a CIMT set out in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016)). But because of that possibility, if avoiding a CIMT is absolutely critical it might be best to plead to a different offense.
Finally, even though the law is clear that no California burglary conviction is a CIMT for any purpose regardless of information in the record of conviction, defenders still should try to create a good record of conviction in case immigration authorities do not know the law and file erroneous charges against an unrepresented immigrant. Where possible, indicate on the record that the entry was lawful and/or that the intended offense was a non-CIMT. but see Advice about ways to try to prevent mistaken charges in immigration proceedings.
Other Removal Grounds
No other removal ground.
Advice and Comments
CIMT. PC 459 cannot properly be found a CIMT. Here are two ways to further protect D from a wrongful CIMT finding.
In the Ninth Cir 459 is not a CIMT for any purpose regardless of info in the ROC, because it is a lawful entry and it is not divisible as to the intended offense. See CIMT endnote. But because immigration authorities might make a mistake and review the ROC, and D may be unrepresented, best practice if possible is to identify an intended offense that was not a CIMT, e.g., felony 236/237, 496, 5943Felony vandalism can be the intended burglary offense. People v. Farley (2009, Cal) 46 Cal 4th 1053. or other felony non-CIMT, and/or state that it was a lawful entry.
460(a) does not meet the BIA’s specific definition for when res burglary is a CIMT, because that requires an unlawful entry. However, in case the BIA someday changes its definition, if avoiding a CIMT is absolutely critical one could seek a plea other than 460(a). See CIMT endnote.