Unit 6: Crimes Against Property Theft Burglary Exercise.

Unit 6: Crimes Against Property

Theft

Burglary

Exercise

Theft

Moral turpitude?Aggravated felony?

Theft: Moral Turpitude?

A conviction for an offense that includes as an element the intent to deprive the rightful owner permanently of his or her property involves moral turpitude. Matter of De La Nues, 18 I&N Dec.140 (BIA 1981).

Theft: Moral Turpitude? (2)

• Joyriding conviction does not involve moral turpitude where statute involves temporary taking of a motor vehicle. Matter of M, 2 I&N Dec. 686 (BIA 1946)

Theft: Aggravated Felony?

Elements of Theft Aggravated Felony:– Conviction for a theft offense, including

receipt of stolen property– Sentence of one year or more

8 USC § 1101(a) (43)(G), INA § 101(a)(43)(G).

“Theft Offense” Aggravated Felony Ground Interpreted

Matter of V-Z-S, 22 I&N Dec. 1338 (BIA 2000) (holding that a taking of property constitutes a theft offense aggravated felony regardless of whether a permanent taking of the property is an element of the offense).

Attempted Possession of Stolen Property

The BIA treats a conviction for attempted possession of stolen property as an attempted theft aggravated felony where the defendant receives a sentence of one year or more.

The BIA treats the offense as an attempted receipt of stolen property conviction. Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000).

Theft Test

Ninth Circuit: If theft statute is broader than federal definition of theft, it is not an aggravated felony. Respondent not deportable under theft aggravated felony because state statute included “theft of services.

U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir 2002)(en banc).

Theft Test (continued)

Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (theft of services is a theft offense within meaning of aggravated felony theft ground).

Theft Test (continued)

Third Circuit will not treat a theft offense that is also an offense involving fraud or deceit as an aggravated felony unless the loss to the victim exceeds $10,000 and the defendant receives a sentence of a year or more. Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) (involving Pennsylvania theft by deception conviction).

Burglary: Aggravated Felony?

Elements of Burglary Aggravated Felony:– Conviction for a burglary offense– Sentence of one year or more

8 USC § 1101(a) (43)(G), INA § 101(a)(43)(G).

Burglary Offense

Test follows Supreme Court in Taylor v. United States, 495 U.S. 575 (1990) (federal sentencing enhancement case).

In Taylor, 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.

Burglary Offense – Generic Definition

Under Supreme Court’s generic burglary definition, “burglary” is an unlawful or unprivileged entry into, or remaining in, a building or other structure with the intent to commit a crime.

Burglary Offense

A conviction that satisfies generic definition of burglary, and for which the defendant received a sentence of one year or more, is an aggravated felony.

Auto Burglary

Matter of Perez, 22 I&N Dec. 1325(BIA 2000)

Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000)

Ye v. INS, 214 F.3d 1128 (9th Cir. 2000)

Burglary of a Vehicle as Attempted Theft

According to the Seventh Circuit, a defendant who enters a vehicle with the intent to commit a theft has the intent to commit a crime and taken a substantial step towards its completion. United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

Burglary: Aggravated Felony?

Remember! A burglary offense may also be a crime of violence. A COV for which a defendant receives a one-year sentence is an aggravated felony.

8 USC § 1101(a) (43)(F), INA § 101(a)(43)(F).

Burglary: Moral Turpitude?

A burglary offense is a crime involving moral turpitude if the entry is made with the intent to commit a moral turpitude offense.

Matter of Frentescu, 18 I & N Dec. 244 (BIA 1982) (burglary with intent to commit theft is CIMT); Matter of M, 2 I & N Dec. 721 (BIA 1946) (burglary is not CIMT because record of conviction did not indicate the crime that accompanied the breaking and entering).

Sentencing Considerations

For a theft, burglary or crime of violence offense to be an aggravated felony, the defendant must receive a sentence of one year or more. In many jurisdictions, the sentencing range for a non-substantive offense may be different than the range for the substantive offense.

Exercise 1

Under the Wyoming burglary statute:

“A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.”

Wyo. Stat. § 6-3-301

Exercise 1 (Continued)

• Is Wyoming statute divisible as to the crime involving moral turpitude category?

• Is Wyoming statute divisible as to the burglary aggravated felony category?

Exercise 2

Analyze your state burglary statute as to whether it is necessarily a

– burglary aggravated felony?– crime of violence?– crime involving moral turpitude?

Exercise 3

How can a theft offense be covered under the theft aggravated felony definition, but not be a crime involving moral turpitude?

Avoiding Consequences

Name 4 things you could do to try to keep a burglary or theft offense from having immigration consequences.