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9th Circuit Holds That Two Burglary Charges Are Not Aggravated Felonies or Crimes Involving Moral Turpitude

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In this case, a native of Guatemala, pled guilty to two separate second-degree commercial burglary charges.  ICE issued a Notice to Appear, thereby commencing removal/deportation proceedings against him.  The man was unrepresented for his appearance before the immigration judge.

The government attorneys argued that the two burglary charges constituted aggravated felonies and that the man was deportable on this basis.  The government further argued that the two charges were crimes involving moral turpitude.  The ICE attorneys, therefore, argued that there were two separate reasons that the man should be deported.  Because the basis of his deportation were the criminal charges, the man was subject to mandatory detention and forced to remain in immigration jail while the deportation proceedings continued.

Despite the fact that the man had no attorney, the immigration judge determined that the convictions were not generic burglary offenses, as California's burglary statute does not require the entry to be either unlawful or unprivileged, but the federal generic definition does.  However, the immigration judge further held that because the sentences for burglary were each for more than one year, they constituted aggravated felonies and rendered the man deportable.

The man appealed to the Board of Immigration Appeals and requested legal representation.  The BIA granted the request for an attorney.  After briefing, the BIA held that the burglary charges were aggravated felonies and crimes involving moral turpitude.

The case was appealed to the Ninth Circuit Court of Appeals.  The Ninth Circuit held that the categorical approach did not apply as the California statute did not completely and cleanly overlap with the generic federal theft definition.  The Court then looked at the modified categorical approach, but the court concluded that entering a commercial building with the intent to steal items therein was not, as a matter of law, a "substantial step" supporting a conviction for attempted theft. In doing so, the Court drew a clear distinction between "mere preparation" and "substantial steps."  The Court noted that even after extensive preparations, the person may change their mind and not commit the crime.  Second, unless the behavior "manifests the firm commitment to perform a criminal act, the risk is too high that [courts] may have simply misinterpreted perfectly legal behavior, particularly when it is borne of customes, practices or ecccentricities that are not widely shared."

The Ninth Circuit rejected the argument too that the crimes were CIMTs.  The case was reversed and the order of removal was vacated.

This case illustrates the need for good legal counsel.  The alien's attorneys in this case did a masterful job and it shows why people facing deportation need the best attorney available.  If you find yourself facing deportation, do not proceed alone.  You may waive arguments that would allow you to stay in the United States.  Don't make that mistake.  Call the attorneys at the Hacking Immigration Law today at 1-314-961-8200 or contact us here.

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