Interim Decision #3432
In re Jaime Cesar PEREZ, Respondent
File A90 751 109 - Huntsville
Decided June 6, 2000
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal
Code Annotated is not a “burglary offense” within the definition of an aggravated felony in
section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G)
(Supp. IV 1998).
Pro se
Charlotte K. Lang, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; SCIALABBA,
Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU,
FILPPU, COLE, ROSENBERG, MATHON, GUENDELSBERGER, JONES,
GRANT, MOSCATO, and MILLER, Board Members.
SCHMIDT, Chairman:
This is a timely appeal from an Immigration Judge’s October 26, 1999,
decision finding the respondent removable as an alien convicted of an
aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998). We will
sustain the appeal and terminate removal proceedings.
I. ISSUE
The issue in this case is whether burglary of a vehicle under Texas state
law is a “burglary offense” within the definition of an aggravated felony set
forth in section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (Supp.
IV 1998). We hold that it is not.
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II. BACKGROUND
The respondent was charged with removability from the United States
as an alien convicted of an aggravated felony as defined in section
101(a)(43)(G) of the Act. At a hearing before the Immigration Judge, the
unrepresented respondent admitted that he had been convicted of burglary
of a vehicle in violation of section 30.04(a) of the Texas Penal Code
Annotated. That section provided as follows:
A person commits an offense if, without the effective consent of the owner, he breaks
into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.
Tex. Penal Code Ann. § 30.04(a) (West 1993). The only other evidence
in the record of the respondent’s conviction is a certified “commitment
print-out” that provides no details concerning the circumstances surrounding the conviction.
The Immigration Judge found the respondent removable as an alien
convicted of committing a burglary offense within the meaning of section
101(a)(43)(G) of the Act. On appeal, the respondent asserts, inter alia, that
his burglary offense is not one of “aggravated involvement.” We construe
this as a challenge to the Immigration Judge’s finding that the respondent’s
vehicle burglary conviction is for an aggravated felony. The appellate brief
of the Immigration and Naturalization Service does not elaborate on its
legal theory of removability. Upon consideration, we find that the respondent was not convicted of an aggravated felony.
III. FEDERAL BURGLARY OFFENSE
Generally, we apply a federal standard in determining whether a state
offense fits within the aggravated felony definition. See, e.g., Matter of
Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999). In the absence of a
definition of the term “burglary offense” in the Act, or some other clear
expression of congressional intent, our logical starting point is the definition of a burglary set forth by the United States Supreme Court in Taylor v.
United States,
495 U.S. 575 (1990). See Matter of Rodriguez-Rodriguez,
supra (citing the Taylor definition with approval).
Taylor v. United States was a sentence enhancement case presenting a
similar undefined use by Congress of the term “burglary.” The 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.
Taylor v. United States, supra, at 590-92. The Court also rejected the contention that burglary should be presumed to have its “common-law meaning.”
Id. at 594.
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Instead, the Court adopted a generic definition that embodied the modern use of the term in most state criminal codes and approximated the usage
in the Model Penal Code. Taylor v. United States, supra, at 598. Under that
definition, the basic elements of burglary are unlawful or unprivileged entry
into, or remaining in, a building or other structure with the intent to commit
a crime.
Id. At least two federal courts of appeals, including the United
States Court of Appeals for the Fifth Circuit, where this case arises, have
adopted the Taylor definition in interpreting the term “burglary offense”
under section 101(a)(43)(G) of the Act. Lopez-Elias v. Reno,
209 F.3d 788
(5th Cir. 2000); Solarzano–Patlan v. INS,
207 F.3d 869 (7th Cir. 2000).
In section 101(a)(43)(G) of the Act, Congress did not make reference
to a particular federal statute defining a burglary offense. In this context,
although a state definition of burglary is not necessarily irrelevant, including burglary of a vehicle in the definition of a burglary offense would be
inconsistent with the concept of burglary articulated in (1) the common law,
(2) the generic federal definition in Taylor, (3) the Model Penal Code, and
(4) the laws of many states. See Taylor v. United States, supra, at 598;
Model Penal Code §§ 221.0, 221.1 (1998). Therefore, it seems safe to say
that whatever the contours of a “burglary offense” under section
101(a)(43)(G) might be, they do not include burglary of a vehicle.
The question of the precise scope of the term “burglary offense” under
section 101(a)(43)(G) has been neither adequately developed nor fully
argued in this appeal. Here, we simply hold that burglary of a vehicle under
this particular Texas statute is not a burglary offense under section
101(a)(43)(G).
IV. CONCLUSION
We hold that this respondent’s conviction for burglary of a vehicle, in
violation of section 30.04(a) of the Texas Penal Code Annotated, is not a
conviction for an aggravated felony burglary offense under section
101(a)(43)(G) of the Act. We will therefore sustain the appeal and terminate
removal proceedings.
ORDER: The appeal is sustained and removal proceedings are terminated.
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