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Case Name:YE V INS
Case Number:	Date Filed:
98-70784	06/09/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAREANG YE,
Petitioner,
                                                     No. 98-70784
v.
                                                     INS
IMMIGRATION AND NATURALIZATION
                                                     No. A25-315-317
SERVICE and UNITED STATES
                                                     OPINION
ATTORNEY GENERAL JANET RENO,
Respondents.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 25, 2000--San Francisco, California

Filed June 9, 2000

Before: Betty B. Fletcher, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Hawkins

_________________________________________________________________



COUNSEL

Lynn Marcus, University of Arizona College of Law, Tucson,
Arizona, for the petitioner.

Heather Phillips (argued) and David V. Bernal, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

HAWKINS, Circuit Judge:

Sareang Ye petitions for review of a final order of deporta-
tion issued by the Board of Immigration Appeals ("BIA").
The BIA found that Ye was removable under 8 U.S.C.
S 1227(a)(2)(A)(iii) as an "alien who is convicted of an aggra-
vated felony." Ye argues that his conviction for vehicle bur-
glary does not qualify as an "aggravated felony " because it is
neither a "burglary" nor a "crime of violence" as those terms
are used in the definition of "aggravated felony. " We agree
and grant the petition for review.

I. FACTS AND PROCEDURAL BACKGROUND

Ye was admitted to the United States in 1982 at the age of
seven and became a legal permanent resident in February
1983. In 1994, he pled guilty to two charges of vehicle bur-
glary under California Penal Code S 4591 and received a sen-
_________________________________________________________________
1 Section 459 provides:

                               5977


tence of three years imprisonment on one count and eight
months imprisonment on the other. Upon his release, Ye was
taken into custody by the INS, which issued him a Notice to
Appear on July 7, 1997. The Notice to Appear charged that
Ye had been convicted of the offense of vehicle burglary and
that he was therefore removable as an alien who has been
convicted of an aggravated felony.

Ye appeared pro se at his removal hearing before the Immi-
gration Judge ("IJ") and admitted that he had been convicted
of vehicle burglary. As a result, the IJ found that he was sub-
ject to removal under 8 U.S.C. S 1227(a)(2)(A)(iii) for having
committed an aggravated felony.2 The IJ subsequently found
that because the offense was not a "particularly serious crime"
under 8 U.S.C. S 1231(b)(3)(b), Ye could apply for withhold-
ing from removal. Then, after a hearing at which Ye testified
that he would be killed if sent back to Cambodia, the IJ
granted his application for withholding of removal.
_________________________________________________________________
      Every person who enters any house, room, apartment, tenement,
      shop, warehouse, store, mill, barn, stable, outhouse or other
      building, tent, vessel, as defined in Section 21 of the Harbors and
      Navigation Code, floating home, as defined in subdivision (d) of
      Section 18075.55 of the Health and Safety Code, railroad car,
      locked or sealed cargo container, whether or not mounted on a
      vehicle, trailer coach, as defined in Section 635 of the Vehicle
      Code, any house car, as defined in Section 362 of the Vehicle
      Code, inhabited camper, as defined in Section 243 of the Vehicle
      Code, vehicle as defined by the Vehicle Code, when the doors are
      locked, aircraft as defined by Section 21012 of the Public Utili-
      ties Code, or mine or any underground portion thereof, with
      intent to commit grand or petit larceny or any felony is guilty of
      burglary.
2 The IJ did not specify whether Ye's conviction qualified as a "burgla-
ry" under the definition of aggravated felony, or as some other offense.
Because he had been convicted of vehicle burglary, Ye assumed that the
IJ had in mind the burglary provision.

                               5978


Ye, now represented by counsel, appealed the finding that
he was subject to removal, arguing that his conviction for
vehicle burglary was not a "burglary" under the definition of
aggravated felony at 8 U.S.C. S 1101(a)(43)(G).3 The INS
argued that his conviction did qualify as a "burglary," but that
even if it did not, it constituted a "crime of violence" under
section 1101(a)(43)(F) of the aggravated felony definition.
The BIA agreed. Without deciding whether Ye had been con-
victed of a burglary under section 1101(a)(43)(G), it held that
Ye had been convicted of a "crime of violence " under section
1101(a)(43)(F) and that he was therefore removable under
section 1227(a)(2)(A)(iii) for having committed an aggravated
felony.

On appeal to this court, Ye argues that his conviction for
vehicle burglary was neither a "burglary" nor a "crime of vio-
lence," as those terms are used in the definition of "aggra-
vated felony." The INS argues that Ye's conviction falls
under both categories and that, as a result, this court lacks
jurisdiction to hear his appeal.

II. ANALYSIS

The Illegal Immigration Reform and Immigrant Responsi-
bility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009
(Sept. 30, 1996), limits our review of orders of removal.
Under 8 U.S.C. S 1252(a)(2)(C), as amended by IIRIRA, "no
court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of hav-
ing committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii) . . . ." Section 1227(a)(2)(A)(iii) provides
that an alien convicted of an aggravated felony may be
deported. So under IIRIRA, this court does not have jurisdic-
tion to review a final order of removal against "an alien who
_________________________________________________________________
3 The INS did not appeal the IJ's decision to grant withholding of
removal.

                               5979


is removable by reason of having committed" an aggravated
felony.

Because the issue in this appeal is whether Ye committed
an aggravated felony, and because we have jurisdiction to
determine our own jurisdiction, see Aragon-Ayon v. INS, 206
F.3d 847, 849 (9th Cir. 2000), the jurisdictional question and
the merits collapse into one. If Ye did not commit an aggra-
vated felony, we have jurisdiction, and Ye wins on the merits.
If Ye did commit an aggravated felony, we do not have juris-
diction (and Ye would lose on the merits anyway). The case
thus turns on whether Ye's conviction for vehicle burglary
qualifies as a "burglary" or a "crime of violence" as those
terms are used in the definition of "aggravated felony."

This court reviews de novo the question of whether a par-
ticular offense constitutes an aggravated felony for which an
alien is subject to removal. See Coronado-Durazo v. INS, 123
F.3d 1322, 1324 (9th Cir. 1997).

A. Burglary

[1] Under 8 U.S.C. S 1101(a)(43)(G), the term "aggravated
felony" means, among other things, a "burglary offense for
which the term of imprisonment [is] at least one year." The
statute does not define the word "burglary," but the Supreme
Court has addressed the meaning of that term in another stat-
ute.

In Taylor v. United States, 495 U.S. 575 (1990), a defen-
dant challenged his sentence enhancement under the Career
Criminals Amendment Act of 1986, which provides for an
enhancement if a person has three prior convictions for speci-
fied types of offenses, including "burglary." The defendant
argued that his conviction for second-degree burglary under
Missouri law did not qualify as a "burglary" under the Act
and that the sentence enhancement was therefore inapplicable.

                               5980


The Court did not decide whether the defendant's convic-
tion was a "burglary," but it held that the question could not
be answered by looking at the definition of burglary adopted
by a particular state; that would lead to disparate results in
different states. See id. at 590-92. Instead, the court held, the
word burglary "must have some uniform definition indepen-
dent of the labels employed by the various States' criminal
codes." Id. at 592. And, it held, a defendant has not been con-
victed of burglary under the Career Criminals Amendment
Act unless his offense meets the uniform definition. See id. at
598-99.

[2] The Court then looked at the various state statutes and
settled on a uniform definition of burglary as the "unlawful or
unprivileged entry into, or remaining in, a building or struc-
ture, with intent to commit a crime." Id. The Court specifi-
cally noted that entry into a vehicle qualifies as a burglary in
some states, including California, but that it would not fall
under the uniform definition. See id. at 591, 599. The Court
also stated that when determining whether a person has been
convicted of burglary, a judge should look first to the statute
under which the person was convicted. See id.  at 602. If the
statute is overbroad -- if it includes offenses that do not fall
under the uniform definition -- the judge may then look to
the charging papers and jury instructions to determine
whether the defendant's conviction actually meets the uni-
form definition. See id. But, the Court held, a judge should
not look to the particular facts underlying the conviction. See
id. at 600.

Although Taylor concerned use of the word "burglary" in
the Career Criminals Amendment Act, two of our sister cir-
cuits have applied the same analysis to use of the term "bur-
glary" in the Immigration and Nationality Act. In Lopez-Elias
v. Reno, No. 99-60767, 2000 WL 381459 at *2, *3 (5th Cir.
May 1, 2000), the Fifth Circuit held that when Congress uses
the term "burglary" without specifying a definition, a court
should apply the generic understanding of the word. It then

                               5981


adopted the Supreme Court's definition of burglary in Taylor
and held that the appellant's conviction for vehicle burglary
did not qualify as an aggravated felony under 8 U.S.C.
S 1101(a)(43)(G). See id. at *3. The Seventh Circuit reached
the same conclusion in Solorzano-Patlan v. INS , 207 F.3d
869, 874-75 (7th Cir. 2000).

We join these circuits in holding that the term "burglary,"
as used in section 1101(a)(43)(G), has a uniform definition
independent of the labels used by state codes and that the def-
inition is identical to the one adopted in Taylor -- the unlaw-
ful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime. We reach this con-
clusion for several reasons.

First, the concerns of uniformity that motivated the
Supreme Court in Taylor are equally strong in the immigra-
tion context. We have repeatedly recognized that the immi-
gration laws should be applied uniformly across the country,
without regard to the nuances of state law. See Kahn v. INS,
36 F.3d 1412, 1414 (9th Cir. 1994) ("The INA was designed
to implement a uniform federal policy, and the meaning of
concepts important to its application are not to be determined
according to the law of the forum, but rather require[ ] a uni-
form federal definition.") (alteration in original) (internal quo-
tations omitted); Avila-Murrieta v. INS, 762 F.2d 733, 735
(9th Cir. 1985) ("Immigration law is an area in which unifor-
mity is of great importance."); Burr v. INS , 350 F.2d 87, 90
(9th Cir. 1965) (application of federal immigration statute
"will not be made to depend upon the niceties and nuances of
state procedure").

Second, Congress added the term "burglary" to the defini-
tion of aggravated felony in 1994, four years after Taylor was
decided. Congress is presumed to be familiar with Supreme
Court precedent and to expect that its enactments will be
interpreted accordingly. See United States v. Wells, 519 U.S.
482, 495 (1997). Therefore, in the absence of legislative his-

                               5982


tory to the contrary, we must assume that Congress intended
the word "burglary" at 8 U.S.C. S 1101(a)(43)(G) to be inter-
preted consistently with the Supreme Court's definition of
that term in Taylor.

[3] Because Ye was convicted of vehicle burglary, which
does not fall under the uniform definition in Taylor, he has
not been convicted of burglary as that term is used at section
1101(a)(43)(G).

B. Crime of Violence

Under 8 U.S.C. S 1101(a)(43)(F), the term "aggravated fel-
ony" includes "a crime of violence (as defined in section 16
of Title 18, but not including a purely political offense) for
which the term of imprisonment [is] at least one year." Sec-
tion 16 of Title 18, in turn, provides that "crime of violence"
means:

      (a) an offense that has as an element the use,
      attempted use, or threatened use of physical force
      against the person or property of another, or

      (b) any other offense that is a felony and that, by
      its nature, involves a substantial risk that physical
      force against the person or property of another may
      be used in the course of committing the offense.

The government does not argue that force or its attempted
or threatened use is an element of California Penal Code
S 459, the statute under which Ye was convicted. The only
question, therefore, is whether Ye was convicted of an offense
that, "by its nature, involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense."

In making this determination, we generally follow a cate-
gorical approach, "looking only to the statutory definition[ ]

                               5983


of the prior offense." See United States v. Parker, 5 F.3d
1322, 1324 (9th Cir. 1993) (quoting Taylor, 495 U.S. at 600).
However, when the statute reaches both conduct that would
constitute a crime of violence and conduct that would not --
as does California Penal Code S 459 -- we follow a modified
categorical approach, in which we look to the charging paper
and judgment of conviction to determine if the actual offense
the defendant was convicted of qualifies as a crime of vio-
lence. See Parker, 5 F.3d at 1327. We do not, however, look
to the particular facts underlying the conviction. See Taylor,
495 U.S. at 600.

The judgment of conviction in this case shows that Ye pled
guilty under section 459 to vehicle burglary, and the informa-
tion alleges that he entered a locked vehicle with intent to
commit theft. Ye confirmed these facts at his removal hearing
before the IJ. Therefore, we must determine whether entry of
a locked vehicle with intent to commit theft is a crime that,
by its nature, involves a substantial risk that physical force
will be used against the person or property of another.

The INS argues that because a person can only be con-
victed of vehicle burglary if the doors of the vehicle are
locked, the offense will almost always involve some use of
physical force -- such as the breaking of a window or the jim-
mying of a lock. It also argues that, like residential burglary,
vehicle burglary involves a substantial risk that physical force
will be used against a person since an intruder never knows
when he might encounter someone inside.

We find these arguments unpersuasive. Like the Seventh
Circuit, we believe that "the force necessary to constitute a
crime of violence [ ] must actually be violent in nature."
Solorzano-Patlan, 207 F.3d at 875 n.10. And under section
459, there are numerous ways a person can commit vehicle
burglary short of using violent physical force. He can enter a
car through an open window, by means of a stolen key, or
with the aid of a "slim jim." See United States v. Chatman,
869 F.2d 525, 529 (9th Cir. 1989) (holding that under Califor-
nia Penal Code S 459, "no force against the vehicle need be

                               5984


proved; entry by way of a wing window that is unfastened has
been held to be a burglary"), abrogated on other grounds, Tay-
lor, 495 U.S. at 592-98. 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 bur-
glary by borrowing the keys of another person's car and then
stealing the car radio once inside.

We also reject the INS's analogy to residential burglary. A
person who enters a home or occupied building to commit
theft may well encounter people inside and resort to physical
force to carry out his plan. But the interiors of vehicles are
generally visible from the outside, and there is little risk that
a thief will stumble upon an unexpected occupant once he or
she gains entry to the car.

Finally, we reject the INS's argument that the legislative
history of 18 U.S.C. S 16 supports its interpretation. In United
States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990), we noted
that a Senate report concerning 18 U.S.C. S 16 listed "burgla-
ry" as an offense that would involve a substantial risk of
physical force against another person or against property.
However, as pointed out above, vehicle burglary does not fall
within the uniform definition of burglary used by Congress.
In addition, other evidence suggests that 18 U.S.C.S 16 was
not intended to include vehicle burglary. The application note
to the U.S. Sentencing Guidelines, which employ the defini-
tion of "crime of violence" found at 18 U.S.C.S 16, states that
" `[c]onviction for burglary of a dwelling would be covered
[under the "crime of violence" provision]: conviction for bur-
glary of other structures would not be covered.' " Becker, 919
F.2d at 571 (quoting Application Note 1 to U.S.S.G.S 4B1.2
(1988)). This evidence is not dispositive, but it undercuts the
INS's argument that the "crime of violence" provision was
generally understood to include all burglaries.

[4] Because entry into a locked vehicle is not essentially
"violent in nature," the risk of violence against a person or
property is low, and the legislative history does not indicate
that Congress intended to include vehicle burglaries, we hold

                               5985


that vehicle burglary is not a crime of violence under 8 U.S.C.
S 1101(a)(43)(F).4

III. CONCLUSION

Ye's conviction for vehicle burglary under California Penal
Code S 459 does not qualify as a "burglary " or a "crime of
violence" as those terms are used in the definition of aggra-
vated felony. As a result, he is not "an alien who is convicted
of an aggravated felony," and we have jurisdiction to hear his
appeal.5 We conclude that the BIA erred in determining that
he is removable under 8 U.S.C. S 1227(a)(2)(A)(iii).6

PETITION GRANTED.
_________________________________________________________________
4 In reaching this conclusion, we decline to follow the Eighth and Fifth
Circuits, which have held that vehicle burglary is a crime of violence. See
United States v. Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000); United
States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995). The Eighth Cir-
cuit offered no explanation for its holding, and the Fifth Circuit stated only
that vehicle burglary "often involves the application of destructive physi-
cal force to the property of another." Rodriguez-Guzman, 56 F.3d at 20.
5 We also reject the INS's argument, made in a footnote in its brief, that
we lack jurisdiction because Ye is "an alien who is removable by reason
of having committed . . . any offense covered by section 1227(a)(2)(A)(ii)
for which both predicate offenses are, without regard to their date of com-
mission, otherwise covered by section 1227(a)(2)(A)(i)." 8 U.S.C.
S 1252(a)(2)(C). Under this provision, we lack jurisdiction if Ye was con-
victed of two crimes of moral turpitude, not arising out of the same crimi-
nal scheme, and both crimes carry possible sentences of one year or
longer. Ye was convicted of two counts of vehicle burglary, which is a
crime of moral turpitude that carries a possible sentence of one year or
longer. But the INS has not shown that the two counts arose out of differ-
ent criminal schemes. It argues that one count was for an offense in 1993,
while the other was for an offense in 1994. However, the judgment of con-
viction indicates that both offenses occurred in 1994. Therefore, we cannot
conclude that Ye has committed two crimes of moral turpitude not arising
out of the same criminal scheme.
6 Because we conclude that Ye is not removable under section
1227(a)(2)(A)(iii), we need not reach his due process claims.

                               5986


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