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 nonsubstantive 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.