Ninth Circuit Reverses BIA on Commercial Burglary CIMT

In Hernandez-Cruz v. Holder, the Ninth Circuit found that California's commercial burglary statute did not fall within the "generic" attempted theft offense and therefore in this case could not be a crime of moral turpitude.

A crime of moral turpitude is one that is "inherently" or morally wrong and involves scienter, which means that the person committing the act knew it was wrong.  To determine if a crime is one involving moral turpitude, courts have developed two separate methods: (1) the categorical approach, and (2) the modified categorical approach.  For more detailed information about the split in the circuit courts and the Attorney General's position, please see well written article, The Categorical Approach for Crimes Involving Moral Turpitude After Silva-Trevino, Columbia Law Review, March 4, 2011.

An immigrant convicted of an aggravated felony after being admitted to this country is removable.  8 U.S.C. § 1227(a)(2)(A)(iii).  And an alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether jailed for it, is deportable.  8 U.S.C. § 1227(a)(2)(A)(ii).

Subsection (G) of 8 U.S.C. § 1101(a)(43) defines “aggravated felony” to include “a theft offense . . . for which the term of imprisonment [is] at least one year,” and subsection (U) provides that “an attempt or conspiracy to commit an offense described in this paragraph” also constitutes an aggravated felony. 8 U.S.C. § 1101(a)(43)(G) and (U).

The Categorical Approach

The categorial approach to determine whether a crime is a crime of moral turpitude evaluates the elements of the offense without regard to the specific actions of the alien who committed the offense.  The categorial approach asks the question, is moral turpitude inherent in the elements of the criminal offense as the law defines it?

The Modified Categorical Approach

The modified categorical approach is used to evaluate the immigration consequences of a conviction for violating a "divisible" statute, which is one that describes many different types of misconduct, some constituting deportable offenses and some not.  The modified categorical approach requires the court to examine parts of the record of conviction to try to determine of what specific part of the divisible sections of the statute the alien was convicted.

An example of a divisible statute in California is Health & Safety Code Section 11360, which makes it illegal to, with regard to marijuana, transport, import into the state, sell, furnish, administer, give away or attempts to import into the state.  For the purpose of immigration law, some of these acts are aggravated felonies, some are controlled substance violations and some are neither.  The modified categorical approach is a method for a court to try to determine whether the conduct the alien was convicted of engaging in was an aggravated felony, a controlled substance violation, or neither.

"Generic" Theft Offenses as CIMTs

In the Ninth Circuit, the prevailing view on aggravated felony analysis is to use the modified categorical approach by comparing the crime of conviction (in Hernandez-Cruz's case, attempted theft under California Penal Code § 459) with the generic crime (here, attempted theft) and determine whether the generic crime encompasses the crime of conviction.  Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir. 2008)

Under the categorical approach, a conviction under § 459 qualifies as a generic attempted theft offense "if the full range of conduct covered by [§ 459] falls within the... definition of" a generic attempted theft offense.  Hernandez-Cruz, quoting Ngaeth at 800-01.

Ngaeth defined a generic attempted theft offense as having two elements: (1) "an intent to commit a theft offense, of the sort generically defnied by [precedent], coupled with [2] an overt act constituting a substantial step towards the commission of the offense.  Ngaeth at 801.  A generic theft offense is defnied as "[1] a taking of property or an exercise of control over property[, 2] without consent[, 3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent."  Hernandez-Cruz quoting Carrillo-Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009).

The court noted California Penal Code § 459 has three elements: (1) entry, (2) into any building, certain vehicles and vessels, or other listed structures and containers, (3) with the intent to commit larceny or any felony.  Because a person can be convicted for entry, for example, to a locked vehicle with the intent to commit vandalism, but not theft, the court held that § 459 was not "a categorical match" for the generic aggravated felony offense.

The court then moved on to the "modified categorical approach" where it "conduct[s] a limited examination of documents int he record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defnied crime, without reviewing the particular facts underlying the conviction."

Here the court noted that Hernandez-Cruz was convicted of burglary, not attempted burglary or attempted theft.  The second element of the crime is an "overt act constituting a substantial step towards the commission of the offense."  Ngaeth, 545 F.3d at 801.  Because the factual basis for an "attempt" was not part of what Hernandez-Cruz pled guilty to, there was no determination or admission that Hernandez-Cruz had taken a "substantial step" under the law of attempt because that question was irrelevant to the crime Hernandez-Cruz pleaded guilty.

The court also noted that "mere preparation" to commit a crime "does not constitute a substantial step."  United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987), and that identifying the point at which the mere making of preparations becomes a substantial step toward the commission of a crime is one of degree and is often difficult to determine.  But generally, a suspect crosses the line separating preparation from attempt when his actions "unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances."  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007).  Even when intent is unquestionably criminal, it is insufficient to show that the suspect to certain necessary stepsUnited States v. Still, 850 F.2d 607 (9th Cir. 1988).

Then turning towards Hernandez-Cruz's specific conduct, the court noted that merely entering a commercial building during business hours is not a "substantial step" even though it was a necessary one.  The court noted that the law of attempt is designed both to give the criminal an opportunity to abandon his plans and also to avoid the risk of prosecuting misinterpreted perfectly legal behavior, "particularly when it is borne of customs, practices, or eccentricities that are not widely shared."  Most people entering a grocery store are not doing so to shoplift and merely entering the store with the intention of shoplifting is not a "substantial step" because the shoplifter can change his mind and leave without shoplifting or decide to pay for the item before actually shoplifting it.

Unliked generic attempted theft, the court continued, California commercial burglary does not have as elements both an intent to commit theft and and overt act that is a substantial step toward doing so.  Only the intent to commit theft or a felony when entering is required.  Because of this, Hernandez-Cruz's guilty plea did not necessarily admit the required "substantial step" for attempt liability and therefore his conviction was not for an aggravated felony.

The US Department of Justice maintains a summary of cases interpreting the aggravated felony rules.  You can view the February 19, 2009 summary on our site hereNOTE: this may not be the most recent summary.  Please visit for the most recent Immigration Judge Benchbook resources.