Solorzano-Patlan v. INS, SOLORZANO-PATLA

• Citation: 207 F.3d 869
• Decision Date: 10 March 2000
• Docket Number: PETITIONE,V,SOLORZANO-PATLA,No. 99-3310,99-3310
• Parties: (7th Cir. 2000) MarioIMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 869

207 F.3d 869 (7th Cir. 2000)

Mario SOLORZANO-PATLAN, PETITIONER,

V.

IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 99-3310

U.S. Court of Appeals, Seventh Circuit

Argued November 9, 1999

Decided March 10, 2000

Petition for Review of an Order of the Board of Immigration Appeals No. A90 689 643

[Copyrighted Material Omitted] Lisa J. Palumbo (argued), Legal Assistance Foundation of Chicago, Chicago, IL, for petitioner.

Joan E. Smiley (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, for respondent.

Before Coffey, Manion and Evans, Circuit Judges.

Coffey, Circuit Judge.

Mario Solorzano-Patlan challenges the Board of Immigration Appeals' (BIA) decision that he was removable from the United States as an "aggravated felon" because his Illinois burglary conviction was classified as a "burglary offense," as well as a "crime of violence," for which the term of imprisonment is at least one year. See 8 U.S.C. sec.sec. 1101(a)(43)(F) & (G). Because we conclude that the BIA's interpretation of sections 1101(a)(43)(F) and (G) was erroneous, we GRANT the petition for review, VACATE the BIA's deportation order, and REMAND this case for further proceedings consistent with this opinion.

I. BACKGROUND

On March 16, 1995, Solorzano-Patlan, a lawful permanent resident of the United States with no prior criminal record,¹ pled guilty to an information in Lake County, Illinois, charging that "without authority, [he] knowingly entered a 1994 Ford Explorer belonging to [another] with the intent to commit therein a theft."² (emphasis added). That same day, Solorzano-Patlan was sentenced to sixty days' imprisonment and twenty-four months of supervised probation.³

On March 31, 1998, the Illinois court revoked Solorzano-Patlan's probation because he failed to complete his community service or pay his fines, and sentenced him to three years' imprisonment; at the same time, recommending that Solorzano-Patlan be enrolled in the Illinois "impact incarceration" program, commonly referred to as "boot camp." This recommendation was denied because the Immigration and Naturalization Service (INS) had placed a detainer on Solorzano-Patlan making him ineligible for the "impact incarceration" program, and he was incarcerated at the Shawnee Correctional Center.⁴

While he was serving his three-year sentence, the INS issued Solorzano-Patlan a Notice to Appear, thereby initiating removal proceedings against him. See 8 U.S.C. sec. 1229. The Notice to Appear charged that Solorzano-Patlan was subject to removal from the United States based on the INS's determination that his 1995 Illinois burglary conviction was classified as an aggravated felony. See 8 U.S.C. sec. 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

On December 16, 1998, the Immigration Judge (IJ) conducted removal proceedings to determine the question of Solorzano-Patlan's deportability. Solorzano-Patlan appeared before the IJ and admitted only the factual allegations contained in the Notice to Appear, but argued that his burglary conviction did not rise to the level of an "aggravated felony," and should not be classified as such, because it was neither a "burglary offense" under 8 U.S.C. sec. 1101(a)(43)(G) nor a "crime of violence" under 8 U.S.C. sec. 1101(a)(43)(F).

The IJ rejected Solorzano-Patlan's arguments, and concluded, without analyzing the specific characteristics of Solorzano-Patlan's offense, that his 1995 Illinois burglary conviction, by the very title of the offense, satisfied the "burglary offense" definition of aggravated felony. Also, the IJ only looked to the "generic elements of the offense" and found that Solorzano-Patlan's conviction satisfied the "crime of violence" definition of aggravated felony because, according to the IJ, "burglary of an auto ordinarily presents risk that physical force would be used against property." Thus, finding that Solorzano-Patlan had committed an aggravated felony, the IJ terminated Solorzano-Patlan's status as a legal permanent resident and ordered him deported to Mexico.

Solorzano-Patlan appealed the IJ's decision to the BIA. On August 31, 1999, the BIA affirmed the IJ's decision, and concluded that Solorzano-Patlan's violation of the Illinois burglary statute "falls easily within the definition of a 'burglary offense.'" The BIA further concluded that Solorzano-Patlan committed a "crime of violence" because, according to the BIA (which relied on Fifth Circuit caselaw), "[t]he burglary of a vehicle involves a substantial risk that physical force may be used against persons or property."⁵ The BIA went on to hold that the IJ correctly decided that Solorzano-Patlan was an aggravated felon, and dismissed Solorzano-Patlan's appeal. Solorzano-Patlan petitions for review.

II. ANALYSIS

Under The Immigration and Nationality Act (INA) "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. sec. 1227 (a)(2)(A)(iii). Additionally, the transitional rules set forth in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, section 309(c)(4), state that appeals of final orders of deportation entered after October 30, 1996, shall not be permitted "in the case of an alien who is inadmissible or deportable by reason of having committed... [an aggravated felony]." Because we have the authority to determine jurisdiction, we may review whether Solorzano-Patlan has committed an aggravated felony under 8 U.S.C. sec. 1227(a)(2)(A)(iii). See Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). Consequently, both our jurisdiction to hear this case and the merits of the appeal turn on the question of whether Solorzano-Patlan is an aggravated felon, a decision we review de novo. Id. at 604-05.

In this case, it is uncontested that Solorzano-Patlan is an alien convicted under an Illinois statute entitled burglary. Thus, the question is whether Solorzano-Patlan's conduct which resulted in a conviction pursuant to 720 Ill. Comp. Stats. 5/19-1(a) is an "aggravated felony" as that term is defined in 8 U.S.C. sec. 1227(a)(2)(A)(iii).⁶ The INS argues that Solorzano-Patlan's burglary conviction satisfies the definitions of two "aggravated felony" offenses: "burglary offense" in 8 U.S.C. sec. 1101(a)(43)(G) and "crime of violence" in 8 U.S.C. sec. 1101(a)(43)(F).

A. The Definition of "Burglary Offense" in 8 U.S.C. sec. 1101(a)(43)(G)

The INA defines "aggravated felony" as including a "burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. sec. 1101(a)(43)(G). It is important to note that Congress did not define the term "burglary offense" in the INA and that individual states use different and various definitions to describe what conduct does and does not constitute the crime of burglary in their respective jurisdictions.⁷ Notwithstanding this, the INS argues that "[w]here petitioner was convicted of the crime of burglary, his offense falls squarely under the statute. No additional analysis should be required." This is to say that, according to the INS, Solorzano-Patlan's Illinois conviction is a "burglary offense," and thus an aggravated felony, simply because he was convicted under an Illinois statute entitled "burglary." Because the Supreme Court has disapproved of this categorical approach in similar cases, see Taylor v. United States, 495 U.S. 575 (1990), we reject the INS's reading of 8 U.S.C. sec. 1101(a)(43)(G); although Solorzano-Patlan's offense is classified as a "burglary" under Illinois law, it does not necessarily follow that his offense is a per se "aggravated felony" under 8 U.S.C. sec. 1227(a)(2)(A)(iii).⁸

In Taylor, the Supreme Court stated, although in the context of a section 924(e) enhancement, that

[i]t seems to us to be implausible that Congress intended the meaning of "burglary"... to depend on the definition adopted by the State of conviction. That would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct "burglary."

For example, Michigan has no offense formally labeled "burglary." It classifies burglaries into several grades of "breaking and entering." See Mich. Comp. Laws sec. 750.110 (1979). In contrast, California defines "burglary" so broadly as to include shoplifting and theft of goods from a "locked" but unoccupied automobile. See Cal. Penal Code Ann. sec. 459 (West Supp. 1990)....

* * *

Without a clear indication that... Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress' omission of a definition of "burglary" in a way that leads to odd results of this kind. 495 U.S. at 590-91 (emphasis added).

As stated previously, Solorzano-Patlan pled guilty in Illinois to burglary, pursuant to 720 Ill. Comp. Stats. 5/19-1(a), after he was charged with "knowingly enter[ing] a 1994 Ford Explorer belonging to [another without authority] with the intent to commit therein a theft." (emphasis added). This Illinois conviction, classified as a burglary, prompted the INS to initiate deportation proceedings against Solorzano-Patlan and argue that he was deportable because he was convicted of a burglary offense and was, therefore, an aggravated felon.

But we can see that the INS's argument is flawed when examining the charging papers in this case. In this case, Solorzano-Patlan admitted only to the facts contained in the burglary charge before the IJ and specifically contested the INS's claim that he was an aggravated felon based on those facts. Moreover, the charging papers state that he entered the vehicle with the intent to commit a theft, not with the intent to commit a...