Parzych v. Garland, 20-2317

• Decision Date: 28 June 2021
• Docket Number: No. 20-2317,20-2317
• Citation: 2 F.4th 1013
• Parties: Czeslaw M. PARZYCH, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

2 F.4th 1013

Czeslaw M. PARZYCH, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 20-2317

United States Court of Appeals, Seventh Circuit.

Argued June 3, 2021

Decided June 28, 2021

Michael Evan Rayfield, Attorney, Thomas Philip Halpern, Attorney, Mayer Brown LLP, New York, NY, Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Erica Miles, Attorney, Oil OIL, Attorney, Department of Justice Civil Division, Immigration Litigation, Washington, DC, Imran Raza Zaidi, Trial Attorney, Department of Justice, Civil Division, Immigration Litigation, for Respondent.

Before Manion, Wood, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Czeslaw Parzych, a Polish citizen and lawful permanent resident of the United States, was twice convicted of burglary in Illinois, leading the Department of Homeland Security to begin removal proceedings. After several appeals, the Board of Immigration Appeals ultimately upheld an Immigration Judge's determination that Parzych was removable. Parzych now petitions for review, arguing that the Board erred by applying the "modified categorical approach" to determine whether his Illinois convictions were removable offenses under federal law. Because the Illinois burglary statute is not divisible, we agree with him that the modified categorical approach does not apply. We therefore grant Parzych's petition for review, vacate the removal order, and remand the case to the Board for further proceedings.

I.

Parzych is a 58-year-old Polish citizen who was admitted to the United States as a lawful permanent resident in 1967. He was convicted of burglary in violation of 720 ILCS 5/19-1 in 2011 and again in 2015 for knowingly and without authority remaining in buildings (storage lockers) with intent to commit theft. Based on those convictions, Parzych received a Notice to Appear in 2017 that charged him as removable under the Immigration and Nationality Act for committing aggravated felonies of burglary and crimes involving moral turpitude. See 8 U.S.C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(ii)–(iii). Later, Parzych was also charged as removable for committing aggravated felonies of attempted theft based on the same Illinois convictions. See 8 U.S.C. §§ 1101(a)(43)(G), (U), 1227(a)(2)(A)(ii)–(iii).

Because this case has a protracted procedural history, we begin with the relevant legal framework on removability for state-law convictions. To decide whether a state-law conviction qualifies as a removable offense, immigration judges, the Board, and federal courts use the "categorical approach," comparing the elements of the crime as listed in the statute of conviction with the generic elements of the crime. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). If the elements of the state statute are the same as or narrower than the generic crime, the conviction is a removable offense. Id . But when a statute of conviction is overbroad (proscribing some types of conduct that would constitute a removable offense and some that would not) and divisible (listing alternative elements of a crime), the "modified categorical approach" applies. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016) (describing approach as applied to the Armed Career Criminal Act); see also Gonzales v. Duenas-Alvarez , 549 U.S. 183, 185–86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (noting that courts apply the same approaches under the Immigration and Nationality Act and Armed Career Criminal Act). Under that approach, a court may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction" and then compare it to the generic offense. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

In 2017, an Immigration Judge summarily ordered Parzych removed, without applying either the categorical approach or the modified categorical approach. On appeal, the Board remanded Parzych's case, however, because the IJ had not supported his decision with factual findings or legal analysis.

On remand, the IJ applied the categorical approach and found that Parzych was not removable because the behavior criminalized by 720 ILCS 5/19-1 was broader than the removable offenses of burglary and attempted theft. Specifically, the IJ determined that the location and intent elements of 720 ILCS 5/19-1(a)¹ were categorically broader than those for generic burglary and attempted theft, respectively.

The Board reversed the IJ's decision, explaining that because the statute was divisible with respect to the elements of location and intent, the IJ should have applied the modified categorical approach. On remand, the IJ applied that approach and found Parzych to be removable because his Illinois charging documents for both convictions showed that he was convicted of burglary of a storage unit with intent to commit theft, and those crimes matched the generic definitions of burglary and attempted theft. See Smith v. United States , 877 F.3d 720, 722 (7th Cir. 2017) (quoting Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ) (explaining that generic burglary prohibits unlawful entry into a "building or structure"); Vaca-Tellez v. Mukasey , 540 F.3d 665, 671 (7th Cir. 2008) (holding that Illinois conviction for burglary with intent to commit theft is equivalent to generic attempted theft). This time, the Board adopted and affirmed the IJ's decision.

Parzych petitioned this court for review, challenging the Board's conclusions that the Illinois statute was divisible and that the modified categorical approach should be applied. The government sought remand based on our decision in United States v. Glispie , 943 F.3d 358 (7th Cir. 2019), which certified to the Illinois Supreme Court the question whether the definition of unlawful entry in Illinois's residential burglary statute, 720 ILCS 5/19-3, was broader than generic burglary. See Glispie , 943 F.3d. at 359–60. In a minute order, we remanded Parzych's case to the Board.

On remand, the Board stood by its conclusion that Parzych was removable. Although it acknowledged that the Illinois Supreme Court had yet to resolve the certified question from Glispie , the Board concluded that Parzych's offenses appeared not to qualify as aggravated felonies of burglary because the scope of unlawful entry in Illinois's burglary statutes was likely broader than that of the generic crime.² But the Board reaffirmed its decision that Parzych was removable for committing aggravated felonies of attempted theft and crimes of moral turpitude. It explained that it had appropriately applied the modified categorical approach because 720 ILCS 5/19-1(a) was divisible with regard to intent, citing Illinois cases that referred to the "element of intent" as "essential." People v. Toolate , 101 Ill.2d 301, 78 Ill.Dec. 153, 461 N.E.2d 987, 990 (1984) ; People v. Payne , 194 Ill.App.3d 238, 141 Ill.Dec. 168, 550 N.E.2d 1214, 1220 (1990) ; People v. Kerestes , 38 Ill.App.3d 681, 348 N.E.2d 274, 276 (1976).

II.

In this appeal, Parzych maintains that he is not removable for committing aggravated felonies of attempted theft or crimes of moral turpitude based on his Illinois burglary convictions. He argues that the intent element of 720 ILCS 5/19-1(a) is not divisible, so the Board erred by applying the modified categorical approach to determine that he was removable. We review de novo the legal question of whether the Illinois statute is divisible. See Garcia-Martinez v. Barr , 921 F.3d 674, 678 (7th Cir. 2019).

A statute is divisible if it lists multiple, alternative elements of a crime, and not just different factual means of proving one element. Mathis , 136 S. Ct. at 2248. " ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction.’ " Id. (citation omitted). Factual means, in contrast, are "circumstances" or "events" that need not be specifically proven. Id. (citation omitted). To determine whether a statute lists means or elements, we look to state law, beginning with relevant state-court decisions and the text of the statute itself. Id. at 2256 ; United States v. Garcia , 948 F.3d 789, 793 (7th Cir. 2020). When authoritative sources of state law do not explain whether the statute is divisible, then we may examine the record of the petitioner's prior conviction to determine whether the statute is divisible. Mathis , 136 S. Ct. at 2256–57 ; Najera-Rodriguez v. Barr , 926 F.3d 343, 350 (7th Cir. 2019).

The relevant provision of 720 ILCS 5/19-1(a) prohibits unlawful entry "with intent to commit therein a felony or theft." Under the Mathis framework, this section is divisible if, to sustain a conviction, the government needs to prove that a defendant had either the intent to commit a felony or to commit theft. It is not divisible, however, if intent is a single element of burglary such that the government need prove only that a defendant had some unlawful intent—i.e., intent to commit a felony, theft, or both—upon unlawful entry.

A.

We conclude that the available sources of Illinois law establish conclusively that the intent provision of 720 ILCS 5/19-1(a) is not divisible.

First, several Illinois decisions demonstrate that an intent to commit a felony or theft is a means of violating the statute, not a divisible element. We so conclude for the same reason we found determinative in Garcia , 948 F.3d at 794. There, interpreting an Indiana drug statute, we explained that a statute is not divisible if a defendant can be charged with several violations but convicted of a single offense. A statute that does not list alternative elements for alternative crimes, but rather alternative means of committing a single crime, is not divisible. Id . Similarly, Illinois courts have held that a...