Ye v. INS., 98-70784

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 214 F.3d 1128
• Docket Number: No. 98-70784,98-70784
• Parties: (9th Cir. 2000) SAREANG YE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and UNITED STATES ATTORNEY GENERAL JANET RENO, Respondents. Office of the Circuit Executive
• Decision Date: 25 April 2000

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214 F.3d 1128 (9th Cir. 2000) SAREANG YE, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE and UNITED STATES ATTORNEY GENERAL JANET RENO, Respondents. No. 98-70784 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 25, 2000--San Francisco, California
Filed June 9, 2000

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Copyrighted Material Omitted

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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.

On Petition for Review of an Order of the Boaard of Immigration Appeals INS No. A25-315-317

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

OPINION

HAWKINS, Circuit Judge:

Sareang Ye petitions for review of a final order of deportation 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 aggravated felony." Ye argues that his conviction for vehicle burglary 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 burglary under California Penal Code S 459¹ and received a sentence 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 Immigration Judge ("IJ") and admitted that he had been convicted of vehicle burglary. As a result, the IJ found that he was subject to removal under 8 U.S.C. S 1227(a)(2)(A)(iii) for having committed an aggravated felony.² The IJ subsequently

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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 withholding 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.

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 convicted 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 violence," as those terms are used in the definition of "aggravated 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 Responsibility 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 having 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 jurisdiction to review a final order of removal against "an alien who 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 aggravated felony, we have jurisdiction, and Ye wins on the merits. If Ye did commit an aggravated felony, we do not have jurisdiction (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 particular 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

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 statute.

In Taylor v. United States, 495 U.S. 575 (1990), a defendant 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 specified 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

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and that the sentence enhancement was therefore inapplicable.

The Court did not decide whether the defendant's conviction 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 independent of the labels employed by the various States' criminal codes." Id. at 592. And, it held, a defendant has not been convicted of burglary under the Career Criminals Amendment Act unless his offense meets the uniform definition. See id. at 598-99.

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 structure, with intent to commit a crime." Id. The Court specifically 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 uniform 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...