BIA Holds That A Conviction For Second Degree Burglary Of A Dwelling Under New York Penal Law §140.25(2) Is Categorically A Conviction For Generic Burglary Under INA §101(a)(43)(G) Because The Statute Requires Burglary Of A Structure Or Vehicle That Has Been Adapted Or Is Customarily Used For Overnight Accommodation. United States v. Stitt, 139 S. Ct 399 (2018), Followed.
On August 17, 2022, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an order by the Immigration Judge (IJ) finding Respondent not removable as charged under INA §237(a)(2)(A)(iii) for having been convicted of an attempted aggravated felony burglary offense per INA §101(a)(43)(G) and §101 (a)(43)(U) and granting his application for cancellation of removal for certain permanent residents under INA §240A(a); Respondent was ordered removed.
A lawful permanent resident, Respondent was convicted of attempted burglary in the second degree in violation of New York Penal Laws (NYPL) §§(10.00 and 140.25(2) and was sentenced to 2 years in prison. After he was placed into proceedings, the IJ found him removeable and granted his cancellation application per INA §240A(a). The BIA first noted that because his removability had been established, Respondent had the burden of proving his eligibility for relief. Per INA §240A(a)(3), one who had been convicted of an aggravated felony cannot establish eligibility for cancellation of removal. On appeal, DHS argued that Respondent had not established cancellation eligibility because his New York conviction for attempted burglary in the second degree was categorically a conviction for attempted aggravated felony burglary. The Board next explained that whether a state burglary offense is an aggravated felony is a question of law that it reviews de novo, citing to 8 C.F.R. §1003.1(d)(3)(ii).
To start its analysis, the Board explained that INA §101(a)(43)(U) defines an aggravated felony as “an attempt or conspiracy to commit an offense described in” §101(a)(43). In turn, §101(a)(43)(G) further lists as an aggravated felony “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year”. Additionally, the U.S. Supreme Court has repeatedly held that “generic burglary” consists of an unlawful of unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
The opinion next noted that NYPL §140.25 provides one is guilty of second-degree burglary if he or she knowingly enters or remains unlawfully in a building with intent to commit a crime therein and when: 1) effecting entry or in the building or in immediate flight there from, the defendant or another participant in the crime (a) is armed with explosives or a deadly weapon; or (b) causes; or (c) uses or threatens the immediate use of a dangerous instrument; or (d) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; or 2) the building is a dwelling. New York law defines “dwelling” as “a building which is usually occupied by a person lodging therein at night.
Utilizing the modified categorical approach, it was undisputed from the record of conviction that Respondent was convicted of attempted burglary of a dwelling under subsection 2), requiring as an element that the building be a dwelling. The BIA thus focused solely on §140.25(2). Respondent argued on appeal that New York law incorporates a definition of “building” into his statute of conviction that is broader than the generic definition. But, pointed out the decision, the definition of “building” at NYPL §140.00(2) “does not apply to the alternative crime defined at section 140.25(2) under which the respondent was convicted, because a violation of this provision necessarily involves as an element the burglary of a subset of buildings – namely dwellings under section 140.00(3). ”The Board found that burglary of a “dwelling” as defined under §140.00(3) “fits within the generic definition of burglary.”
This conclusion was supported by the Supreme Court’s decision in United States v. Stitt, 139 S. Ct. 399 (2018), which was concerned with whether state laws criminalizing burglary of a nonpermanent or mobile structure, including a vehicle used for overnight accommodation, defined a generic burglary offense under a federal statute. Per Stitt, the BIA held that Respondent’s conviction for second degree burglary of a dwelling under §140.25(2) is categorically a conviction for generic burglary per INA §101(a)(43)(G), because the statute requires burglary of a “structure or vehicle that has been adapted or is customarily used for overnight accommodation.”
As the IJ found Respondent removable for having been convicted of two or more crimes involving moral turpitude per INA §237(a)(2)(A)(ii) and his aggravated felony conviction bars him from the remaining discretionary relief he requested, the DHS appeal was sustained, the cancellation grant vacated and Respondent ordered removed. Matter of V-A-K-, 28 I&N Dec. 630 (BIA 2022).
