NIJC - 9th Cir.: Burglary Conviction Constitutes an Attempted Theft and Agg Felony

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9th Cir.: Burglary Conviction Constitutes an Attempted Theft and Agg Felony

Wednesday, 24 September 2008

Ngaeth v. Mukasey (9th Cir., 9/24/08, No. 04-71732)

PER CURIAM: Silverman, Berzon, Benitez

This is the review of the BIA's denial of a petition to reopen. Ngaeth came to the U.S. as a refugee and adjusted to LPR in 1982. In late 1992 he pled guilty to second degree burglary under Cal. Penal Code 459 and received a one year sentence. In 1999 iCE issued an NTA to Ngaeth alleging he was removable due to conviction of an aggravated felony. The IJ held that his conviction of entering a locked car with the intent to commit theft was an attempted theft offense and thus an agg felony. BIA remanded the case to the IJ to determine St. Cyr eligiblity. The respondent did not appear for hearings with the IJ and was ordered removed in absentia. The BIA upheld the IJ's denial of the motion to reopen.

Using the modified categorical approach the 9th Cir. determined that respondent's conviction was an agg felony as an attempt to commit theft under § 1101(a)(43)(U).

1. Two other circuits, the 5th and 7th, had concluded or suggested that conviction of vehicular burglary constitute an attempt to commit a theft.

2. "Attempt" was defined by the 9th Cir. as the intent to commit a theft offense "coupled with an overt act constituting a substantial step

towards the commission of the offense."

3. Since violation of Cal. Penal Code 459 could include attempts to commit crimes that were not theft it did not categorically define a theft offense.

4. The 9th Cir. found "a conviction for entering a locked vehicle with the intent to commit theft constitutes an attempted theft offense for purposes of the aggravated felony definition."

5. The 9th Cir. found respondent had pled guilty to the elements of attempted theft.

Read opinion here

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