Pedro Jose Hernandez-Cruz v. Eric H. Holder Jr.
651 F.3d 1094 (2011)
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Rule of Law:
A conviction for California commercial burglary, defined as entering a building with intent to commit theft, does not qualify as a generic attempted theft offense because merely entering a commercial building open to the public is not a "substantial step" toward theft. Similarly, such a conviction is not a Crime Involving Moral Turpitude (CIMT) as it lacks elements of unlawful entry, actual theft, or inherent fraud.
Facts:
- Pedro Jose Hernandez-Cruz was a lawful permanent resident who had been in the United States for thirty years.
- On June 15, 2006, Hernandez-Cruz entered a Northgate Supermarket during business hours, placed three cases of beer in a shopping cart, and exited the store without paying.
- A security guard confronted Hernandez-Cruz in the parking lot and detained him for the police.
- Approximately five months later, on November 15, 2006, Hernandez-Cruz was arrested for walking out of a different supermarket, Food 4 Less, with unpaid food items.
- In both criminal cases, Hernandez-Cruz was charged with commercial burglary (entering with intent to commit larceny) and petty theft.
- For both incidents, Hernandez-Cruz entered into plea bargains where he pleaded guilty or no contest to the commercial burglary charge, and in exchange, the prosecutors dismissed the petty theft charges.
Procedural Posture:
- Immigration and Customs Enforcement (ICE) initiated removal proceedings against Hernandez-Cruz, charging him with removability for conviction of an aggravated felony and two Crimes Involving Moral Turpitude (CIMTs).
- An Immigration Judge (IJ) found Hernandez-Cruz's convictions were aggravated felonies and CIMTs and ordered him removed.
- On initial appeal, the Board of Immigration Appeals (BIA) reversed the IJ's finding that the convictions were for generic theft offenses and remanded the CIMT issue.
- On remand, the government added a charge that the convictions constituted generic attempted theft offenses, and the IJ again found Hernandez-Cruz removable on both the aggravated felony and CIMT grounds.
- Hernandez-Cruz appealed to the BIA, which dismissed his appeal, affirming the IJ's decision that the convictions were aggravated felonies (as attempted theft) and CIMTs.
- Hernandez-Cruz filed a petition for review of the BIA's final order with the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a conviction under California Penal Code § 459 for entering a commercial building with intent to commit larceny qualify as either (1) a generic 'attempted theft' offense constituting an aggravated felony, or (2) a Crime Involving Moral Turpitude (CIMT) under federal immigration law?
Opinions:
Majority - Judge Berzon
No. A conviction for California commercial burglary does not qualify as an aggravated felony or a Crime Involving Moral Turpitude for immigration purposes. To qualify as a generic attempted theft offense (an aggravated felony), the crime must include both intent to commit theft and an overt act constituting a 'substantial step' towards its commission. The court reasoned that merely entering a commercial building open to the public, while a necessary precursor to shoplifting, is not a 'substantial step.' Unlike breaking into a locked car, this act is not strongly corroborative of criminal intent, as countless individuals perform the same act for lawful purposes. It is mere preparation, not an attempt. Furthermore, the conviction is not a CIMT because it does not match the elements of any established CIMT, such as generic burglary (which requires unlawful entry), generic theft (which requires a taking of property), or generic attempted theft. The offense is not inherently fraudulent and does not punish conduct that is so 'base, vile, or depraved' as to shock the public conscience, as it only requires harboring an intent that is never acted upon.
Analysis:
This decision reinforces the strict application of the categorical and modified categorical approaches in immigration law, mandating that courts look only to the statutory elements of the crime of conviction, not the defendant's underlying conduct. It clarifies the 'substantial step' requirement for attempt liability, drawing a sharp distinction between inherently suspicious acts and legally ambiguous preparatory acts. The ruling significantly protects the integrity of plea bargains for non-citizen defendants, ensuring that convictions for lesser offenses, strategically chosen to avoid immigration consequences, are not re-characterized based on conduct related to dismissed charges.
