In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3310

MARIO SOLORZANO-PATLAN,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.



Petition for Review
of an Order of the Board of Immigration Appeals
No. A90 689 643


Argued November 9, 1999--Decided March 10, 2000




  Before COFFEY, MANION and EVANS, Circuit Judges.

  COFFEY, Circuit Judge. Mario Solorzano-Patlan
challenges the Board of Immigration Appeals’
(BIA) decision that he was removable from the
United States as an "aggravated felon" because
his Illinois burglary conviction was classified
as a "burglary offense," as well as a "crime of
violence," for which the term of imprisonment is
at least one year. See 8 U.S.C. sec.sec.
1101(a)(43)(F) & (G). Because we conclude that
the BIA’s interpretation of sections
1101(a)(43)(F) and (G) was erroneous, we GRANT the
petition for review, VACATE the BIA’s deportation
order, and REMAND this case for further proceedings
consistent with this opinion.

I.   BACKGROUND

  On March 16, 1995, Solorzano-Patlan, a lawful
permanent resident of the United States with no
prior criminal record,/1 pled guilty to an
information in Lake County, Illinois, charging
that "without authority, [he] knowingly entered
a 1994 Ford Explorer belonging to [another] with
the intent to commit therein a theft."/2
(emphasis added). That same day, Solorzano-Patlan
was sentenced to sixty days’ imprisonment and
twenty-four months of supervised probation./3

  On March 31, 1998, the Illinois court revoked
Solorzano-Patlan’s probation because he failed to
complete his community service or pay his fines,
and sentenced him to three years’ imprisonment;
at the same time, recommending that Solorzano-
Patlan be enrolled in the Illinois "impact
incarceration" program, commonly referred to as
"boot camp." This recommendation was denied
because the Immigration and Naturalization
Service (INS) had placed a detainer on Solorzano-
Patlan making him ineligible for the "impact
incarceration" program, and he was incarcerated
at the Shawnee Correctional Center./4

  While he was serving his three-year sentence,
the INS issued Solorzano-Patlan a Notice to
Appear, thereby initiating removal proceedings
against him. See 8 U.S.C. sec. 1229. The Notice
to Appear charged that Solorzano-Patlan was
subject to removal from the United States based
on the INS’s determination that his 1995 Illinois
burglary conviction was classified as an
aggravated felony. See 8 U.S.C. sec.
1227(a)(2)(A)(iii) ("Any alien who is convicted
of an aggravated felony at any time after
admission is deportable.").

  On December 16, 1998, the Immigration Judge
(IJ) conducted removal proceedings to determine
the question of Solorzano-Patlan’s deportability.
Solorzano-Patlan appeared before the IJ and
admitted only the factual allegations contained
in the Notice to Appear, but argued that his
burglary conviction did not rise to the level of
an "aggravated felony," and should not be
classified as such, because it was neither a
"burglary offense" under 8 U.S.C. sec.
1101(a)(43)(G) nor a "crime of violence" under 8
U.S.C. sec. 1101(a)(43)(F).

  The IJ rejected Solorzano-Patlan’s arguments,
and concluded, without analyzing the specific
characteristics of Solorzano-Patlan’s offense,
that his 1995 Illinois burglary conviction, by
the very title of the offense, satisfied the
"burglary offense" definition of aggravated
felony. Also, the IJ only looked to the "generic
elements of the offense" and found that
Solorzano-Patlan’s conviction satisfied the
"crime of violence" definition of aggravated
felony because, according to the IJ, "burglary of
an auto ordinarily presents risk that physical
force would be used against property." Thus,
finding that Solorzano-Patlan had committed an
aggravated felony, the IJ terminated Solorzano-
Patlan’s status as a legal permanent resident and
ordered him deported to Mexico.

  Solorzano-Patlan appealed the IJ’s decision to
the BIA. On August 31, 1999, the BIA affirmed the
IJ’s decision, and concluded that Solorzano-
Patlan’s violation of the Illinois burglary
statute "falls easily within the definition of a
’burglary offense.’" The BIA further concluded
that Solorzano-Patlan committed a "crime of
violence" because, according to the BIA (which
relied on Fifth Circuit caselaw), "[t]he burglary
of a vehicle involves a substantial risk that
physical force may be used against persons or
property."/5 The BIA went on to hold that the IJ
correctly decided that Solorzano-Patlan was an
aggravated felon, and dismissed Solorzano-
Patlan’s appeal. Solorzano-Patlan petitions for
review.

II.   ANALYSIS

  Under The Immigration and Nationality Act (INA)
"[a]ny alien who is convicted of an aggravated
felony at any time after admission is
deportable." 8 U.S.C. sec. 1227 (a)(2)(A)(iii).
Additionally, the transitional rules set forth in
the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act, section 309(c)(4), state that
appeals of final orders of deportation entered
after October 30, 1996, shall not be permitted
"in the case of an alien who is inadmissible or
deportable by reason of having committed . . .
[an aggravated felony]." Because we have the
authority to determine jurisdiction, we may
review whether Solorzano-Patlan has committed an
aggravated felony under 8 U.S.C. sec.
1227(a)(2)(A)(iii). See Xiong v. INS, 173 F.3d
601, 604 (7th Cir. 1999). Consequently, both our
jurisdiction to hear this case and the merits of
the appeal turn on the question of whether
Solorzano-Patlan is an aggravated felon, a
decision we review de novo. Id. at 604-05.

  In this case, it is uncontested that Solorzano-
Patlan is an alien convicted under an Illinois
statute entitled burglary. Thus, the question is
whether Solorzano-Patlan’s conduct which resulted
in a conviction pursuant to 720 Ill. Comp. Stats.
5/19-1(a) is an "aggravated felony" as that term
is defined in 8 U.S.C. sec.
1227(a)(2)(A)(iii)./6 The INS argues that
Solorzano-Patlan’s burglary conviction satisfies
the definitions of two "aggravated felony"
offenses: "burglary offense" in 8 U.S.C. sec.
1101(a)(43)(G) and "crime of violence" in 8
U.S.C. sec. 1101(a)(43)(F).

A. The Definition of "Burglary Offense" in 8
U.S.C. sec. 1101(a)(43)(G)

  The INA defines "aggravated felony" as including
a "burglary offense for which the term of
imprisonment [is] at least one year." 8 U.S.C.
sec. 1101(a)(43)(G). It is important to note that
Congress did not define the term "burglary
offense" in the INA and that individual states
use different and various definitions to describe
what conduct does and does not constitute the
crime of burglary in their respective
jurisdictions./7 Notwithstanding this, the INS
argues that "[w]here petitioner was convicted of
the crime of burglary, his offense falls squarely
under the statute. No additional analysis should
be required." This is to say that, according to
the INS, Solorzano-Patlan’s Illinois conviction
is a "burglary offense," and thus an aggravated
felony, simply because he was convicted under an
Illinois statute entitled "burglary." Because the
Supreme Court has disapproved of this categorical
approach in similar cases, see Taylor v. United
States, 495 U.S. 575 (1990), we reject the INS’s
reading of 8 U.S.C. sec. 1101(a)(43)(G); although
Solorzano-Patlan’s offense is classified as a
"burglary" under Illinois law, it does not
necessarily follow that his offense is a per se
"aggravated felony" under 8 U.S.C. sec.
1227(a)(2)(A)(iii)./8

  In Taylor, the Supreme Court stated, although
in the context of a section 924(e) enhancement,
that

[i]t seems to us to be implausible that Congress
intended the meaning of "burglary" . . . to
depend on the definition adopted by the State of
conviction. That would mean that a person
convicted of unlawful possession of a firearm
would, or would not, receive a sentence
enhancement based on exactly the same conduct,
depending on whether the State of his prior
conviction happened to call that conduct
"burglary."

  For example, Michigan has no offense formally
labeled "burglary." It classifies burglaries into
several grades of "breaking and entering." See
Mich. Comp. Laws sec. 750.110 (1979). In
contrast, California defines "burglary" so
broadly as to include shoplifting and theft of
goods from a "locked" but unoccupied automobile.
See Cal. Penal Code Ann. sec. 459 (West Supp.
1990) . . . .

* * *

Without a clear indication that . . . Congress
intended to abandon its general approach of using
uniform categorical definitions to identify
predicate offenses, we do not interpret Congress’
omission of a definition of "burglary" in a way
that leads to odd results of this kind.

495 U.S. at 590-91 (emphasis added).

  As stated previously, Solorzano-Patlan pled
guilty in Illinois to burglary, pursuant to 720
Ill. Comp. Stats. 5/19-1(a), after he was charged
with "knowingly enter[ing] a 1994 Ford Explorer
belonging to [another without authority] with the
intent to commit therein a theft." (emphasis
added). This Illinois conviction, classified as
a burglary, prompted the INS to initiate
deportation proceedings against Solorzano-Patlan
and argue that he was deportable because he was
convicted of a burglary offense and was,
therefore, an aggravated felon.

  But we can see that the INS’s argument is
flawed when examining the charging papers in this
case. In this case, Solorzano-Patlan admitted
only to the facts contained in the burglary
charge before the IJ and specifically contested
the INS’s claim that he was an aggravated felon
based on those facts. Moreover, the charging
papers state that he entered the vehicle with the
intent to commit a theft, not with the intent to
commit a felony, as the statute gave the
government the option to charge./9

  By merely reviewing the statutes in the states
comprising the Seventh Circuit, not to mention
the other states across the country, it is easy
to understand why the Supreme Court has refused
to allow federal statutory interpretation to be
based on the various definitions of criminal
activity in the state of conviction. If
Solorzano-Patlan had been convicted in Indiana,
it is most likely he would have been charged
under Indiana Code sec. 35-43-4-2(a) (1999)
(emphasis added), which is entitled "Theft" and
reads: "A person who knowingly or intentionally
exerts unauthorized control over property of
another person, with intent to deprive the other
person of any part of its value or use, commits
theft . . . ." Therefore, if Solorzano-Patlan had
been convicted in Indiana, the INS would
presumably not have espoused the position that
Solorzano-Patlan’s conduct fell under the
"burglary offense" definition of an aggravated
felony because Solorzano-Patlan would not have
been convicted of burglary, but rather theft.

  If we examine Wisconsin criminal law under the
same factual situation, it is even more
understandable why Congress did not intend to
rely solely on the respective jurisdictions’
definitions of criminal conduct. If Solorzano-
Patlan had committed his offense in Wisconsin, he
would have been charged under Wisconsin Statute
sec. 943.11, which is entitled "Entry Into a
Locked Vehicle" and reads: "Whoever intentionally
enters the locked and enclosed portion or
compartment of the vehicle of another without
consent and with the intent to steal therefrom is
guilty of a Class A misdemeanor." Furthermore, a
Class A misdemeanor is only punishable by "a fine
not to exceed $10,000 or imprisonment not to
exceed 9 months, or both." Wis. Stat. sec.
939.51(3)(a) (1999). Therefore, in Wisconsin,
Solorzano-Patlan would only have been charged
with a misdemeanor, and therefore he would not
have been eligible for deportation.

  Because states define criminal conduct in a
variety of ways, the Supreme Court held that the
term "burglary" must be read in its "generic
sense" as "having the basic elements of unlawful
entry into, or remaining in, a building or
structure, with intent to commit a crime." Id. at
598-99 (emphasis added); cf. Black’s Law
Dictionary 194, 1424 (6th ed. 1990) (defining a
"building" as a "[s]tructure designed for
habitation, shelter, storage, trade, manufacture,
religion, business, and the like," and a
"structure" is defined as "an edifice or building
of any kind").

  The need for a uniform interpretation of
"burglary" in 8 U.S.C. sec. 1101(a)(43)(G) is as
great as the need for a uniform interpretation of
"burglary" in 18 U.S.C. sec. 924(e)(2) (B)(ii).
See Iris Bennett, The Unconstitutionality of
Nonuniform Immigration Consequences of
"Aggravated Felony" Convictions, 74 N.Y.U. L.
Rev. 1696 (1999). Thus, we conclude that
"burglary offense" in 8 U.S.C. sec.
1101(a)(43)(G) means "burglary" in its "generic
sense" and, therefore, according to Taylor, must
have the basic elements of unlawful entry into,
or remaining in, a building or structure, with
intent to commit a crime. Cf. United States v.
Guerrero-Cruz, No. 98-50685, 1999 WL 1128658 (9th
Cir. Dec. 7, 1999) (finding the California
statutory definition of "burglary" too broad and
employing the Taylor definition in interpreting
8 U.S.C. sec. 1101(a)(43)(G)). Therefore, the INS
interpreted burglary in too broad a manner and,
in the future, it would be well advised to look
at the charging papers in order to ensure that
these basic elements are satisfied before it
initiates the serious ramifications of removal
proceedings based on an alleged "burglary
offense."

  Because Solorzano-Patlan burglarized a motor
vehicle and not a "building or structure," we
hold that his 1995 Lake County, Illinois,
conviction under 720 Ill. Comp. Stats. 5/19-1(a),
is not a "burglary offense" within the meaning of
8 U.S.C. sec. 1101(a)(43)(G). Accordingly, the
BIA erred in using section 1101(a)(43)(G) as a
basis for Solorzano-Patlan’s removal.

B. The Definition of "Crime of Violence" in 8
U.S.C. sec. 1101(a)(43)(F)
  The INS also argues that Solorzano-Patlan’s
burglary of a motor vehicle constitutes a "crime
of violence" and, therefore, supports the BIA’s
decision to deport him from this country. The INS
follows the formalistic approach adopted by the
Fifth Circuit, see, e.g., United States v. Ramon-
Garcia, 95 F.3d 369, 371 (5th Cir. 1996), and
argues that Solorzano-Patlan’s burglary
conviction is necessarily a crime of violence
because burglary "by its nature" involves
"substantial risk that physical force . . . may
be used." On the other hand, Solorzano-Patlan
argues that the INS must make an individualized
analysis of whether his conduct carried a
substantial risk that force would be used against
persons or property.

  The INA defines "aggravated felony" as including
"a crime of violence . . . for which the term of
imprisonment [is] at least one year." 8 U.S.C.
sec. 1101(a)(43)(F). "Crime of violence," in
turn, is defined in relevant part as an "offense
that is a felony and that, by its nature,
involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense." 18
U.S.C. sec. 16(b)./10

  The Illinois statute under which Solorzano-
Patlan was convicted, defines "burglary" broadly,
encompassing both conduct that does involve a
substantial risk that physical force may be used
and conduct that does not involve a substantial
risk that physical force may be used. See 720
Ill. Comp. Stats. 5/19-1(a); compare People v.
Frey, 467 N.E.2d 302, 303 (Ill. App. Ct. 1984)
(affirming the burglary conviction of a defendant
who took a sledgehammer from the open bed of an
unattended pickup truck) with State v. Stone, 653
N.E.2d 1311, 1312 (Ill. App. Ct. 1995) (affirming
the burglary conviction of a defendant who
smashed the driver’s side window and "busted out"
the steering column of a Toyota sedan in order to
hot-wire the car). Because different levels of
criminal conduct will result in a conviction
under 720 Ill. Comp. Stats. 5/19-1(a), the
statute is a "divisible statute," and "[w]hen the
statutory definition of a criminal offense
encompasses conduct that does not constitute a
crime of violence as well as conduct that does
constitute a crime of violence, an [IJ] may not
simply categorize all conduct covered by the
offense as crime of violence conduct." Xiong, 173
F.3d at 605; see also United States v. Nelson,
143 F.3d 373, 374-75 (7th Cir. 1998) (rejecting
a per se rule in determining whether defendant’s
conviction for burglary was a "crime of violence"
under U.S.S.G. sec. 2K2.1(a)(6)); United States
v. Fife, 81 F.3d 62, 64 (7th Cir. 1996) ("looking
beyond the name of the law" in determining
whether defendant’s conviction for "armed
violence" was a violent felony under 18 U.S.C.
sec. 924(e)); In re Sweetser, BIA Int. Dec. 3390,
1999 WL 311950 (May 19, 1999) ("The statute’s
divisibility . . . allows a court to go beyond
the mere fact of conviction.").

  Consequently, the IJ erred in limiting his
review to the language and title of the statute
because, in our opinion, it is impossible to
classify Solorzano-Patlan’s offense by merely
reading the statutory language. The IJ should
have also reviewed and analyzed the charging
papers, including the complaint, in order that he
might, before he makes a decision as to whether
Solorzano-Patlan should be deported from this
country, determine whether the conduct for which
Solorzano-Patlan was convicted of involved a
"substantial risk that physical force . . . [may]
be used." Xiong, 173 F.3d at 604.

  Accordingly, we GRANT Solorzano-Patlan’s petition
for review, VACATE the deportation order of the BIA
dated August 31, 1999, and REMAND for further
proceedings consistent with this opinion.



/1 Solorzano-Patlan entered the United States in
1980 and became a lawful permanent resident in
1989, when he was about twelve. Also, he is the
father of a one-year-old U.S. citizen child, and
is engaged to marry the child’s mother.

/2 720 Ill. Comp. Stats. 5/19-1(a) provides, "[a]
person commits burglary when without authority he
knowingly enters or without authority remains
within a building, house trailer, watercraft,
aircraft, motor vehicle as defined in the
Illinois Vehicle Code, railroad car, or any part
thereof, with intent to commit therein a felony
or theft." (emphasis added).

/3 Solorzano-Patlan was also sentenced to perform
125 hours of public service work, assessed a fine
of $200, and ordered to pay $610 in restitution.

/4 See 730 Ill. Comp. Stats. 5/5-8-1.1(b)(8) ("In
order to be eligible to participate in the impact
incarceration program . . . The Department may
also consider . . . whether the committed person
has any outstanding detainers or warrants . . .
.").

/5 We note that it is rather obvious that some
physical force is necessary in factual situations
such as this. For example, one must insert and
turn a key to release the lock as well as turn
the handle to open a car door, and one must then
use force to pull the door open. We address the
issue of the amount of force necessary to trigger
this section later in the opinion.

/6 Solorzano-Patlan also contends that his original
term of imprisonment was less than one year and
that, absent the INS detainer, he would have been
eligible for "boot camp." The problem with this
argument is that Solorzano-Patlan was sentenced
to the three-year maximum after his probation was
revoked, and the relevant inquiry is whether the
possible maximum sentence that could have been
imposed is at least a year. Because it is
uncontested that Solorzano-Patlan’s conviction
carried a possible sentence of at least a year
(he received three), we need not address this
argument any further.

/7 As we shall see, the states within the Seventh
Circuit: Illinois, Indiana, and Wisconsin, all
use different criteria to categorize basically
the same conduct. That is, burglary in one state
is not burglary in another state.

/8 In contrast, a per se rule might be appropriate
for vehicular burglaries of occupied vehicles
under 720 Ill. Comp. Stats. 5/12-11.1 ("vehicular
invasion").

/9 See generally Hughey v. United States, 495 U.S.
411, 422 (1990) (lenity principles "demand
resolution of ambiguities in criminal statutes in
favor of the defendant"); Liparota v. United
States, 471 U.S. 419, 427 (1985) ("Application of
the rule of lenity ensures that criminal statutes
will provide fair warning concerning conduct
rendered illegal and strikes the appropriate
balance between the legislature, the prosecutor,
and the court in defining criminal liability.").

/10 We note that the force necessary to trigger this
section is more than merely opening a car door.
We are of the opinion that the force necessary to
constitute a crime of violence, must actually be
violent in nature. See Black’s Law Dictionary
1147 (6th Ed. 1990) (defining physical force as
"[f]orce applied to the body; actual violence.").
"In coming to this conclusion, we emphasize that
the relevant inquiry is whether the conduct
involved a substantial risk of physical force,
not whether physical force was actually used."
Xiong, 173 F.3d at 607.
