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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Falzone, Fausto USICE/DHS Litigation/UL$
Fausto Falzone 15 Governor Drive
14 Lafayette Square, Suite 510 Newburgh, NY 12550
Suite 510
Buffalo, NY 14203

Name: KAPANADZE, MIKHEIL A 056-502-590

Date of this notice: 9/12/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Guendelsberger, John
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Vtrgima 22041

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KAPANADZE, MIKHEIL USICE/DHS Litigation/UL$
16 A 2930/A056-502-590 15 Governor Drive
BUFFALO FEDERAL DETENTION CTR Newburgh, NY 12550
4250 FEDERAL DRIVE
BATAVIA, NY 14020

Name: KAPANADZE, MIKHEIL A 056-502-590

Date of this notice: 9/12/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

/J
.' It
/ J /l.!
ur-..u..:.
(..-
A._; vw-..,0
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Guendelsberger, John
Malphrus, Garry D.

Userteam:.

Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
.
'

u.s: Department of Justice Decision of the Board of Immigration Appeals


Exeeutive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A056 502 590 - Napanoch, NY Date:


SEP 1 2 2017
In re: Mikheil KAPANADZE

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Fausto Falzone, Esquire

ON BEHALF OF DHS: Daniel W. Kelly


Assistant Chief Counsel

APPLICATION: Termination

The respondent, a native and citizen of Georgia, has appealed from the decision of the
Immigration Judge dated April 6, 2017, finding him removable under section 237(a)(2)(A)(iii) of
the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), for a conviction of an
aggravated felony as defined in section 10l(a)(43)(G) of the Act, 8 U.S.C. l10l(a)(43)(G). On
appeal, the respondent disputes removability. For the following reasons, the appeal is sustained
and the proceedings are terminated.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.l(d)(3)(ii).

The issue in this case is whether the respondent's conviction for burglary in the third degree
under N.Y. Penal Law 140.20 (McKinney 2016) is an aggravated felony within the meaning of
the Immigration and Nationality Act. On appeal, as below, the respondent contends that N.Y.
Penal Law 140.20 is overbroad because the definition of a building includes, inter alia, inclosed
motor trucks, see N.Y. Penal Law 140.00(2) (McKinney 2016); a person may be convicted of
burglary of a building for unlawful entry into a van or truck with intent to commit a crime; and
New York State prosecutes people for such conduct.

Since N.Y. Penal Law 140.20 is overbroad and divisibility is not at issue,1 the respondent
contends that his conviction was not a categorical match to the generic federal offense of burglary
and proceedings should be terminated.

1 The Immigration Judge found that N.Y. Penal Law 140.20 is not divisible (U at 3). On appeal,
the respondent agrees that N.Y. Penal Law is not divisible (Respondent's Br. at 6). The
Department of Homeland Security does not specifically challenge the Immigration Judge's
divisibility analysis or argue that N.Y. Penal Law 140.20 is divisible. Rather, DHS asserts that
divisibility is not an issue in the instant matter (DHS's Br. at 5, n.7). Under these circumstances,

Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590

I. Facts and Procedural History

The facts are straightforward and undisputed. The respondent is a native and citizen of
Georgia On November 3, 2008, he was admitted to the United States as a lawful permanent
resident. On July 20, 2016, the respondent was convicted of the crime of burglary in the third

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degree under N.Y. Penal Law 140.20. For this offense, the respondent was sentenced to an
indetenninate term of imprisonment of two years and four months to seven years. See IJ at 1;
Exh. 1.

The Department of Homeland Security (OHS) served the respondent with a Notice to Appear,
Form 1-862, on November 30, 2016, charging him with removability under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), in that he
was convicted of an aggravated felony as defined in section 101(a)(43)(G) of the Act, 8 U.S.C.
1101(a)(43)(G), a burglary offense for which the term of imprisonment imposed is at least one
year (IJ at 2; Exh. 1). The respondent admitted the factual allegations in the Notice to Appear, but
denied removability and requested termination, which the OHS opposed (IJ at 2).

In a comprehensive, well-written and thoughtful decision, the Immigration Judge held that the
respondent was removable as charged. The Immigration Judge recognized that the generic federal
definition of burglary does not include unlawful entry into a car or motor vehicle with intent to
commit a crime (IJ at 3). Taylor v. United States, 495 U.S. 575, 598 (1990); Matter ofPerez, 22
l&N Dec. 1325, 1327 (BIA 2000).

However, the Immigrati9n Judge found that the facts in Taylor and Matter of Perez were
distinguishable because a prosecution under N.Y. Penal Law 140.20 required more than just an
unlawful entry into a vehicle or truck with intent to commit a crime (IJ at 4-6). According to the
Immigration Judge's analysis, New York State prosecutors must prove either a commercial,
educational or overnight use of a vehicle. The Immigration Judge opined that this use requirement
distinguishes N.Y. Penal Law 140.20 from mere unlawful entry into a car or motor vehicle (IJ at
4-6).

Moreover, the Immigration Judge found that the respondent did not identify any New York
State prosecutions where conduct for unlawful entry into a van or truck was prosecuted unless the
vehicle or motor truck was involved in a commercial enterprise (Id). Accordingly, the
Immigration Judge held that N.Y. Penal Law 140.20 was a categorical match and the respondent
was removable as charged.

OHS has waived the issue. Matter ofL-G-H-, 26 l&N Dec. 365, 366 n.1 (BIA 2014); Matter of
R-A-M-, 25 I&N Dec. 657, 658 n.8 (BIA 2012).

2
Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590
,

As the Immigration Judge noted, this proceeding presents a complicated issue (U at 3 n.1).2
We find that N.Y. Penal Law 140.20 is overbroad and that New York State has successfully
prosecuted conduct involving unlawful entry into a van under N. Y. Penal Law 140.20 regardless
of its use Since divisibility is not an issue in this case, we hold that the respondent's burglary
.

conviction is not a match to the federal generic definition of burglary. Accordingly, the appeal is
sustained, the order of removal is vacated, and the proceeding is terminated.

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II. Analysis

A. Burglary Offense as Aggravated Felony

Any alien convicted of an aggravated felony at any time after admission is deportable. Section
237(a)(2)(A)(iii) of the Act. As relevant here, an aggravated felony is defined as a burglary offense
for which the term of imprisonment is at least one year. Section 101(a)(43)(G) of the Act. The
respondent admitted that he was convicted of burglary in the third degree under N.Y. Penal Law
140.20.

To determine whether a state criminal conviction constitutes an aggravated felony under


section 237(a)(2)(A)(iii), the Board applies a categorical approach that analyzes whether the
minimum conduct punishable under the state statute categorically fits within the generic federal
definition of the corresponding aggravated felony. See Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013). Under the categorical approach, the Board must look only to the elements of the
state offense, and not to the underlying facts of the case. Mathis v. United States, 136 S. Ct. 2243,
2248 (2016).

Even though a state statute is overbroad, the alien has the burden of demonstrating that there
was "a realistic probability, not a theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime." Moncrieffe v. Holder, 133 S. Ct. at
1685, quoting Duenas-Alvarez v. United States, 549 U.S. 183, 193 (2007); Matter ofFe"eira, 26
I&N Dec. 415, 420 (BIA 2014) (citations omitted). In other words, an alien "would have to
demonstrate that the State actually prosecutes the relevant offense." Matter ofFe"eira, 26 l&N
Dec. at 420.

The issue here is whether the respondent's conviction for third degree burglary under N.Y.
Penal Law 140.20 is a categorical match to the generic federal definition of burglary, and, if not,
whether there was a reasonable possibility that the State would apply its statute to conduct falling
outside of the generic definition.3

2 In the past, we have held in unpublished decisions that N.Y. Penal Law 140.20 was a categorical
match to the generic federal definition of burglary. See e.g. Matter ofDaniels, 2007 WL 4182338
(BIA Oct. 22, 2007); Matter of Uddin, 2006 WL 3088959 (BIA Sept. 8, 2006).

3 If a state statute is overbroad, the next step is to determine whether the state statute is divisible.
Here, the Immigration Judge determined that N.Y. Penal Code 140.20 was not divisible, and this
holding was not challenged on appeal.

3
Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590

B. The Generic Definition of Burglary

1. Taylor v. United States, 495 U.S. 575 (1990)

The genesis for the categorical approach was the United States Supreme Court's decision in
Taylor v. United States, 495 U.S. 575 (1990). At the same time, the Supreme Court also provided

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a generic, contemporary definition for "burglary", which was designated under 18 U.S.C. 924(e)
as a ''violent felony" for purposes of the sentence enhancement provisions. Id at 587-80. A
generic burglary was defined as "unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime." Taylor v. United States, 495 U.S. at 598.

In reaching its definition, the Supreme Court considered a number of alternative ways to define
burglary. The Supreme Court rejected reliance on state law definitions of burglary, which would
result in arbitrary and unfair application of section 924(e) based on labels. Taylor v. United States,
495 U.S. at 590-92. By way of example, the Court noted that Michigan did not formally label
burglary, but classified burglaries into several grades of breaking and entering. In contrast, the
Court observed that California defined burglary so broadly as to include theft of goods from a
locked, but wioccupied automobile. The Court also cited to Texas state law as an example of a
broad definition including theft from a vending machine or an automobile. The Court noted that
a person imprudent enough to steal from an automobile in California would be found to have
committed a burglary whereas a conviction in Michigan may not constitute a burglary within the
meaning of section 924(e ). Id at 591.

The Supreme Court also declined to rely on the common law definition of burglary. As the
Court explained, the contemporary understanding of burglary had expanded far beyond its
common law roots; the modem crime of burglary had little in common with its common-law
ancestor except for the name; and the intent of the sentencing enhancement provision did not
support the common law definition. Id at 593-95.

The Supreme Court considered a proposal that burglary should be defined only to include a
subclass of burglaries whose elements include conduct presenting a serious risk of physical injury
to another over and above the risk inherent in ordinary burglaries. The Court rejected the subclass
definition because Congress intended to include ordinary burglaries, as well as burglaries
involving an element making them especially dangerous. Id at 596.

The Supreme Court explained, "[w]e believe that Congress meant by 'burglary' the generic
sense in which the term is now used in the criminal codes of most States." Id. at 598 (citations
omitted). Thus, the generic, contemporary meaning of burglary was defined as an unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Id

The Supreme Court, citing to 2 Wayne R. Lafave & Austin W. Scott, Jr., Substantive Criminal
Law, 8.13(c), p. 471 (1986), indicated that modem statutes typically describe the place as a
building or structure. Taylor v. United States, 495 U.S. at 598. Although Lafave and Scott also
explained that the contemporary understanding of building or structure extended to other places
such as all or some types of vehicles (Lafave & Scott, Substantive Criminal Law, 8.13(c), p. 471

4
Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590

(1986)), the Supreme Court did not hold, or even suggest, that vehicles were included in the generic
definition.

Rather, Taylor v. United States opined that some State statutes define burglary more broadly
than the generic definition by including places such as automobiles and vending machines. Taylor
v. United States, 493 U.S. at 599. As an example of an overbroad, nongeneric burglary statute, the

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Supreme Court referenced a Missouri burglary statute in effect at the time of Taylor's convictions
that included breaking and entering "any booth or tent, or any ho.at or vessel, or railroad car." Id.
at 599.

The Supreme Court adopted the categorical approach. Id at 600. The Supreme Court also
carved out an exception for a narrow range of cases involving a conviction under a nongeneric
burglary where a generic burglary may have actually been committed. In Taylor's case, most, but
not all of the Missouri statutes covering second degree burglary, were matches to the generic
definition of burglary. Id at 602. However, since a Missouri statute covered a nongeneric burglary
of breaking and entering into, inter alia, any boat or vessel, and since the record was unclear as to
which statute was the basis of Taylor's conviction, the Supreme Court vacated the judgment of the
Court of Appeals and remanded for further proceedings.

The Taylor Court did not view vehicles as a "place" within the generic definition of burglary.
Although burglary of vehicles was mentioned in LaFave and Scott, the Supreme Court did not
specifically include vehicles in the generic definition of burglary. Rather, the Taylor Court stated
that burglary statutes covering illegal entry into an automobile were overbroad.

Since Taylor, there has been much litigation on the application of the categorical approach, as
well as when and how to apply the narrow exception to the categorical approach. Much of this
litigation also involves the generic definition of burglary, and precedent consistently suggests that
a state statute including burglary of a motor vehicle is an overbroad, nongeneric burglary.

2. Progeny of Taylor v. United States

In Shepard v. United States, 544 U.S. 13, 15-16 (2005), the Supreme Court explained that a
generic burglary exists if committed in a building or enclosed space, not a boat or motor vehicle.
The Shepard Court held that the Massachusetts burglary statute at issue defined burglary more
broadly than the generic definition by extending it to boats and cars. Shepard v. United States,
544 U.S. at 17. In Descamps v. United States, 133 S.Ct. 2276, 2284 (2013), the Supreme Court
observed that the California statute on burglary covers nongeneric burglary by prohibiting entry
into an automobile. In Mathis v. United States, 136 S.Ct. 2243, 2250 (2016), the Supreme Court
held that an Iowa burglary statute was not a categorical match to the generic federal definition of
burglary because it covered a broader range of places such as burglary of land, water or air
vehicles.

In United States v. Lynch, 518 F.3d 164 (2d Cir. 2008), the Second Circuit considered whether
a conviction for attempted burglary was a burglary within the meaning of the Armed Career
Criminal Act, 18 U.S.C. 924(e) ("ACCA"). In dicta, the Second Circuit indicated that a third
degree burglary conviction under N.Y. Penal Law 140.20 was a nongeneric burglary. United

5
Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590

States v. Lynch, 518 F.3d at 171 n. 8. The Second Circuit reasoned that a conviction under N.Y.
Penal Law 140.20 is broader than the federal generic burglary because N.Y. Penal Law
140.00(2) expansively defines building to include any structure, vehicle or watercraft used for
overnight lodging of persons ... or an inclosed motor truck, or an inclosed motor truck trailer.
United States v. Lynch, 518 F.3d at 171 n.8. Nevertheless, the Second Circuit held that the
respondent's conviction for attempted burglary qualified as a violent felony under the residual

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clause of the ACCA. United States v. Lynch, 518 F.3d at 170.4

In Matter ofPerez, 22 I&N Dec. 1325 (BIA 2000), the Board adopted the Taylor definition of
the term "burglary offense." Thus, a burglary offense, within the meaning of section 10l (a)(43)(G)
of the Act, refers to a conviction, regardless of its exact definition or label used by state law, having
the basic elements of an unlawful or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime. The Board held that burglary of a vehicle in violation of
section 30.04(a) of the Texas Penal Code Annotated was not a burglary within the meaning of
section 10 l (a)(43)(G) of the Act.

C. N.Y. Penal Code 140.20 is a Nongeneric Burglary

Section 140.20 of the N. Y. Penal Law provides that: "A person is guilty of burglary in the third
degree when he knowingly enters or remains unlawfully in a building with intent to commit a
crime therein." Section 140.00(2) of the N.Y. Penal Law defines a building, and provides that a
building, "in addition to its ordinary meaning, includes any structure, vehicle or watercraft used
for overnight lodging of persons, or used by persons for carrying on business therein, or used as
an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer."

We agree with the respondent that section N.Y. Penal Law 140.20 is overbroad as the statute
also applies, inter alia, to an inclosed motor truck or inclosed motor truck trailer. See United States
v. Lynch, 518 F.3d 164 at 171 n.8 (N.Y. Penal Law 140.20 is broader than generic burglary
because of New York's "expansive definition of 'building' under N.Y. Penal Law 140.00(2)).
Taylor v. United States and its progeny have long agreed that motor vehicles are not treated as
places within the generic definition of building or structure, and support our conclusion.

We disagree with the Immigration Judge's interpretation that N.Y. Penal Law 140.20
requires, as an element of the conviction, a commercial use of an inclosed motor truck or motor
truck trailer. New York state court precedent holds that a burglary conviction of an inclosed motor
vehicle does not require a commercial use. See People v. Thompson, 714 N.Y.S.2d 264
(N.Y.App.Div. 2000) (no use based qualification applies to the question of what constitutes an
inclosed motor vehicle for purposes of building under N.Y. Penal Law 140.00(2)). Moreover,
the Supreme Court's definition of generic burglary in Taylor v. United States did not rely on the
use of a place.

4 In Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), the Supreme Court held that the
residual clause in 18 U.S.C. 924(e)(2)(B)(ii), which defines the phrase ''violent felony" to
include an offense that "otherwise involves conduct that presents a serious potential risk of
physical injury to another," is unconstitutionally vague.

Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
A056 502 590

Even though a state statute is overbroad, we must still consider whether a realistic probability
exists that the State would prosecute conduct that falls outside the generic definition of a crime.
Moncrieffe v. Holder, 133 S. Ct. at 1685; Matter of Ferreira, 26 I&N Dec. 415, 420 (BIA 2014).

The answer here is yes as the State of New York has prosecuted burglary in the third degree for
unlawful entry into a van as an inclosed motor vehicle without any commercial use requirement.
People v. Harrison, 849 N.Y.S.2d 435 (N. Y.App.Div. 2008). Since New York Penal Law 140.20

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is overbroad, and the state has successfully prosecuted burglary in the third degree for unlawful
entry into a van even though not used for a business, the state statute is not a categorical match.

Since there is no challenge to the Immigration Judge's decision that New York Penal Law
140.20 is not divisible, we may not apply the modified categorical approach. Descamps v. United
States, 133 S. Ct. 2276, 2285-86 (2013).

Alternatively, the OHS argues that Taylor's definition of a generic burglary is no longer viable
and should be revisited because the vast majority of state statutes now include vehicles in their
definition of burglary. We are, however, bound by Supreme Court precedent. Taylor v. United
States was precedent when the aggravated felony definition was amended in 1994 to include
burglary. See 222(a) of the Immigration and Nationality Technical Corrections Act of 1994,
P.L. 103-416, 108 Stat. 4320, Oct. 25, 1994. The question is not what state statutes now provide,
but what was the law when Congress included a burglary offense as an aggravated felony. See
Matter ofM-W-, 25 l&N Dec. 748, 751-52 and n.5 (BIA 2012).

Accordingly, the following orders will be issued.

ORDER: The respondent's appeal is sustained, and the Immigration Judge's decision is
vacated.

FURTHER ORDER: The respondent's proceedings are terminated.

Board Member Garry D. Malphrus respectfully dissents without separate opinion.

Cite as: MIkheil Kapanadze, A056 502 590 (BIA Sept. 12, 2017)
,

..

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
BERME ROAD PO BOX 800
NAPANOCH, NY 12458

Fausto Falzone Esq

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Prisoners Legal Services of New York
14 Lafayette Square, Suite 510
Buffalo, NY 14203

IN THE MATTER OF FILE A 056-502-590 DATE: Apr 6, 2017


KAPANADZE, MIKBEIL
16 A 2930

UNABLE TO FORWARD - NO ADDRESS PROVIDED

X ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION


IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACllSE> IS ."'1 COPY OF THS E>SCISIOtl OF TIIS HffHGFb."1'fiml JUE>GS ."18 TllS RSSULT
OF YOl:JR FlHLURS TO i"1PPSAR AT YOUR SCIISE>ULEE> E>EPORTATIOH OR RSMOV.J\L llSARHIG.
'PHIS E>SCISiml IS FINAL UUbSSS A MOTION TO RSOPSN IS FILED Hl ACCORDANCE
WITH SEC'Fiml 2H28(e) (3) OF TllS IHHIGR:.111TIOH MlE> t'1"1TIOHi"1I:.ITY ACT, 8 l":LS.G.
SECTIOH 1228(e) (3) HI E>SPORTATIOU PROCSSE>HIGS OR SECTION 249(e) (6),
8 f:J.S.C. SSCTIOH 1229a(e) (6) HI RSHO'A1'1L PROGSSE>HlGS. IF YOU FILE A HOTIOtl
TO RSOPSH, YOUR HOTIOtl HUST 88 FILSE> WI'Fll THIS COURT i

IMMIGRATION COURT
_BERME ROAD PO_BOX.80
- 0
NAPANOCH, NY 12458

__!_ OTHER: APPEAL DUE DATE: MAY 8, 2017.

COURT CLERK
IMMIGRATION COURT FF
CC: DRS/ICE LITIGATION UNIT
15 GOVERNOR DRIVE
NYEWBURGH NY 12550

MIKBEIL KAPANADZE
16A2930
LAI<EVIEW SROCK INCARCERTATION CF
9300 LAKE AVENUE - BOX T
BROCTON NY 14716
'

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ULSTER CORRECTIONAL FACILITY
NAPANOCH, NY

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File: A 056-502-590 Date: April 6, 201 7

In the Matter of: }


}
Mikheil KAPANADZE } In Removal Proceedings
}
Respondent }

CHARGE: INA 237(a)(2)(A)(iii) (Aggravated Felony, Burglary Offense)

APPLICATION: Motion to Terminate Proceedings

On BehalfofRespondent On Behalf ofDHS


Fausto Falzone, Esq. Daniel W. Kelly, Esq.
Prisoners' Legal Services of New York Assistant Chief Counsel
14 Lafayette Square, Suite 510 DHS/ICE, Office of Chief Counsel
Buffalo, New York 14203 15 Governor Drive
Newburgh, New York 12550

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

Introduction

Mikheil Kapanadze (Respondent) moves the -Court to terminate proceedings. Resp't


Mot. to Terminate (Jan. 6, 2017). The issue is whether Respondent's conviction for the crime of
burglary in the third degree under 140.20 of the New York State Penal Law (NYPL) is an
aggravated felony within the meaning of 101(a)(43)(G) and 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (INA). See id The Department of Homeland Security (DHS
or Department) opposes Respondent's motion. See DHS Resp. (Mar. 2, 2017). Because the
Court finds that NYPL 140.20 qualifies as an aggravated felony for the reasons stated below,
Respondent's motion to terminate will be denied, and he will be ordered removed to Georgia.

Background

Respondent is a native and citizen of Georgia. [Ex. 1]. On November 3, 2008, he was
admitted to the United States as a lawful permanent resident. [Ex. 2]. On July 20, 2016,
Respondent was convicted, under case number 00004-2016, of the crime of burglary in the third
degree under NYPL 140.20 in Putnam County, New York. [Ex. 3]. For this offense,
Respondent was sentenced to an indeterminate term of imprisonment of two years and four
months to seven years. Id
'-....
File: Mikheil KAPANADZE (A 056-502-590)

The Department served Respondent with a Form 1-862, Notice to Appear (NTA), on
November 30, 2016, charging him with removability under INA 237(a)(2)(A)(iii) in that he
was convicted of an aggravated felony as defined in 10l(a)(43)(G), a burglary offense for
which the term of imprisonment imposed is at least one year. [Ex. 1]. Respondent filed his
motion to terminate on January 6, 2017. See Resp't Mot. to Terminate. On January 19, 2017,

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Respondent appeared before the Court and admitted the factUal allegations in the NTA but
denied the sole charge of removability. The Department filed its opposition brief on March 3,
2017. See DHS Resp. At the master calendar hearing held on March 16, 2017, Respondent,
through counsel, stated that he was relying on his motion to terminate proceedings and would not
be filing any application( s) for relief or protection from removal. This decision follows.

Legal Standards and Analysis

Any alien who is convicted of an aggravated felony at any time after admission is
deportable. INA 237(a)(2)(A)(iii). An aggravated felony is defined, in part, as "a theft offense
(including receipt of stolen property) or burglary offense for which the term of imprisonment [is]
at least one year." INA 10l(a)(43)(G). Respondent admitted that he was convicted of burglary
in the third degree under NYPL 140.20. Cf Resp't Mot. to Terminate at 3; [Ex. 3).

To determine whether a state criminal conviction constitutes an aggravated felony under


INA 237(a)(2)(A)(iii), the Court applies a categorical approach that analyzes whether the
minimum conduct punishable under the state statute categorically fits within the generic federal
definition of the corresponding aggravated felony. See Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013) (citing Johnson v. United States, 559 U.S. 133, 137 (2010)). Under the categorical
approach, the Court must look only to the elements of the state offense, and not to the underlying
facts of the case. Mathis v. United States, 136 S. Ct. 2245, 2246 (2016). The generic federal
offense of burglary is "an unlawful or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598
(1990); see also Matter ofPerez, 22 I&N Dec. 1325, 1327 (BIA 2000). Respondent's statute of
conviction, which is a Class D Felony in the State of New York, provides that "[a]person is
guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a
building with intent to commit a crime therein." NYPL 140.20.

Although burglary in the third degree under NYPL 140.20 appears to easily fit within
the generic federal offense of burglary at first blush, Respondent contends that the NYPL's
definition of the term "building" renders NYPL 140.20 overbroad because it reaches conduct
beyond that proscribed by the generic federal definition. See Descamps v. United States, 133 S.
Ct. 2276, 2283 (2013) ("[l]f the statute [of conviction] sweeps more broadly than the generic
crime, a conviction under that law cannot [be a categorical match]."). Under the NYPL, the term
"building" is defined as follows:

'Building,' in addition to its ordinary meaning, includes any


structure, vehicle or watercraft used for overnight lodging of
persons, or used by persons for carrying on business therein, or
used as an elementary or secondary school, or an inclosed motor
truck, or an inclosed motor truck trailer. Where a building consists

2
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of two or more units separately secured or occupied, each unit shall


be deemed both a separate building in itself and a part of the main
building.

NYPL 140.00(2). Respondent therefore asserts that NYPL 140.20 is not a categorical match
to the generic offense of burglary because vehicles, watercrafts, and schools are included in the

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NYPL's definition of "building," but they do not qualify as a "building or other structure" under
the generic offense. See generally Resp't Mot. to Terminate; Taylor, 495 U.S. at 598.
Specifically, Respondent points to the Supreme Court's decision in Taylor and the Board of
Immigration Appeals' (BIA) decision in Perez for the proposition that vehicles are not a
"building or other structure" under the generic federal definition. See Taylor, 495 U.S. at 599
(noting that several States "define burglary more broadly . .. by including places, such as
automobiles and vending machines, other than buildings"); Perez, 22 I&N Dec. at 1326-27
(holding that the burglary of a vehicle is not a "burglary offense" within the definition of an
aggravated felony set forth in INA 10l(a)(43)(G)).

The Court is thus presented with the issue of whether the physical locations
incorporated into the NYPL's definition of "building" are vehicles or are sufficiently analogous
to vehicles, which would require the termination of these proceedings, or whether these physical
locations are distinguishable from vehicles and are a categorical match to "building or other
1
structure" under the generic offense of burglary. Before addressing that question, the Court first
finds that NYPL 140.20 is not divisible because the type of "building" involved in the offense
need not be alleged and proven beyond a reasonable doubt to secure a conviction. See, e.g.,
"Burglary: Third Degree, Penal Law 140.20," New York State Unified Court System Criminal
Jury Instructions, available at http://www.nycourts.gov/judges/cji/2-PenalLaw/l 40/l 40-20.pdf;
Mathis, 136 S. Ct. at 2250, 2253. So if just one of the physical locations incorporated into the
definition of "building" in NYPL 140.00(2) is found not to be a "building or other structure"
under the generic offense of burglary, then its presence in the statute will render the entire
offense of burglary in the third degree under NYPL 140.20 overbroad when compared to the
generic offense. Descamps, 133 S. Ct. at 2283.

The Court next finds it helpful to reorganize NYPL 140.00(2) to clearly identify which
physical locations are included in the definition of the term "building" in addition to its ordinary
meaning. Accordingly, NYPL 140.00(2) may be rewritten as follows:

"Building," in addition to its ordinary meaning, includes an


inclosed motor truck; an inclosed motor truck trailer; or any
structure, vehicle, or watercraft:
(a) used for overnight lodging of persons; or
(b) used by persons for carrying on business therein; or
(c) used as an elementary or secondary school.

Respondent does not seem to contend that a structure used for the overnight lodging of
persons, for the carrying on of business therein, or for an elementary or secondary school would
render NYPL 140.00(2) overbroad. See generally Resp't Mot. to Terminate. It is unclear why

1 This issue is admittedly a complicated one, and the Court extends its gratitude to both parties for their helpfu1
briefs on the matter.

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a structure used for any of these purposes would not be considered a "building or other structure"
under the generic definition, and the Supreme Court recognized in Taylor that Congress had
intended to define burglary expansively and in "the generic sense in which the term is now used
in the criminal codes of most States." 495 U.S. at 598. Hence, "structures other than dwellings"
are included in the generic definition of burglary despite the fact that "dwelling" was an element
of the offense of burglary in the common-law era. Id. at 593. That said, Respondent asserts that

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vehicles or watercrafts do not constitute a "building or other structure" under the generic offense,
even if the vehicle or watercraft is used for the overnight lodging of persons, for the carrying on
of business therein, or for an elementary or secondary school. See id at 599; Perez, 22 I&N
Dec. at 1326-27.

But the Court finds that vehicles or watercraft used for the specific purposes described in
NYPL 140.00(2) are distinguishable from simple automobiles, boats, or other vehicles and
2
qualify as a "building or other structure" under the generic definition. Contra Taylor, 495 U.S.
at 599; Perez, 22 I&N Dec. at 1326-27. As argued by the Department, federal law contains
several examples of vehicles and other vessels being included amongst other structures that may
be burglarized. See, e.g., 18 U.S.C. 2116 (proscribing the violent entry into "any car,
steamboat, or vessel" used by the mail service); 18 U.S.C. 2117 (proscribing the breaking into
of "any railroad car, vessel, aircraft, motortruck, wagon or other vehicle" containing interstate or
foreign shipments of freight or express or other property, or the entry of any such vehicle with
intent to commit larceny therein); 18 U.S.C. 2118(e)(2) (defining the term "business premises
or property" in a statute proscribing the burglary of controlled substances to include
"conveyances and storage facilities"). Absent binding authority to the contrary, there are not
oompelling reasons to interpret the term "building or other structure" so strictly as to exclude
vehicles or watercraft that are used for the overnight lodging of persons, for the carrying on of
business therein, or for an elementary or secondary school.

First, vehicles or watercraft that are used for the overnight lodging of persons (such as
motor homes or house boats) are distinguishable from simple automobiles or boats and by their
nature, serve as a dwelling, which was one of the necessary elements in common-law burglary.
Taylor, 495 U.S. at 593. In Taylor, the Supreme Court stated that a state-burglary statute is more

2 It is Respondent's burden to show that NYPL 140.00(2)-which explicitly lists the types of vehicles or
watercraft that it is incorporating into the definition of "building"-would apply to vehicles that are simple
automobiles or boats. See Matter ofFerreira, 26 l&N Dec. 415, 419 (BIA 2014). He has not done so. In People v.
Chapman, the trial court explained part of the history behind NYPL 140.00(2): "When the Legislature revised the
Penal Law in 1965 ... it adopted yet another definition of 'building' applicable to its burglary provisions ... . The
Executive Director and the Counsel of the Commission responsible for the revision ... noted the omission of any
reference to railway cars and inclosed motor trucks and truck trailers, and concluded that while, '[t]heft form such
vehicles [is] properly punished by the larceny sanctions,' it no longer constituted burglary." 611 N.Y.S.2d 991, 993
(N.Y. Sup. Ct. 1994). Although inclosed motor trucks and motor truck trailers were returned to NYPL 140.00(2)
in 1969, the commentary cited in Chapman stands for the proposition that New York's burglary statutes do not reach
vehicles that are not explicitly identified in NYPL 140.0 0(2). See id. Indeed, the Court has done a survey of some
New York cases involving theft of automobi1es or items from automobiles. In all these cases, the common charges
faced by defendants included criminal possession of stolen property (various degrees); unauthorized use of a vehicle
(various degrees); grand larceny; and petit larceny: in none of these cases did a defendant face a charge of burglary.
See, e.g., People v. Ohse, 114 A.D.3d 1285 (N.Y. App. Div. 2014); People v. Holder, 189 A.D.2d 783 (N.Y. App.
Div. 1993); People v. Garcia, 176 A.D.2d 173 (N.Y. App. Div. 1991); People v. Bradley, 143 A.D.2d 276 (N.Y.
App. Div. 1988); People v. Edwards, 478 N.Y.S.2d 966 (N.Y. App. Div. 1984); People v. Wickham, 793 N.Y.S.2d
900 (N.Y. Sup. Ct. 2005); People v. Fishman, 44 Misc.3d 1208(A) (N.Y. City Crim. Ct. 2014); People v. Velez, 565
N. Y.S.2d 950 (N.Y. City Crim. Ct. 1990).

4
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likely to fall within the modem definition of generic burglary when it hews close to the common
law view of burglary. See id. at 599 ("If the state statute is narrower than the generic view, e.g.,
in cases of burglary convictions in common-law States or convictions of first-degree or
aggravated burglary, there is no problem, because the conviction necessarily implies that the
defendant has been found guilty of all the elements of generic burglary."). Because a vehicle or
watercraft used for the overnight lodging of persons may be considered a dwelling, the Court

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finds it is a "building or other structure" within the meaning of generic burglary. Id

Second, a vehicle or watercraft that is used as an elementary or secondary school is also a


"building or other structure" within the meaning of generic burglary. The Court considers that
elementary or secondary schools are typically located in a building (in its ordinary sense) and
that a burglary of either would qualify as the burglary of a "building or other structure" under the
generic definition of burglary. It makes little sense, however, to exclude elementary or
secondary schools from the meaning of "building or other structure" simply because they are
located in vehicles or watercrafts that are both large enough to accommodate them and in fact do
so. Although Taylor and Perez exclude automobiles and ordinary vehicles from the reach of the
generic burglary, the Court finds that vehicles and watercraft that are used as elementary or
secondary schools are sufficiently distinguishable from automobiles and ordinary vehicles, and
the Court declines to read Taylor and Perez so broadly as to control the outcome here. Taylor,
495 U.S. at 599; Perez, 22 I&N Dec. at 1326-27.

Third, the Court finds that a vehicle or watercraft that is used by persons for carrying on
business therein is a "building or other structure" within the meaning of generic burglary.
Respondent cites several New York cases interpreting this type of structure, including People v.

Mincione, 66 N.Y.2d 995 (N.Y. 1985), and People v. Marino, 208 A.D.2d 564 (N.Y. App. Div.
1994). See Resp't Mot. to Terminate at 5. In Mincione, the New York Court of Appeals
affirmed a conviction for burglary in the third degree, reasoning that a large van used by a
construction company primarily to transport workers, materials, and tools is a building within the
meaning of NYPL 140.00(2) because it might be considered an "inclosed motor truck" or a
vehicle used for "carrying on business therein." 66 N.Y.2d at 996-97; but see People v.

McColl um, 183 A.D .2d 413 (N.Y. App. Div. 1992) (holding that the theft of two city buses did
not constitute burglary under the NYPL because a bus is neither an inclosed motor truck or a
place in which goods, merchandise, or valuable things are kept for use, sale, or deposit). And in
Marino, the Appellate Division of the New York Supreme Court upheld a conviction for the
burglary of a passenger train car because it is a structure or vehicle used by persons for the
carrying on of business therein. 208 A.D.2d at 565.

Though the van in Mincione and, to a far lesser extent, passenger train car in Marino bear
resemblance to an automobile or vehicle excluded from the meaning of "building or other
structure" under the generic offense of burglary in Taylor and Perez, the New York case law
cited by Respondent clearly demonstrates that vehicles or watercraft must have the purpose of
"carrying on business therein" to be considered a building within the meaning of NYPL
140.00(2); thus, they cannot be simple automobiles, boats, or even city busses. Mincione, 66
N.Y.2d at 996-97; Marino, 208 A.D.2d at 565; McCollum, 183 A.D.2d at 413-14. As explained
above, federal law considers railroad cars, vessels, conveyances, motor trucks, and other vehicles
used for a commercial purpose to be structures that might be burglarized. See, e.g., 18 U.S.C.
2116, 2117, and 2118(e)(2). Because the commercial construction van in Mincione and the

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File: Mikheil KAPANADZE (A 056-502-590)

passenger train car in Marino are reasonably related to structures that may be burglarized under
federal law-and because the types of vehicles and watercraft included in NYPL 140.00(2) are
distinguishable from simple automobiles, boats, or vehicles-the Court is not bound by Taylor
and Perez and declines to extend their reasoning. Compare Mincione, 66 N.Y.2d at 996-97;
Marino, 208 A.D.2d at 565; with Taylor, 495 U.S. at 599; Perez, 22 I&N Dec. at 1326-27.

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Finally, Respondent also argues that inclosed motor trucks and inclosed motor truck
trailers, which are part of the definition of"building" under NYPL 140.00(2), do not constitute
a "building or other structure" under the generic definition of burglary. Yet such motor trucks

d their trailers are inherently connected to commercial enterprise, and motor trucks are
identified as a covered structure in the federal burglary statute 18 U.S.C. 2116. In Mincione,
the New York Court of Appeals made no distinction between an "inclosed motor truck" and a
vehicle used for "carrying on business therein." See 66 N.Y.2d at 996-97. Similarly, the
Appellate Division of the New York Supreme Court has held that the identity of the registered
owner of a van and whether such van bore commercial markings and license plates were
evidentiary matters relevant to whether a van (or other vehicle) should be considered an

"inclosed motor truck." People v. Ruiz, 120 A.D.2d 437, 437-38 (N.Y. App. Div. 1986).
Because New York case law interprets inclosed motor trucks and truck trailers to be connected to
a commercial purpose, they are distinguishable from the automobiles, boats, and vehicles
contemplated in Taylor and Perez. The Court declines to read Taylor and Perez so expansively
as to render the entirety of NYPL 140.20 overbroad when it undoubtedly includes buildings
and structures that qualify for the generic offense of burglary and when there are strong
arguments for finding that all of the physical locations included in the definition of "building"
under NYPL 140.00(2) fall within the generic definition of burglary.

Therefore, the Court sustains the charge of removability under INA 237(a)(2)(A)(iii), as
defined in INA 101(a)(43)(G), for a burglary offense. Respondent's motion to terminate
proceedings will be denied.

Conclusion

For the foregoing reasons, the following Orders will be entered:

IT IS HEREBY ORDERED that the charge of removability under INA 237(a)(2)(A)(iii), as


defined in 101(a)(43)(G) of the Act, is SUSTAINED.

IT IS FURTHER ORDERED that Respondent's motion to terminate proceedings is DENIED.

IT IS FURTHER ODERED that Respondent be REMOVED from the United States based on
the charge of removability contained in the NTA. Georgia is designated as the country of
removal.

Roger F. Sagerman
Immigration Judge