In a published federal sentencing case, the Ninth Circuit held that Oregon convictions for fleeing or attempting to elude a police officer and first-degree burglary were not violent felonies.  The court noted that the fleeing a police officer statute did not include as an element the use, attempted use, or threatened use of physical force.  With respect to the burglary statute, the court noted that it included burglarizing of non-structures (such as booths, vehicles, boats, and aircraft), and thus, did not match the generic definition of a burglary offense.  The court further noted that Oregon's burglary statutes are indivisible with respect to what type of structure was burglarized.

Given the similarities between the definition of a violent felony for sentencing purposes and a crime of violence for immigration purposes, as well as the identical definition of a burglary offense employed in both sentencing and immigration law, this case may provide useful arguments for why these convictions should not be considered aggravated felonies in the immigration context.

The full text of United States v. Cisneros can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/22/13-30066.pdf

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