Guadalupe Chalup-Higuera v. Eric H. Holder Jr.

MEMORANDUM

The BIA found Petitioner Guadalupe Chalup-Higuera was removable as an alien convicted of a “burglary offense for which the term of imprisonment [is] at least one year,” 8 U.S.C. § 1101 (a)(4S)(G), and Chal-up-Higuera now petitions for review. We have jurisdiction pursuant to 8 U.S.C. § 1252 (a)(1) and grant Chalup-Higuera’s petition for review.

The federal definition of burglary contains “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with the intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). A “building or structure” does not include objects, such as motor vehicles, that “are either not designed for occupancy or not intended for use in one place.” United States v. Grisel, 488 F.3d 844, 849 (9th Cir.2007) (en banc).

The government alleged Chalup-Higu-era was removable because he was sentenced to thirty months imprisonment when he pled guilty to violating Ariz.Rev. Stat. § 13-1506(A) (“Burglary in the third degree”). Both paragraphs 1 and 2 of Section 13-1506(A) are categorically over-broad, as they criminalize conduct not within the federal definition…