Czeslaw Parzych v. Merrick B. GarlandCzeslaw Parzych v. Merrick B. Garland
Petition for Review of an Order from the Board of Immigration Appeals. No. A017-769-657
Before MANION, WOOD, and BRENNAN, Circuit Judges.
I.
Parzych is a 58-year-old Polish citizen who was admitted to the United States as a lawful permanent resident in 1967. He was convicted of burglary in violation of
Because this case has a protracted procedural history, we begin with the relevant legal framework on removability for state-law convictions. To decide whether a state-law conviction qualifies as a removable offense, immigration judges, the Board, and federal courts use the “categorical approach,” comparing the elements of the crime as listed in the statute of conviction with the generic elements of the crime. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). If the elements of the state statute are the same as or narrower than the generic crime, the conviction is a removable offense. Id. But when a statute of conviction is overbroad (proscribing some types of conduct that would constitute a removable offense and some that would not) and divisible (listing alternative elements of a crime), the “modified categorical approach” applies. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016) (describing approach as applied to the Armed Career Criminal Act); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–86 (2007) (noting that courts apply the same approaches under the Immigration and Nationality Act and Armed Career Criminal Act). Under that approach, a court may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant‘s prior conviction” and then compare it to the generic offense. Descamps v. United States, 570 U.S. 254, 257 (2013).
In 2017, an Immigration Judge summarily ordered Parzych removed, without applying either the categorical approach or the modified categorical approach. On appeal, the Board remanded Parzych‘s case, however, because the IJ had not supported his decision with factual findings or legal analysis.
On remand, the IJ applied the categorical approach and found that Parzych was not removable because the behavior criminalized by
The Board reversed the IJ‘s decision, explaining that because the statute was divisible with respect to the elements of location and intent, the IJ should have applied the modified categorical approach. On remand, the IJ applied that approach and found Parzych to be removable because his Illinois charging documents for both convictions showed that he was convicted of burglary of a storage unit with intent to commit theft, and those crimes matched the generic definitions of burglary and attempted theft. See Smith v. United States, 877 F.3d 720, 722 (7th Cir. 2017) (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)) (explaining that generic burglary prohibits unlawful entry into a “building or structure“); Vaca-Tellez v. Mukasey, 540 F.3d 665, 671 (7th Cir. 2008) (holding that Illinois conviction for burglary with intent to commit theft is equivalent to generic attempted theft). This time, the Board adopted and affirmed the IJ‘s decision.
Parzych petitioned this court for review, challenging the Board‘s conclusions that the Illinois statute was divisible and that the modified categorical approach should be applied. The government sought remand based on our decision in United States v. Glispie, 943 F.3d 358 (7th Cir. 2019), which certified to the Illinois Supreme Court the question whether the definition of unlawful entry in Illinois‘s residential burglary statute,
See Glispie, 943 F.3d. at 359–60. In a minute order, we remanded Parzych‘s case to the Board.
On remand, the Board stood by its conclusion that Parzych was removable. Although it acknowledged that the Illinois Supreme Court had yet to resolve the certified question from Glispie, the Board concluded that Parzych‘s offenses appeared not to qualify as aggravated felonies of burglary because the scope of unlawful entry in Illinois‘s burglary statutes was likely broader than that of the generic crime.2 But the Board reaffirmed its decision that Parzych was removable for committing aggravated felonies of attempted theft and crimes of moral turpitude. It explained that it had appropriately applied the modified categorical approach because
II.
In this appeal, Parzych maintains that he is not removable for committing aggravated felonies of attempted theft or crimes of moral turpitude based on his Illinois burglary convictions. He argues that the intent element of
whether the Illinois statute is divisible. See Garcia-Martinez v. Barr, 921 F.3d 674, 678 (7th Cir. 2019).
A statute is divisible if it lists multiple, alternative elements of a crime, and
The relevant provision of
A.
We conclude that the available sources of Illinois law establish conclusively that the intent provision of
First, several Illinois decisions demonstrate that an intent to commit a felony or theft is a means of violating the statute, not a divisible element. We so conclude for the same reason we found determinative in Garcia, 948 F.3d at 794. There, interpreting an Indiana drug statute, we explained that a statute is not divisible if a defendant can be charged with several violations but convicted of a single offense. A statute that does not list alternative elements for alternative crimes, but rather alternative means of committing a single crime, is not divisible. Id. Similarly, Illinois courts have held that a defendant may be charged with unlawful entry with intent to commit multiple crimes but convicted of only one burglary offense. In People v. Scott, after a defendant was convicted of three counts of burglary for one unlawful entry with intent to commit a theft and two different felonies, the Illinois Supreme Court vacated all but one conviction, explaining that having intent to commit numerous thefts or felonies may sustain only one burglary conviction. 251 N.E.2d 190, 195 (Ill. 1969). Interpreting Scott, an intermediate Illinois appellate court later held that a defendant may be indicted of unlawful entry with intent to commit “a felony or theft,” in the disjunctive, because unlawful entry with multiple intents is only one crime. People v. Smith, 303 N.E.2d 525, 525–26 (Ill. App. Ct. 1973). See also People v. Turner, 303 N.E.2d 527, 527–28 (Ill. App. Ct. 1973) (finding that a defendant could be charged disjunctively with a felony or theft based on Smith).
Several other Illinois decisions further hold that the government need not prove intent to commit a certain felony or theft, as is required under Mathis for intent to be a divisible element. See Mathis, 136 S. Ct. at 2248 (government must prove elements of crime as part of conviction). “[A] trial court‘s finding of guilt will be sustained,” these cases explain, “if the evidence supports the finding that the defendant intended to commit any felony” or theft. People v. Alexander, 546 N.E.2d 1032, 1035 (Ill. App. Ct. 1989); see also People v. Johnson, 192 N.E.2d 864, 866 (Ill. 1963) (no reversible error when jury instructions included intent to commit felony or larceny but defendant was charged only with intent to commit larceny); People v. Peck, 194 N.E.2d 245, 247 (Ill. 1963); People v. Fico, 476 N.E.2d 47, 48–49 (Ill. App. Ct. 1985) (affirming conviction where government had proven intent to commit a felony at trial, even though defendant had been charged with intent to commit theft); People v. McCombs, 236 N.E.2d 569, 571 (Ill. App. Ct. 1968) (noting that government did not meet its burden because it failed to show that defendant had intent to commit either of two felonies).
The language of
B.
The government argues that the intent component of the statute is divisible. Like the Board, it relies on Illinois decisions holding that the state must prove that a defendant had “specific” intent to commit a crime as a “necessary” or “essential” element of burglary. See, e.g., Toolate, 461 N.E.2d at 990; Johnson, 192 N.E.2d at 866. It further points out that some of these cases refer to unlawful entry with intent to commit theft as a different crime from unlawful entry with intent to commit a felony. See Kerestes, 348 N.E.2d at 276. According to the government, these cases conclusively hold that intent to commit theft and intent to commit a felony are separate elements of
But the cases the government cites do not persuade us that
Moreover, the authorities the government cites are unconvincing because they address the form of proof required to show unlawful intent as it was charged, not whether the statute‘s different intents are separate crimes or elements of burglary. See Toolate, 461 N.E.2d at 990; Kerestes, 348 N.E.2d at 276; Johnson, 192 N.E.2d at 865–66 (considering whether evidence was sufficient to convict for charged crime of unlawful entry with intent to commit larceny); People v. Niksic, 53 N.E.2d 400, 401–02 (Ill. 1944) (noting state had to prove that defendant
The government also argues that we should look beyond authoritative state law and consider the charging documents and jury instructions underlying Parzych‘s convictions, which, it contends, suggest that
In the government‘s view, the references in Parzych‘s indictments to an “intent to commit theft” rendered that allegation an essential element of the crime because of Illinois’ criminal procedure statute. Under that statute, “[t]he presence of any unnecessary allegation” or “[t]he use of alternative or disjunctive allegations as to the acts, means, intents or results charged” is a “formal defect[]” in a charging document. See
Finally, the government urges that the divisibility of
Yet neither the blank line nor the committee‘s notes require a single form of intent to be inserted, nor do they clarify whether multiple offenses could be added, if alleged. Therefore, the jury instructions do not suggest that the information to be inserted is a single element of the crime. See, e.g., Hillocks v. Att‘y Gen. U.S., 934 F.3d 332, 342-43 (3d Cir. 2019) (holding that jury instructions did not establish that the statute was divisible because they included “[crime]“); Harbin v. Sessions, 860 F.3d 58, 67–68 (2d Cir. 2017) (holding that jury instructions did not establish that statute was divisible because they included a blank with the word “specify“).
III.
Because