The respondent in the case, a Mr. Solarzano, entered the U.S. in 1980 and became a lawful permanent resident in 1989, at approximately age 12.  In 1995 he was convicted of burglary under Illinois law and sentenced to 60 days’ imprisonment and 24 months’ probation, with community service, payment of fines, and restitution also required.  In 1998 the Illinois court revoked Solarzano’s probation because he failed to complete the community service and pay the fines, and sentenced him to three years’ imprisonment while recommending that as an alternative to penal incarceration he be enrolled in "boot camp."  This recommendation was denied because a detainer placed by the Immigration and Naturalization Service rendered him ineligible for the boot camp program.  During his incarceration, the INS issued a Notice to Appear against Solarzano, initiating removal proceedings.

In removal proceedings, the immigration judge found that Solarzano’s conviction constituted an aggravated felony, both as a "burglary offense" and as a "crime of violence."  The BIA affirmed the IJ’s decision, finding that the conviction "falls easily within the definition of a ‘burglary offense.’"  The BIA also concluded that the offense constitutes a crime of violence because "the burglary of a vehicle involves a substantial risk that physical force may be used against persons or property."  Solarzano filed a petition for review of the BIA’s decision.

In ruling on the petition for review, the court first found that although it would not have jurisdiction over the petition if Solarzano’s conviction constituted an aggravated felony, the court does have jurisdiction to rule on this question.  Thus, both the court’s jurisdiction and the resolution of the case on the merits depended on whether the offense qualified as an aggravated felony.

Turning to the question of whether the conviction constitutes a "burglary offense" under INA section 101(a)(43)(G), the court noted that states define criminal conduct in a great variety of ways.  Solarzano was charged with "knowingly entering a 1994 Ford Explorer belonging to [another without authority] with the intent to commit therein a theft" (verbatim quotation from the decision includes the bracketed insertion).  While this is classified a "burglary" under Illinois law, in Wisconsin it would constitute "entry into a locked vehicle," which is a misdemeanor punishable by no more than nine months’ imprisonment.  The court concluded that the INA’s use of the term "burglary" should be given a uniform interpretation and that "burglary" in its "generic sense" must "have the basic elements of unlawful entry into, or remaining in, a building or structure, with intent to commit a crime."  Because Solarzano entered a vehicle rather than a building, the Seventh Circuit held, the statute does not apply to him.

The court also rejected the BIA’s classification of the offense as a "crime of violence" under INA section 101(a)(43)(F).  The court found that the INA requires a use of force greater than "merely opening a car door" and that there must be a use of force that is "violent in nature."  Both criminal conduct that is violent in nature and conduct that is not are encompassed within the Illinois burglary statute under which Solorzano was convicted.  Therefore, the court ruled, it was improper for the BIA to conclude that, based solely on the language and title of the state law, Solorzano’s conviction constituted a crime of violence.

Accordingly, the court granted the petition for review, vacated the order of deportation, and remanded the case for further proceedings.  Solorzano was represented by Lisa Palumbo of the Legal Assistance Foundation of Chicago.