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Immigration – Va. Burglary Crime Not ‘Aggravated Felony’

Castendet-Lewis v. Sessions (Lawyers Weekly No. 001-092-17, 20 pp.) (King, J.) No. 15-2484, April 25, 2017; On Petition for Review; 4th Cir.

Holding: Even though the Department of Homeland Services cancelled a removal order to deport petitioner to Panama, the 4th Circuit has jurisdiction to review his petition and vacates the removal order because petitioner’s prior Virginia conviction for statutory burglary was not an aggravated felony.


We begin with the Attorney General’s renewed request for dismissal of the petition for review. The premise of that request is that we cannot review the removal order because the DHS has cancelled it.

The Attorney General maintains that we lack jurisdiction because a final order of removal does not exist. Our jurisdiction stems from 8 U.S.C. § 1252(a)(1), which provides that a court of appeals may review a “final order of removal.” According to the Attorney General, the DHS’s cancellation of the removal order rendered that order nonexistent and unreviewable. That proposition, however, ignores the facts in these proceedings. The DHS removed petitioner pursuant to the removal order, as to which he then sought review. We possessed § 1252(a)(1) jurisdiction when petitioner filed his petition for review. The DHS thereafter cancelled the removal order. We know of no authority of the DHS – and none has been presented here – to strip us of jurisdiction in a pending case simply by writing “cancelled” on a removal order the DHS has used to remove an alien.

We disagree that the cancellation of the removal order has mooted this matter because petitioner is no longer subject to removal. The DHS classification of petitioner as an aggravated felon spawns collateral consequences unrelated to the removal order, and this proceeding has not been mooted since the DHS’ challenged conduct could be repeated. We decline to dismiss the petition on mootness grounds.

Burglary Conviction

Petitioner’s removal order is predicated on 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that any alien who is convicted of an aggravated felony at any time after admission is deportable. An aggravated felony includes a burglary offense for which the term of imprisonment is at least one year.

Applying pertinent U.S. Supreme Court precedent, it is clear that the Virginia burglary statute is indivisible. The statute, Va. Code § 18.2-90, identifies four means of committing the requisite entry to sustain a statutory burglary conviction: entering without breaking in the nighttime; breaking and entering in the daytime; entering and concealing oneself in a dwelling house or an adjoined, occupied outhouse at any time; or entering and concealing oneself in a number of non-house locations. The foregoing are four distinct factual means of describing how the statutory offense of burglary can be committed – rather than different elements – because the Virginia courts analyze them interchangeably.

Also, the indictment against petitioner charged alternative factual means of committing statutory burglary, thereby belying the government’s contention that the Virginia burglary statute is divisible. We are satisfied that the Virginia burglary statute provides different factual means that constitute entry and location – not different elements. The statute thus is not divisible, and application of the modified categorical approach is inappropriate in connection therewith.

The Virginia burglary statute falls outside the scope of generic burglary. The breadth of the statute means that it falls outside the definition of an aggravated felony. We are also satisfied that the Virginia statute criminalizes more conduct than the generic federal offense of burglary. The DHS erred in classifying petitioner’s conviction as an aggravated felony.

Petition for review granted, vacated and remanded.

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