http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf
PANEL:
GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.
OPINION BY: JUDGE KING
“In these circumstances, we must assess whether a Virginia statutory burglary constitutes an aggravated felony using the categorical approach. See Omargharib, 775 F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary statute is broader than the federal crime of generic burglary. In Taylor, the Supreme Court included in its definition of a generic burglary “an unlawful or unprivileged entry” into “a building or other structure,” and explained that state burglary statutes that “eliminat[e] the requirement that the entry be unlawful, or . . . includ[e] places, such as automobiles and vending machines, other than buildings,” fall outside the definition of generic burglary. See 495 U.S. at 598-99. As we noted above, the Virginia burglary statute is satisfied by various alternative means of entry, including one’s entry without breaking or one’s concealment after lawful entry. By proscribing such conduct, the statute falls outside the scope of generic burglary. The Virginia burglary statute also reaches several places that are not buildings or structures, such as ships, vessels, river craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the breadth of the statute means that it falls outside the definition of an aggravated felony. See In re H-M-F, __ I. & N. Dec. __ (BIA Mar. 29, 2017). Utilizing the categorical approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. The DHS therefore erred in classifying Castendet’s conviction as an aggravated felony.”
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Could the wheels be starting to come off the DHS’s “Expedited Removal Machine” before it even gets up to full throttle?
PWS
04-27-17
CAIR Coalition congratulates pro bono lead counsel Michael Huston at Gibson, Dunn & Crutcher for winning the argument at the Fourth Circuit Court of Appeals that Virginia statutory burglary is not an aggravated felony theft or burglary offense and is indivisible. This means that no future noncitizen can ever again be deported or barred from a defense to deportation for having a Virginia burglary conviction categorized by the government as an aggravated felony theft or burglary offense.
The case involved a young man who was deported without getting to present his case in immigration court. He was denied the chance to argue this case because he was in a fast-track form of deportation known as “administrative removal.” When he appealed his case after being deported and having no other way back into the United States, the government revoked his deportation order in an attempt to deprive him of his appeal. In most of the country, federal appeals courts have not heard appeals of these administrative deportation orders if the government attempts to evade the appeals court by withdrawing that underlying deportation order. Thanks to this case, Castendet-Lewis v. Sessions, No. 15-2484 (4th Cir. April 25, 2017), the Fourth Circuit is also now one of only two circuits that has ruled it does have such appeal authority in this type of case (the other court being the Third Circuit).
Countless future noncitizens facing detention and deportation in these circumstances will benefit from this wide-reaching holding. Many kudos to Michael Huston for successfully securing this impactful decision!
Please see the below link for a link to a blog post about the impact of this case.
https://www.caircoalition.org/2017/04/26/gibson-dunn-crutcher-wins-at-the-fourth-circuit
Thanks for the very informative comment and link, Adina.
Due Process Forever!
Best wishes,
Paul