Castendet-Lewis v. Sessions III, No. 15-2484 (4th Cir. 2017)Annotate this Case
Petitioner, a native of Panama and admitted to the United States on a B-2 visitor visa, was subjected to expedited removal proceedings because he was not lawfully admitted for permanent residence and his burglary offense was an aggravated felony for purposes of immigration law. Petitioner unsuccessfully sought review in the immigration court, petitioned for review, and was then removed. Following the DHS's subsequent cancellation of petitioner's removal order, the Attorney General moved in this Court to dismiss petitioner's petition for review. The court denied the Attorney General's renewed motion to dismiss, concluding that the court was not stripped of jurisdiction in a pending case simply by writing "cancelled" on a removal order the DHS has sued to remove an alien, and the court declined to dismiss the petition on mootness grounds. The court found that the Attorney General waived his remaining arguments. On the merits, the court concluded that the offense of statutory burglary in Virginia does not constitute an aggravated felony for purposes of immigration law. The court concluded that the Virginia burglary statute is indivisible, and application of the modified categorical approach is inappropriate. Using the categorical approach, the court concluded that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. Therefore, the DHS erred in classifying petitioner's conviction as an aggravated felony. The court granted the petition for review, vacated, and remanded.