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Media Alerts - Castillo v. Holder -- Fourth Circuit
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April 4, 2015
  Castillo v. Holder -- Fourth Circuit
Headline: State Offense of "Glorified Borrowing" Did Not Authorize Removal of Lawful Permanent Resident

Areas of Law: Immigration, Criminal

Issue Presented: Whether Castillo's "unauthorized use conviction" under the Virginia Code qualified as a "theft offense" under 8 U.S.C. § 1101(a)(42)(G), and thus was an "aggravated felony" qualifying him for removal under the Immigration and Nationality Act.

Brief Summary: Julio Castillo, a citizen of Honduras, came to the United States as a lawful permanent resident in 1982. In 1995, Castillo was convicted in Virginia of unauthorized use of a motor vehicle under Va. Code § 18.2-102 and sentenced to serve a term of eighteen months' imprisonment. In January, 2012, the Department of Homeland Security (DHS) initiated removal proceedings against Castillo under 8 U.S.C. § 1227(a)(2)(A)(iii), which authorizes the removal of "[a]ny alien who is convicted of an aggravated felony at any time after admission." Included in the definition of "aggravated felony" is a "theft offense . . . for which the term of imprisonment [was] at least one year." § 1101(a)(43)(G) ("Subsection G"). DHS argued, and the Immigration Judge (IJ) agreed, that the Virginia offense of unauthorized use qualified as a "theft offense" under Subsection G. The Board of Immigration Appeals (BIA) agreed with the IJ and Castillo filed a petition for review of the BIA's decision with the United States Court of Appeals for the Fourth Circuit

On appeal, Castillo argued that the Virginia unauthorized use offense was distinguishable from the theft offense under Subsection (G) because in Virginia, unauthorized use includes de minimis deprivations of ownership interests and such de minimis deprivations are expressly excluded from the BIA's definition of a theft offense. As the Immigration and Nationality Act does not define the term "theft offense," the Fourth Circuit granted "substantial deference" to the BIA's statutory interpretation of the term. The definition of "theft offense" that the BIA applied to the present case was "the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent." Turning to the Virginia unauthorized use offense, the Fourth Circuit considered the minimum conduct necessary for a violation of the state statute, and considered whether that conduct would satisfy the BIA's definition of "theft offense." In Virginia, the state's appellate courts have upheld convictions for unauthorized use for conduct ranging from a taking with clear intent to deprive to a taking where the defendant initially had consent from the owner to use the property to other minimal, but overextended, uses beyond the owner's authorization. The Fourth Circuit concluded that the offense for unauthorized use included conduct typically viewed as "glorified borrowing" and such conduct was specifically excluded from the BIA's definition of theft offense. Accordingly, the Fourth Circuit vacated the order for Castillo's removal.

To read the full text of this opinion, please click here.

Panel: Judges Duncan, Keenan, and Diaz

Argument Date: 10/30/2014

Date of Issued Opinion: 01/14/15

Docket Number: No. 14-1085

Decided: Petition for review granted and order of removal vacated by published opinion.

Case Alert Author: Megan Raker, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Ellis Charles Baggs, BAGGS LAW GROUP, PLC, Mechanicsville, Virginia, for Petitioner. Nicole J. Thomas-Dorris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Aimee J. Carmichael, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Judge Keenan

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 02:34 PM     4th Circuit  

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