Daniel Castendet-Lewis v. Jefferson Sessions III
2017 U.S. App. LEXIS 7250
4th Cir.2017Background
- Petitioner Daniel Jorge Castendet-Lewis, a Panamanian who entered the U.S. on a B-2 visa and overstayed, pleaded guilty in Virginia (2013) to statutory burglary (Va. Code § 18.2-91) and received a suspended five-year sentence.
- DHS initiated expedited removal under 8 U.S.C. § 1228(b), treating the Virginia statutory burglary as an aggravated felony (8 U.S.C. § 1101(a)(43)(G)); DHS issued a Final Administrative Removal Order and removed Castendet to Panama.
- Castendet obtained a reasonable-fear referral and applied for withholding/CAT relief; IJs and the BIA denied relief and declined to reach the aggravated-felony question in expedited removal, prompting a petition for review to the Fourth Circuit.
- After Castendet filed his petition for review, DHS cancelled the Removal Order; the Attorney General moved to dismiss the petition as moot or jurisdictionally defective, arguing DHS authority to cancel.
- The Fourth Circuit denied the motion to dismiss, held the cancellation did not divest the court of jurisdiction, and addressed the merits: whether Virginia statutory burglary qualifies as a federal aggravated felony under the categorical approach.
Issues
| Issue | Castendet's Argument | Sessions (Government) Argument | Held |
|---|---|---|---|
| Whether DHS cancellation of a removal order moots or defeats appellate jurisdiction | Cancellation cannot strip a court of appeals of jurisdiction over a removal order used to remove petitioner; dismissal is improper | DHS cancellation extinguishes the final order and thus divests appellate jurisdiction; regulations authorize cancellation | Court rejects dismissal: jurisdiction existed when petition filed; cancellation does not bar review; mootness rejected because collateral consequences and risk of recurrence remain |
| Whether Va. statutory burglary is an "aggravated felony" (categorical inquiry) | The statute is broader than generic burglary and therefore not an aggravated felony under the categorical approach | The conviction qualifies as an aggravated felony; statute divisible so modified categorical approach applies | Court holds statute is broader than generic burglary and not an aggravated felony; conviction does not qualify |
| Whether Va. burglary statute is divisible (permitting modified categorical approach) | The statute lists alternative factual means (indivisible); modified categorical approach inappropriate | The statute is divisible as to locational/means elements; modified categorical approach permissible | Court holds statute is indivisible (Mathis governs): listed alternatives are means, not elements, so modified categorical approach is inapplicable |
| Whether precedent (United States v. Foster) controls post-Mathis analysis | Foster’s reasoning is superseded by Mathis; cannot treat enumerated means as elements | Foster supports divisibility and application of modified categorical approach | Court declines to follow Foster to the extent it conflicts with Mathis; Mathis controls divisibility analysis |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (definition and scope of generic burglary for categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (limits and purpose of the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (elements vs. means; divisibility analysis)
- United States v. Foster, 662 F.3d 291 (4th Cir. decision on Virginia burglary divisibility, reconsidered in light of Mathis)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir. on applying categorical approach to aggravated-felony determinations)
- Mbea v. Gonzales, 482 F.3d 276 (4th Cir. standard of review for aggravated-felony questions)
- Smith v. Ashcroft, 295 F.3d 425 (collateral consequences can preserve Article III review despite removal)