Castendet-Lewis v. Sessions, 15-2484

• Decision Date: 25 April 2017
• Docket Number: No. 15-2484,15-2484
• Citation: 855 F.3d 253
• Parties: Daniel Jorge CASTENDET-LEWIS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

855 F.3d 253

Daniel Jorge CASTENDET-LEWIS, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-2484

United States Court of Appeals, Fourth Circuit.

Argued: January 24, 2017

Decided: April 25, 2017

ARGUED: Michael Robert Huston, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Petitioner. Manuel Alexander Palau, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.

Petition for review granted; vacated and remanded by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Senior Judge Davis joined.

KING, Circuit Judge:

After pleading guilty to a statutory burglary offense in Virginia, Daniel Jorge Castendet-Lewis—a native of Panama admitted to the United States on a B-2 visitor visa in 2007—was subjected to so-called "expedited removal proceedings." The Department of Homeland Security (the "DHS") initiated those proceedings because Castendet was not lawfully admitted to this country for permanent residence and his burglary offense is, in the DHS's view, an aggravated felony for purposes of immigration law. Castendet unsuccessfully sought review in the immigration court of the DHS's aggravated felony determination, petitioned for our review, and then was removed to Panama. Following the DHS's subsequent cancellation of Castendet's removal order, the Attorney General moved in this Court to dismiss Castendet's petition for review. As explained below, we stand by a prior panel ruling denying the Attorney General's motion to dismiss, and we grant Castendet's petition for review, vacate the DHS's order of removal, and remand.

I.

A.

Castendet was born in Panama on February 4, 1994.¹ He grew up in Colon, where criminal activities were a substantial part of his life. Castendet's father, Jorge Daniel Castendet Marcia, was a police officer in the Noriega government. Marcia physically and psychologically abused Castendet, as well as other members of the family. Marcia also trafficked in drugs, accepted bribes, and provided weapons for illegal gangs. One of Castendet's brothers, Jorge Wilkerson, regularly joined his father in illegal pursuits that included drug trafficking.

Although Marcia did not live with Castendet, various associates of Marcia and Wilkerson—including corrupt police officers and members of a gang called the Cold Coffin Kids—were frequent visitors at Castendet's family home. They often came there to retrieve items containing illegal drugs. During such visits, Marcia and Wilkerson's criminal associates occasionally threatened Castendet and other family members. On one occasion, corrupt officers seized tires that Wilkerson had stored on the house balcony—tires that Castendet believed to contain drugs. Those officers threatened to harm Castendet and his family if they divulged what had occurred. Another time, a corrupt officer came to the home seeking electronic speakers in which Wilkerson had concealed drugs. When Castendet told the officer that Wilkerson had removed the speakers from the house, the officer threatened to hurt Castendet.

In 2006, the Cold Coffin Kids shot and killed one of Castendet's friends, a boy named Jack, while the pair were together walking home from school. Castendet believes that the gang killed Jack because Jack knew of the gang's activities from staying at Castendet's house. The Cold Coffin Kids left Castendet unharmed, but warned him that he "did not see anything, or else." See A.R. 268.²

On April 3, 2007, thirteen-year-old Castendet—along with his mother and younger brother—fled Panama and entered the United States on B-2 visitor visas.³ For nearly six years, Castendet did well in this country by attending school, joining a church, and spending time with more upstanding family members. Even here, however, criminal elements came to permeate Castendet's life. When Castendet was eighteen years old, on January 18, 2013, two of his friends—Ryan Rice and Malik Best—broke into the home of a Mrs. McCree in Newport News, Virginia. After pilfering several items, including Nike shoes and three watches, Rice and Best came to Castendet's home to conceal the stolen goods. The pair "told [Castendet] to come with them" and "see how [McCree] is living." See A.R. 668. After first declining to accompany Rice and Best to McCree's house, Castendet gave in to the peer pressure. He went with his friends to McCree's home and waited while Rice and Best went inside. At some point, Castendet also entered the McCree home and Rice stole a Dell laptop computer from it.

In early 2013, Castendet was arrested and indicted in Newport News for grand larceny and statutory burglary. On July 9, 2013, he pleaded guilty to the statutory burglary offense. See Va. Code § 18.2-91. Pursuant to his plea agreement with the state prosecutor, the grand larceny charge was dismissed. Two months later, on September 4, 2013, the state court sentenced Castendet to five years in prison with all five years suspended, essentially a sentence of time served.

B.

On September 6, 2013, two days after Castendet was sentenced, the DHS initiated its expedited removal proceedings against him. Those proceedings were conducted under 8 U.S.C. § 1228(b), which provides for the expedited removal of an alien not lawfully admitted for permanent residence who has been convicted of an aggravated felony as explained in 8 U.S.C. § 1227(a)(2)(A)(iii). The DHS contended that Castendet was subject to expedited removal because his Virginia statutory burglary offense qualifies as an aggravated felony. That same day, the DHS issued Castendet a Final Administrative Removal Order (the "Removal Order").

Castendet subsequently requested and received what is called a "reasonable fear interview." Following that interview, an asylum officer determined that Castendet possessed a reasonable fear of persecution or torture if he was removed to Panama. In January 2014, the asylum officer referred the matter to an immigration judge (an "IJ") for a withholding-only proceeding. Castendet then filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (the "CAT"). He contended therein that the DHS's Removal Order was improper, in that his Virginia statutory burglary offense is not an aggravated felony under § 1227(a)(2)(A)(iii).

On August 4, 2014, the IJ denied Castendet's applications for withholding of removal and protection under the CAT. The IJ also concluded that he lacked jurisdiction to consider Castendet's asylum application. Additionally, the IJ deemed himself unauthorized to assess Castendet's challenge to the DHS's categorization of his burglary offense as an aggravated felony. See Etienne v. Lynch , 813 F.3d 135, 138 (4th Cir. 2015) (concluding that alien in expedited removal proceedings can challenge legal basis for removal in appropriate court of appeals only).

Castendet promptly appealed to the Board of Immigration Appeals (the "BIA"). On January 26, 2015, the BIA ruled that Castendet was not entitled to challenge the legal basis of his removal—i.e., whether his burglary offense qualifies as an aggravated felony—because he had been placed in expedited removal proceedings. The BIA also agreed that the IJ lacked jurisdiction to consider Castendet's asylum application, but remanded for further consideration of Castendet's requests for withholding of removal and CAT protection.

At the conclusion of the remand proceedings, on June 22, 2015, a different IJ denied Castendet withholding of removal and CAT relief. Castendet again appealed to the BIA, which on October 27, 2015, again affirmed. On November 25, 2015, Castendet petitioned for our review, and he was thereafter removed to Panama. We possess jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).⁴

C.

On June 17, 2016, six months after removing Castendet to Panama, the DHS cancelled his Removal Order.⁵ Three days later, the Attorney General moved to dismiss Castendet's petition for review, making two contentions. The Attorney General first argued that cancellation of the Removal Order negated the "statutory basis for this Court's exercise of jurisdiction." See Motion to Dismiss, Castendet-Lewis v. Sessions , No. 15-2484, at 5 (4th Cir. June 20, 2016), ECF No. 23. Next, he contended that a regulatory provision—§ 238.1(d)(2)(iii) of Title 8 of the Code of Federal Regulations —vested the DHS with the authority to cancel the Removal Order.

Castendet opposed dismissal, contending that the DHS "does not have the authority to cancel a final administrative removal order" for the purpose of defeating the jurisdiction of a court of appeals. See Response in Opposition, Castendet-Lewis v. Sessions , No. 15-2484, at 1 (4th Cir. July 15, 2016), ECF No. 28. Castendet argued that we should reject the Attorney General's "transparent attempt to avoid judicial review in this case." Id. at 2. He urged us to adhere to an approach taken by the Third Circuit, which recently rejected similar efforts by the DHS to cancel removal orders and then have those cancellations used by the Attorney General to seek dismissal of petitions under review in that court of appeals. See Walker v. Att'y Gen. , 625 Fed.Appx. 87, 89 (3d Cir. 2015) ; Rodriguez-Celaya v. Att'y Gen. , 597 Fed.Appx. 79, 81 (3d Cir. 2015).

In September 2016, we denied the Attorney General's motion to dismiss the petition for review, observing that "we find no authority that would allow the DHS to cancel a final administrative removal order under the circumstances presented in this case." See Order, Castendet-Lewis v. Sessions , No. 15-2484, at 2 (4th Cir. Sept. 6, 2016), ECF No. 30 (the "Order Denying Dismissal"). The Attorney General nevertheless renewed his dismissal request in his response...