Castillo v. Holder

• Decision Date: 14 January 2015
• Docket Number: No. 14–1085.,14–1085.
• Parties: Julio C. David CASTILLO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

776 F.3d 262

Julio C. David CASTILLO, Petitioner

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 14–1085.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 30, 2014.

Decided: Jan. 14, 2015.

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.

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Opinion

Petition for review granted and order of removal vacated by published opinion. Judge KEENAN wrote the opinion, in which Judge DUNCAN and Judge DIAZ joined.

BARBARA MILANO KEENAN, Circuit Judge:

Julio C. David Castillo, a citizen of Honduras, filed this petition seeking review of a decision by the Board of Immigration Appeals (BIA) dismissing Castillo's appeal from an immigration judge's order of removal. The BIA determined that Castillo was removable based on his conviction in 1995 of unauthorized use of a motor vehicle, in violation of Virginia Code § 18.2–102. The BIA held that this offense qualified as an “aggravated felony” under the category of “theft offense” as listed in 8 U.S.C. § 1101(a)(43)(G). Upon our review, we disagree with the BIA's conclusion and hold that Castillo's conviction did not constitute an “aggravated felony,” because the full range of conduct covered by the Virginia crime of “unauthorized use” does not qualify as a “theft offense,” as that term has been defined by the BIA. We therefore grant Castillo's petition for review and vacate the order of removal.

I.

Castillo entered the United States as a lawful permanent resident in July 1982, when he was about 11 years old. In 1995, Castillo was convicted in a Virginia state court of unauthorized use of a motor vehicle, in violation of Virginia Code § 18.2–102 (unauthorized use). That statute states, in relevant part:

Any person who shall take, drive or use any ... vehicle ... not his own, without the consent of the owner [ ] and in the absence of the owner, and with intent temporarily to deprive the owner [ ] of his possession [ ], without intent to steal the same, shall be guilty of a Class 6 felony ... [unless] the value of such ... vehicle ... shall be less than $200, such person shall be guilty of a Class 1 misdemeanor.

Va.Code § 18.2–102 (unauthorized use statute). The Virginia court sentenced Castillo to serve a term of 18 months' imprisonment, with all but 35 days suspended.

In January 2012, the Department of Homeland Security (DHS) issued a “notice to appear,” and initiated removal proceedings against Castillo based on 8 U.S.C. § 1227(a)(2)(A)(iii), which authorizes the Attorney General to remove “[a]ny alien who is convicted of an aggravated felony at any time after admission.” DHS contended that Castillo's unauthorized use conviction in 1995 qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G), because the crime was “a theft offense ... for which the term of imprisonment [was] at least one year.” § 1101(a)(43)(G) (Subsection G).

Although Castillo conceded that the sentence for his unauthorized use conviction exceeded the one-year requirement of Subsection G, he disputed that his conviction qualified as a “theft offense.” The immigration judge (IJ) rejected Castillo's argument, holding that Castillo was removable because the Virginia offense of unauthorized use necessarily proscribed conduct that qualified as a “theft offense” under Subsection G.

On appeal from the IJ's decision, the BIA reviewed the statutory language in Virginia Code § 18.2–102, and concluded that the statutory elements of unauthorized use “essentially mirror[ed]” the BIA's previously adopted definition of “theft offense,” which included the taking of property with the “intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Accordingly, the BIA dismissed Castillo's appeal. Castillo later filed this petition for review of the BIA's decision.¹

II.

On appeal, Castillo contends that the BIA erred in holding that his unauthorized use conviction qualified as a “theft offense” under Subsection G. Castillo asserts that the BIA failed to recognize an essential aspect of the Virginia crime of unauthorized use, which distinguishes that crime from a “theft offense” under Subsection G. According to Castillo, the temporary deprivation of possession encompassed by the Virginia unauthorized use statute necessarily includes de minimis deprivations of ownership interests, while such de minimis deprivations expressly are excluded from the BIA's definition of a “theft offense.” Thus, Castillo submits that the Virginia crime of unauthorized use is not a “theft offense” under the BIA's definition.

In response, the government argues that the BIA correctly determined that the elements of unauthorized use in Virginia are a “categorical match” to the elements of a “theft offense” as defined by the BIA. The government further maintains that Castillo has presented only a theoretical possibility that the Virginia statute would be applied to conduct resulting in de minimis deprivations of an owner's interest in property. We disagree with the government's position.

A.

Under the Immigration and Nationality Act (INA), a non-citizen is removable if he is “convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines “aggravated felony” by enumerating a long list of crimes, including murder, rape, sexual abuse of a minor, drug and firearm trafficking, and fraud offenses in which the loss exceeds $10,000. See 8 U.S.C. § 1101(a)(43). Also among these listed crimes is a “theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [was] at least one year.” 8 U.S.C. § 1101(a)(43)(G). The INA does not define the term “theft offense.”

We have held that substantial deference is owed to the BIA's statutory interpretation of the term “theft offense” in Subsection G. Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir.2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ); see also INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (explaining that Chevron deference applies when the BIA “gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication”) (internal quotation marks and citations omitted). Such deference is accorded based on the agency's responsibility to administer the INA. Soliman, 419 F.3d at 281 (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778 ). Under the holding in Chevron, we are required to accept the BIA's construction of an otherwise silent or ambiguous statute, unless such construction is “arbitrary, capricious, or manifestly contrary to the statute.” 467 U.S. at 843–44, 104 S.Ct. 2778.

The BIA's principal decision interpreting the term “theft offense” is In re V–Z–S–, 22 I. & N. Dec. 1338 (BIA 2000) (VZS ). In VZS, which the BIA cited in the case before us, the BIA considered whether the “unlawful driving or taking of a vehicle,” in violation of California law, was a “theft offense” within the meaning of Subsection G. Id. at 1346–47. The BIA categorized the California crime as a “theft offense,” even though the California statute did not require an intent to permanently deprive the owner of the property, as would be required for common law larceny. See id. at 1347–48 (citing Cal. Vehicle Code § 10851(a), which included as an element the intent “either to permanently or temporarily deprive the owner” of his “title to or possession of the vehicle, whether with or without intent to steal”).

The BIA reached this conclusion in VZS after determining that “Congress' use of the term ‘theft’ is broader than the common-law definition” of larceny. Id. at 1345–36. The BIA thus construed the term “theft offense” to encompass the taking of property when “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.” Id. at 1346. Notably, however, in articulating this construction of the statute, the BIA emphasized that “[n]ot all takings of property ... will meet this standard[,] because some takings entail a de minimis deprivation of ownership interests” and constitute only a “glorified borrowing” of property. Id. By this language, the BIA explicitly acknowledged that not all takings of property will constitute “theft offenses” under the INA.

Five years after the BIA issued its decision in VZS, this Court considered the meaning of the term “theft offense” as used in Subsection G. We held that Congress intended qualifying crimes to include an element of taking of property “without consent,” and to exclude the circumstance of obtaining property by fraud. Soliman, 419 F.3d at 283. Based on our decision in Soliman and certain other circuit court decisions, the BIA refined its definition of “theft offense” for purposes of Subsection G, clarifying that this term “consists of 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.” In re Garcia–Madruga, 24 I. & N. Dec. 436, 440 (BIA 2008).

This definition of “theft offense” has been applied by the Supreme Court and by many of our sister circuits.² See Gonzales v. Duenas–Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ; Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.2007) ; United States v. Corona–Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc); Hernandez–Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001) ; United...