Argued: January 24, 2017
Petition for Review of an Order of the Board of Immigration
Michael Robert Huston, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Petitioner.
Alexander Palau, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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.
GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior
for review granted; vacated and remanded by published
opinion. Judge King wrote the opinion, in which Chief Judge
Gregory and Senior Judge Davis joined.
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.
was born in Panama on February 4, 1994. 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
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
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.
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. 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.
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
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").
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 §
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
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
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. §
17, 2016, six months after removing Castendet to Panama, the
DHS cancelled his Removal Order. 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 -