Julio Castillo v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1085
JULIO C. DAVID CASTILLO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 30, 2014 Decided: January 14, 2015
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
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.
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.
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:
2
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
3
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
1
By order dated December 22, 2014, we directed the
government to release Castillo from custody, indicating that
this decision would provide the reasons for our order. In
considering this appeal, we observe that judicial review is
generally precluded in cases involving aliens who are removable
as aggravated felons. 8 U.S.C. § 1252 (a)(2)(C); Kporlor v.
Holder, 597 F.3d 222, 225-26 (4th Cir. 2010). However, we
retain jurisdiction to review constitutional claims or questions
of law, including whether an underlying crime qualifies as an
aggravated felony. 8 U.S.C. § 1252(a)(2)(D); Soliman v.
Gonzales, 419 F.3d 276, 280 (4th Cir. 2005).
4
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
5
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 (1984)); see also INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (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). 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.
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
6
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
7
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 (2007); Burke v. Mukasey,
2
We observe that in Gonzales v. Duenas-Alvarez, 549 U.S.
183 (2007), the Supreme Court did not adopt the BIA’s definition
of a theft offense, but instead explained that many circuit
courts had accepted that definition. Id. at 189. Based on the
question presented in Duenas-Alvarez, namely, whether aiding and
abetting a theft offense qualifies as a theft offense, it was
not necessary for the Court to review the reasonableness of the
BIA’s definition.
8
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 States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.
2001); see also Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013)
(adopting the BIA’s definition of “theft offense” as stated in
VZS); Almeida v. Holder, 588 F.3d 778, 784-85 (2d Cir. 2009)
(same); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353
(11th Cir. 2005) (same). Because the BIA applied this
definition in the present case, we likewise consider the same
definition in this appeal. However, we are not required to
decide whether the BIA’s definition constitutes a reasonable
construction of Subsection G because, for purposes of our
analysis, the Virginia crime of unauthorized use does not
qualify as a “theft offense” even under this definition.
Accordingly, we apply here the BIA’s definition, namely, “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.” See Garcia-Madruga, 24 I. & N.
Dec. at 440; see also VZS, 22 I. & N. Dec. at 1345-46.
B.
We turn to consider whether a Virginia conviction for
unauthorized use qualifies as an aggravated felony “theft
9
offense” under the above definition. We consider this legal
question de novo. Karimi v. Holder, 715 F.3d 561, 566 (4th Cir.
2013).
To determine whether a particular state offense constitutes
an aggravated felony under the INA, we employ a categorical
approach. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013); Garcia v. Holder, 756 F.3d 839, 843 (5th Cir. 2014).
Under this approach, we compare the aggravated felony definition
of “theft offense” with the elements of the state crime at
issue, Virginia unauthorized use. Descamps v. United States,
133 S. Ct. 2276, 2283-84 (2013) (citing Taylor v. United States,
495 U.S. 575 (1990)). “[A] state offense is a categorical
match” with a federal offense “only if a conviction of the state
offense necessarily involved facts equating to the generic
federal offense.” Moncrieffe, 133 S. Ct. at 1684 (citation,
internal quotation marks, and alterations omitted). Therefore,
in conducting this review, we focus on the minimum conduct
necessary for a violation of the state statute, while ensuring
that there is a “realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Duenas-
Alvarez, 549 U.S. at 193. Additionally, “[t]o the extent that
the statutory definition of the prior offense has been
10
interpreted” by the state’s appellate courts, 3 “that
interpretation constrains our analysis of the elements of state
law.” See United States v. Aparicio-Soria, 740 F.3d 152, 154
(4th Cir. 2014) (en banc).
C.
With this legal framework in mind, we turn to consider the
elements of the Virginia statutory crime of unauthorized use,
both with regard to the statutory language and to the manner in
which the crime has been interpreted by Virginia’s appellate
courts. The Virginia unauthorized use statute prohibits in
relevant part (1) the taking, driving, or use of another’s
vehicle, (2) without consent of the owner, and (3) with the
intent to temporarily deprive the owner of his possession of the
vehicle but without intent to steal the vehicle. Va. Code
3
This Court has deferred to statutory interpretation
conducted by the “state’s highest court.” United States v.
Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc).
However, when the state’s highest court has not engaged in such
statutory interpretation, a “state’s intermediate appellate
court decisions ‘constitute the next best indicia of what state
law is,’ although such decisions ‘may be disregarded if the
federal court is convinced by other persuasive data that the
highest court of the state would decide otherwise.’” Liberty
Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th
Cir. 1992) (quoting 19 Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4507 (1982)).
Further, as explained below, the Supreme Court of Virginia has
relied on the analysis conducted by the Court of Appeals of
Virginia in Overstreet v. Commonwealth, 435 S.E.2d 906 (Va. Ct.
App. 1993), with regard to consensual use takings that qualify
as unauthorized use offenses. See Tucker v. Commonwealth, 604
S.E.2d 66 (Va. 2004).
11
§ 18.2-102; see Reese v. Commonwealth, 335 S.E.2d 266, 267 (Va.
1985).
A review of the decisions in Virginia addressing
unauthorized use shows that convictions under the statute arise
from a broad range of circumstances. Convictions have resulted
in certain cases from conduct involving obvious trespassory
takings in which the defendant’s conduct demonstrates a clear
intent to deprive the owner of the use of his property. See
Hewitt v. Commonwealth, 194 S.E.2d 893 (Va. 1973) (affirming
defendant’s conviction for unauthorized use when defendant
participated in “hotwiring” a stranger’s parked car and used the
car for one night). However, unauthorized use convictions also
have resulted from conduct involving takings when an owner
initially has given a defendant consent to use the property.
See Tucker v. Commonwealth, 604 S.E.2d 66 (Va. 2004) (conviction
upheld when defendant was permitted to use the owner’s car to
drive to a restaurant but kept the car for several days); Eley
v. Commonwealth, 1997 Va. App. LEXIS 146, at *4 (Va. Ct. App.
Mar. 11, 1997) (explaining that a prima facie case of
unauthorized use is established when “the evidence shows that
the borrower’s use of the vehicle exceeded the scope and
duration of the owner’s consent”).
In a frequently cited case in the context of consensual
use, Overstreet v. Commonwealth, the defendant was permitted to
12
borrow a vehicle during a 30-minute lunch break, but kept the
vehicle beyond that time and was apprehended while driving the
vehicle about 14 hours later. 435 S.E.2d 906 (Va. Ct. App.
1993). The Court of Appeals of Virginia (the Virginia court)
explained that when the defendant exceeded the scope and
duration of the owner’s authorization, the defendant committed a
trespassory taking and violated the owner’s possessory right
under the statute. Id. at 908; see also Montague v.
Commonwealth, 579 S.E.2d 667, 670 (Va. Ct. App. 2003) (stating
that proof of a statutory violation requires that a defendant
“knew he was not authorized to use the vehicle”).
The Virginia court emphasized in Overstreet the broad range
of conduct encompassed by unauthorized use statutes such as
Virginia Code § 18.2-102. The court observed that, under such
statutes, a crime “may be committed by an employee of the owner
of a motor vehicle in using the vehicle for his own purposes not
connected with the purposes for which the vehicle had been
entrusted to him or in using the vehicle contrary to the
instructions of the owner.” Overstreet, 435 S.E.2d at 908(citation omitted). The Virginia court further explained that
when “an act violates the specific scope or duration of consent
to use a vehicle, a trespassory taking contemplated by Code
§ 18.2-102 occurs.” Id.
13
Under this reasoning, Virginia law, as articulated by the
state’s appellate courts, permits a conviction for unauthorized
use when an owner authorizes an individual to use the owner’s
vehicle for a stated purpose, but the individual uses the
vehicle for a different purpose even if within the timeframe and
other specifications of the authorized use. Such a situation
occurred in Medlin v. Commonwealth, 2004 Va. App. LEXIS 527 (Va.
Ct. App. Nov. 9, 2004).
There, an employee’s conviction for unauthorized use was
upheld based on his use of the employer’s vehicle in a manner
not specifically authorized when the vehicle was entrusted to
him, even though the employer customarily authorized employees
to use the vehicle in the same manner. Id. The situation in
that case arose when the employer authorized the defendant to
drive the employer’s tow truck to obtain some medicine, but
further instructed the defendant to take the truck home and
“park it.” Id. at *2. During that night, however, the
defendant used the vehicle to tow another truck without
notifying his employer in advance. Id. at *2-3.
The employer testified that he often permitted employees to
take the tow trucks to their homes, and also permitted employees
on those occasions to use the tow trucks to perform private
towing services on their “nights off,” provided that the
employees contacted the employer before using the tow truck for
14
such purposes. Id. at *3. The Virginia court upheld the
conviction on the basis that the defendant operated the tow
truck for towing services without contacting the employer in
advance, thereby exceeding the scope of the specifically
authorized use. Id. at *6-7.
The decision in Medlin demonstrates that the Virginia crime
of unauthorized use encompasses a defendant’s use of a vehicle
in a manner not specifically authorized by its owner, even if
such use is consistent with the owner’s general policy regarding
use, occurs during the period the vehicle is entrusted to the
defendant, and results in no damage to the vehicle. Thus,
violations of the Virginia unauthorized use statute can and do
arise based on circumstances in which the defendant’s use of
property deviates only slightly from the specific scope of
consensual use, resulting in an insignificant effect on
ownership interests. 4 These circumstances stand in stark
contrast to crimes involving the intentional, nonconsensual
takings that typically involve significant impairment of
ownership rights and damage to the property as described by the
4
We observe that our discussion of “de minimis
deprivations” focuses on the degree and the effect of the
deprivation of an owner’s interest in his property, rather than
merely on the duration of the unauthorized use of that property.
15
BIA in its elaboration of the term “theft offense.” See VZS, 22
I. & N. Dec. at 1349.
Given the application of the Virginia unauthorized use
statute to even de minimis deprivations of ownership interests,
we conclude that the statute covers circumstances typically
viewed as “glorified borrowing,” which the BIA has determined
fall outside the definition of a “theft offense.” See id. at
1346. Therefore, the BIA’s conclusion that Virginia
unauthorized use is a “theft offense” is erroneous as a matter
of law because the BIA focused solely on the statutory language
and disregarded the fact that Virginia’s courts have held even
de minimis deprivations of ownership interests to be statutory
violations. 5 See Aparicio-Soria, 740 F.3d at 154. Accordingly,
we hold that because there is “a realistic probability” Virginia
would apply its unauthorized use statute to conduct that falls
outside the BIA’s definition of “theft offense,” see Duenas-
5
We additionally observe that the government’s position
fails to recognize a procedural mechanism in Virginia in which
trial courts have the discretion to continue a felony case for
future disposition, place conditions of conduct on the
defendant, and ultimately dismiss the case if the defendant has
complied with the court’s prescribed conditions. See Hernandez
v. Commonwealth, 707 S.E.2d 273 (Va. 2011). Although the
existence of this procedural mechanism does not directly impact
our analysis in the present case, the mechanism provides a
probable explanation for the paucity of appellate decisions
addressing de minimis takings in violation of the Virginia
unauthorized use statute.
16
Alvarez, 549 U.S. at 193, Virginia unauthorized use does not
qualify categorically as an “aggravated felony” under Subsection
G. 6
III.
Because the BIA erred as a matter of law in determining
that Castillo previously had been convicted of an “aggravated
felony” within the meaning of Subsection G, we grant Castillo’s
petition for review and vacate the order for his removal. 7
PETITION FOR REVIEW GRANTED
AND ORDER OF REMOVAL VACATED
6
Additionally, we recently held that the Virginia crime of
larceny does not qualify as a “theft offense” within the meaning
of Subsection G. Omargharib v. Holder, No. 13-2229, ___ F.3d
___ (4th Cir. Dec. 23, 2014). Although the rationale employed
in Omargharib is not directly applicable to the present case, we
observe that courts in Virginia have described unauthorized use
as a “lesser included” offense of larceny. Tucker, 604 S.E.2d
at 68 (citing Hewitt, 194 S.E.2d at 894). Thus, under the BIA’s
decision in the present case, an anomalous and unreasonable
result would occur if a conviction of the “lesser” crime of
unauthorized use formed the basis for removability under
Subsection G, while the greater crime of larceny would not.
7
Contrary to the government’s assertion that we should
remand for consideration whether to apply the modified
categorical approach, the Supreme Court’s decision in Descamps
made clear that this approach applies only to divisible
statutes. 133 S. Ct. at 2283. A statute is divisible only when
it contains one or more alternative elements. Id. at 2283-84.
Although the Virginia unauthorized use statute details various
means of committing the crime, the statute does not list
alternative elements creating different crimes. Thus, the
modified categorical approach is wholly inapplicable here.
17