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Castillo v. Holder

United States Court of Appeals, Fourth Circuit

January 14, 2015

JULIO C. DAVID CASTILLO, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued: October 30, 2014.

Page 263

On Petition for Review of an Order of the Board of Immigration Appeals.

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. Judge Keenan wrote the opinion, in which Judge Duncan and Judge Diaz joined.

OPINION

Page 264

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 ...

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