By Andrew Kilpinen
Today, in Julio Castillo v. Eric Holder, Jr., the 4th Circuit vacated an order of removal finding that Castillo’s 1995 conviction of unauthorized use of a motor vehicle does not qualify categorically as an “aggravated felony” under the Immigration and Nationality Act (“INA”).
Castillo argued on appeal that his conviction for unauthorized use of a motor vehicle did not qualify as an “aggravated felony” because it is not a “theft offense.” The INA defines “aggravated felony” to include “theft offenses,” but does not define a “theft offense.”
The Board of Immigration Appeals (“BIA”) has interpreted “theft offenses” to “[consist] 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).
The 4th Circuit undertook a categorical analysis to determine if the underlying elements of the Virginia crime Castillo was convicted of constituted an “aggravated felony” under the INA. In essence, the 4th Circuit examined Virginia Appellate Court decisions to determine whether an individual could be realistically convicted under the elements of unauthorized use in Virginia while not satisfying the elements of “aggravated felony.”
The INA’s “theft offense” does not consider “glorified borrowing” a felony; however, the 4th Circuit found that the Virginia code could realistically impose a felony conviction for “glorified borrowing.” Therefore, the Court vacated Castillo’s removal order.
