Fourth Circuit Win Changes Legal Landscape for Immigrant Defendants

April 25, 2017

​On April 25, 2017, the U.S. Court of Appeals for the Fourth Circuit vacated the order of removal of Gibson Dunn pro bono client Daniel Castendet-Lewis, a native of Panama who was deported after pleading guilty to Virginia statutory burglary. Growing up in Panama, Castendet-Lewis was repeatedly exposed to violence related to the criminal activities of his father and brother. He fled to the United States with his mother when he was 13.Though he was able to build a better life here, he was arrested and charged with burglary at age 18 after entering a house that his friends had broken into. He pleaded guilty and received only a suspended sentence, but the government initiated expedited removal proceedings on the argument that Virginia statutory burglary is an aggravated felony under the INA.

When Castendet-Lewis’s requests for administrative relief were denied, Gibson Dunn petitioned for review in the Fourth Circuit, urging that the removal order be vacated because Virginia statutory burglary is not an aggravated felony. The government responded by attempting to cancel the order of removal by handwriting the word "CANCELLED" on it (even though the government had already executed the order and removed Mr. Castendet-Lewis from the country), and then the government moved to dismiss the appeal for lack of jurisdiction. The Fourth Circuit denied the government’s motion to dismiss. The Fourth Circuit held, in a published opinion by Judge King, that (1) Virginia statutory burglary does not qualify as an "aggravated felony" triggering expedited removal under the Immigration and Nationality Act ("INA"); and (2) the government cannot defeat a court of appeals’ jurisdiction by purporting to "cancel" a removal order under review. The ruling will benefit numerous other immigrants (and federal criminal defendants).

Michael Huston briefed and argued the case, assisted by Kevin Barber and with guidance from Tom Dupree.