                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 15-2484


DANIEL JORGE CASTENDET-LEWIS,

                   Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                   Respondent.



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


Argued: January 24, 2017                                      Decided: April 25, 2017


Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit
Judge.


Petition for review granted; vacated and remanded by published opinion. Judge King
wrote the opinion, in which Chief Judge Gregory and Senior Judge Davis joined.


ARGUED: Michael Robert Huston, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Petitioner. Manuel Alexander Palau, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
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.
KING, Circuit Judge:

      After 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.



                                           I.

                                           A.

      Castendet was born in Panama on February 4, 1994. 1 He grew up in Colon, where

criminal activities were a substantial part of his life. Castendet’s father, Jorge Daniel


      1
       The facts recited herein are largely drawn from Castendet’s hearing testimony,
which was deemed credible in the immigration court.


                                           2
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 trafficking.

       Although 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 Castendet.

       In 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




                                             3
Castendet’s house. The Cold Coffin Kids left Castendet unharmed, but warned him that

he “did not see anything, or else.” See A.R. 268. 2

       On 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. 3 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.

       In 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


       2
         Citations herein to “A.R. __” refer to the contents of the Administrative Record
filed by the parties in this matter.
       3
         A B-2 visitor visa entitles an alien to enter this country for tourism, pleasure, or
visiting. Castendet thus entered the United States lawfully but overstayed his B-2 visitor
visa.


                                             4
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 served.

                                            B.

       On 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”).

       Castendet 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 § 1227(a)(2)(A)(iii).



                                            5
       On 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 only).

       Castendet 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 protection.

       At the 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. § 1252(a)(1). 4


       4
         Although Castendet has already been removed to Panama, he is entitled to
review in a court of appeals. See Carachuri-Rosendo v. Holder, 560 U.S. 563, 573 n.8
(2010).


                                              6
                                           C.

      On June 17, 2016, six months after removing Castendet to Panama, the DHS

cancelled his Removal Order. 5 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 — § 238.1(d)(2)(iii) of Title 8 of the Code of Federal Regulations —

vested the DHS with the authority to cancel the Removal Order.

      Castendet opposed dismissal, contending that the DHS “does not have the

authority to cancel a final administrative removal order” for the purpose of defeating the

jurisdiction of a court of appeals.   See Response in Opposition, Castendet-Lewis v.

Sessions, No. 15-2484, at 1 (4th Cir. July 15, 2016), ECF No. 28. Castendet argued that

we should reject the Attorney General’s “transparent attempt to avoid judicial review in

this case.” Id. at 2. He urged us to adhere to an approach taken by the Third Circuit,

which recently rejected similar efforts by the DHS to cancel removal orders and then

have those cancellations used by the Attorney General to seek dismissal of petitions


      5
         The DHS’s cancellation of the Removal Order followed our denial of the
Attorney General’s motion to remand. The Attorney General had moved for a remand to
the DHS for consideration of new authorities pertaining to whether Castendet’s statutory
burglary offense qualifies as an aggravated felony. We denied the Attorney General’s
motion. See Order, Castendet-Lewis v. Sessions, No. 15-2484 (4th Cir. May 13, 2016),
ECF No. 21. The Attorney General has not renewed the motion to remand.


                                            7
under review in that court of appeals. See Walker v. Att’y Gen., 625 F. App’x 87, 89 (3d

Cir. 2015); Rodriguez-Celaya v. Att’y Gen., 597 F. App’x 79, 81 (3d Cir. 2015).

       In September 2016, we denied the Attorney General’s motion to dismiss the

petition for review, observing that “we find no authority that would allow the DHS to

cancel a final administrative removal order under the circumstances presented in this

case.” See Order, Castendet-Lewis v. Sessions, No. 15-2484, at 2 (4th Cir. Sept. 6, 2016),

ECF No. 30 (the “Order Denying Dismissal”).             The Attorney General nevertheless

renewed his dismissal request in his response brief.



                                            II.

       We first assess — and deny — the Attorney General’s renewed motion to dismiss.

We then proceed to the merits of Castendet’s petition for review, which contends that his

burglary offense is not an aggravated felony.          Because we agree with Castendet’s

contention, we grant the petition. 6

                                            A.

       We begin with the Attorney General’s renewed request for dismissal of the

petition for review. The premise of that request is that we cannot review the Removal

Order because the DHS has cancelled it. In his initial motion to dismiss, the Attorney


       6
         By his petition for review, Castendet also asserts that both the IJ and the BIA
erroneously determined that he is not entitled to withholding of removal or CAT
protection. We need not reach or address those issues today. See Sotnikau v. Lynch, 846
F.3d 731, 735 n.2 (4th Cir. 2017).


                                             8
General raised only two contentions in support of dismissal — that we lack jurisdiction to

review a removal order cancelled by the DHS, and that § 238.1(D)(2)(iii) of Title 8 of the

Code of Federal Regulations authorizes the DHS to cancel a removal order.               The

Attorney General now advances a total of five grounds for dismissal, including the two

we already rejected.    His three new arguments are that the DHS has prosecutorial

discretion to cancel a removal order, the DHS has inherent authority to cancel a removal

order, and Castendet’s petition for review is moot in the absence of a removal order.

                                            1.

       We need only address one of the Attorney General’s restated contentions. We do

not reconsider the ruling of our Order Denying Dismissal that § 238.1(D)(2)(iii) fails to

authorize the DHS to cancel the Removal Order, as that ruling is the law of the case. See

United States v. Rosen, 557 F.3d 192, 199 (4th Cir. 2009) (explaining that earlier legal

ruling is binding through all subsequent stages of proceeding). We again assess the

Attorney General’s jurisdictional contention, however, because the law of the case

doctrine does not bar us “from revisiting a prior ruling of a motion panel on the Court’s

jurisdiction.” See CNF Constructors, Inc. v. Donohoe Const. Co., 57 F.3d 395, 397 n.1

(4th Cir. 1995).

       The Attorney General maintains that we lack jurisdiction because a final order of

removal does not exist.     Our jurisdiction stems from 8 U.S.C. § 1252(a)(1), which

provides that a court of appeals may review “a final order of removal.” According to the

Attorney General, the DHS’s cancellation of the Removal Order rendered the Removal

Order nonexistent and unreviewable. That proposition, however, ignores the facts in

                                            9
these proceedings. The DHS removed Castendet pursuant to the Removal Order, as to

which he then sought review. We possessed § 1252(a)(1) jurisdiction when Castendet

filed his petition for review. The DHS thereafter cancelled the Removal Order. We

know of no authority of the DHS — and none has been presented here — to strip us of

jurisdiction in a pending case simply by writing “cancelled” on a removal order the DHS

has used to remove an alien. 7

                                            2.

       Next, we address only one of the Attorney General’s three new contentions. He

has waived two of those arguments by not timely raising them in the motion to dismiss:

that the DHS has both the prosecutorial discretion and the inherent authority to cancel a

removal order. We nevertheless address the Attorney General’s mootness contention —

even though not raised in the motion to dismiss — because “the question of whether we

are presented with a live case or controversy is a question we may raise sua sponte since

mootness goes to the heart of the Article III jurisdiction of the courts.” See Friedman’s,

Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (internal quotation marks omitted).




       7
         The decisions relied on by the Attorney General for the proposition that we lack
jurisdiction are readily distinguishable. In Aguilar-Aguilar v. Napolitano, the Tenth
Circuit ruled that it could not review the DHS’s decision to terminate removal
proceedings and institute expedited proceedings because the IJ’s decision did not result in
a final order of removal. See 700 F.3d 1238, 1243 (10th Cir. 2012). Similarly, in
Galindo-Romero v. Holder, the Ninth Circuit dismissed the petition for review for lack of
jurisdiction because the challenged decisions did not result in an order of removal. See
640 F.3d 873, 877 (9th Cir. 2011).


                                            10
         The Attorney General maintains that the DHS’s cancellation of the Removal Order

has mooted this matter because Castendet is no longer subject to removal. We disagree

for two sound reasons. First, the DHS’s classification of Castendet as an aggravated

felon spawns collateral consequences unrelated to the Removal Order. See Smith v.

Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002) (“[T]hough [the petitioner] is no longer in the

United States, he is unmistakably affected by the legal implications of our decision. If he

prevails, there is a possibility he can beneficially unravel his untoward immigration

status.”). For example, Castendet’s status as an aggravated felon could preclude him

from ever receiving permission to reenter the United States.        See United States v.

Madrigal-Valadez, 561 F.3d 370, 373-74 (4th Cir. 2009) (rejecting mootness argument

because conviction could impact petitioner’s ability to reenter).

         Second, this proceeding has not been mooted because the DHS’s conduct under

challenge could be repeated. If Castendet reentered the United States, the DHS could

recommence its removal proceedings, likely on the premise that he is an aggravated

felon.    The Attorney General has not foreclosed the possibility of the DHS later

reasserting that Castendet is an aggravated felon. See Wall v. Wade, 741 F.3d 492, 497

(4th Cir. 2014) (“It is well established that a defendant’s voluntary cessation of a

challenged practice moots an action only if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur.” (internal

quotation marks omitted)). We therefore decline to dismiss Castendet’s petition on

mootness grounds, and the Removal Order yet exists.



                                            11
                                           B.

       Turning to the merits of Castendet’s petition for review, the dispositive issue is

whether the offense of statutory burglary in Virginia constitutes an aggravated felony for

purposes of immigration law. Whether a crime is an aggravated felony is a question of

law that we review de novo. See Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2007).

                                            1.

       Castendet’s Removal Order is predicated on 8 U.S.C. § 1227(a)(2)(A)(iii), which

provides that “[a]ny alien who is convicted of an aggravated felony at any time after

admission is deportable.”    An “aggravated felony” includes, inter alia, a “burglary

offense for which the term of imprisonment [is] at least one year.”        See 8 U.S.C.

§ 1101(a)(43)(G).

       To determine whether a state offense qualifies as an aggravated felony, we

generally utilize the “categorical approach” described by the Supreme Court in Taylor v.

United States, 495 U.S. 575 (1990), and Descamps v. United States, 133 S. Ct. 2276

(2013). See Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). Under the

categorical approach, we will consider only the elements of the offense of conviction, not

the underlying conduct. Id. If the offense of conviction has the same elements as the

generic federal offense, then the offense of conviction qualifies as an aggravated felony.

Id.   But, if the offense of conviction “sweeps more broadly and criminalizes more

conduct than the generic federal crime,” then the offense of conviction is not an

aggravated felony — even if the defendant actually committed that offense in its generic

form. Id. (internal quotation marks omitted).

                                           12
       The Attorney General contends, however, that Virginia statutory burglary is a

“divisible offense,” requiring us to apply the “modified categorical approach.” The

modified categorical approach “helps implement the categorical approach when a

defendant was convicted of violating a divisible statute.” See Descamps, 133 S. Ct. at

2285. To that end, the modified categorical approach applies only when a statute is

divisible, i.e., when it “sets out one or more elements of the offense in the alternative,” id.

at 2281, and “so effectively creates several different . . . crimes,” id. at 2285 (alteration in

original) (internal quotation marks omitted). As Justice Kagan explained in Descamps, if

one of the alternative elements

       matches an element in the generic offense, but the other . . . does not, the
       modified categorical approach permits sentencing courts to consult a
       limited class of documents, such as indictments and jury instructions, to
       determine which alternative formed the basis of the defendant’s prior
       conviction.

Id. at 2281. In such a situation, the reviewing court can then compare the elements of the

offense of conviction with the elements of the generic crime. The court is not entitled,

however, to apply the modified categorical approach to an indivisible statute — that is, a

statute that does not contain alternative elements.

       Just last year, in Mathis v. United States, the Supreme Court explained that

“elements are the constituent parts of a crime’s legal definition — the things the

prosecution must prove to sustain a conviction.” See 136 S. Ct. 2243, 2248 (2016)

(internal quotation marks omitted). An element is, in other words, “what the jury must

find beyond a reasonable doubt to convict the defendant” and “what the defendant

necessarily admits when he pleads guilty.” Id. Facts, on the other hand, “are mere real-

                                              13
world things — extraneous to the crime’s legal requirements.”             Id.   Facts “are

circumstance[s] or event[s] having no legal effect [or] consequence.” Id. (alterations in

original) (internal quotation marks omitted). Statutes that “enumerate[] various factual

means of committing a single element,” rather than statutes that “list[] multiple elements

disjunctively,” are indivisible. Id. at 2249.

                                                2.

       Applying the Supreme Court’s directives in Descamps and Mathis, it is clear that

the Virginia burglary statute is indivisible. The statute proscribes the following conduct:

       (1)    Committing “any of the acts mentioned in § 18.2-90 with intent to
              commit larceny, or any felony other than murder, rape, robbery or
              arson”; or

       (2)    Committing “any of the acts mentioned in § 18.2-89 or § 18.2-90
              with intent to commit assault and battery.”

See Va. Code § 18.2-91. Section 18.2-91 incorporates section 18.2-90, which cannot be

divided into alternative elements. Section 18.2-90 penalizes any person who, with the

intent to commit murder, rape, robbery, or arson,

       (1)    In the nighttime enters without breaking a dwelling house or an
              adjoining, occupied outhouse;

       (2)     In the daytime breaks and enters a dwelling house or an adjoining,
              occupied outhouse;

       (3)    Enters and conceals himself in a dwelling house or an adjoining,
              occupied outhouse; or

       (4)    In the nighttime enters without breaking, or at any time breaks and
              enters or enters and conceals himself in, any of the following
              locations:

              •      Any building permanently affixed to realty;

                                                14
             •      Any ship, vessel or river craft;

             •      Any railroad car; or

             •      Any automobile, truck or trailer, if that automobile, truck or
                    trailer is used as a dwelling or place of human habitation.

See Va. Code § 18.2-90. 8

      Put more simply, section 18.2-90 identifies four means of committing the requisite

entry to sustain a statutory burglary conviction: (1) entering without breaking in the

nighttime; (2) breaking and entering in the daytime; (3) entering and concealing oneself

in a dwelling house or an adjoined, occupied outhouse at any time; or (4) entering

without breaking in the nighttime, or at any time breaking and entering or entering and

concealing oneself in a number of non-house locations. See Va. Code § 18.2-90. The

foregoing are four distinct factual means of describing how the statutory offense of

burglary can be committed — rather than different elements — because the Virginia

courts analyze them interchangeably. See Mathis, 136 S. Ct. at 2256 (explaining that

court decisions are relevant to determining divisibility).   For example, in Finney v.

Commonwealth, the Supreme Court of Virginia analyzed how an entry is accomplished.

See 671 S.E.2d 169, 172 (Va. 2009). Observing that the burglary of an affixed shed had

allegedly occurred in the daytime rather than in the nighttime, the state supreme court

      8
        Section 18.2-91 of the Virginia Code also incorporates section 18.2-89, which
penalizes any person who “break[s] and enter[s] the dwelling house of another in the
nighttime with intent to commit a felony or other larceny therein.” See Va. Code § 18.2-
89. Section 18.2-89 therefore corresponds with the generic federal crime of burglary.
See Taylor v. United States, 495 U.S. 575, 598 (1990).


                                            15
then assessed whether the defendant had committed a breaking, as required by section

18.2-90. Id.; see also Scott v. Commonwealth, 636 S.E.2d 893, 896-97 (Va. Ct. App.

2006) (implying that Commonwealth can charge defendant generally with statutory

burglary).

       Of additional importance, the indictment against Castendet charged alternative

factual means of committing statutory burglary, thereby belying the Attorney General’s

contention that the Virginia burglary statute is divisible. Specifically, the indictment

alleged that Castendet “feloniously did enter in the nighttime without breaking or at any

time did break and enter or enter and conceal himself in a building permanently affixed

to realty belonging to [Mrs. McCree].” See A.R. 541 (emphasis added); see also Mathis,

136 S. Ct. at 2257 (explaining that where an indictment lists alternative terms in lieu of

selecting one term, the indictment provides “as clear an indication as any that each

alternative is only a possible means of commission, not an element that the prosecutor

must prove”); Descamps, 133 S. Ct. at 2290 (“A prosecutor charging a violation of a

divisible statute must generally select the relevant element from its list of alternatives.”). 9

We are therefore satisfied that the Virginia burglary statute is indivisible.


       9
         Furthermore, Virginia’s model jury instructions illustrate that the offense of
statutory burglary can be committed in various ways:

       The defendant is charged with the crime of statutory burglary. The
       Commonwealth must prove beyond a reasonable doubt both of the
       following elements of that crime:

              (1)     That the defendant without permission [in the nighttime
                      entered without breaking; in the daytime broke and entered;
(Continued)
                                              16
                                            3.

       The Attorney General nevertheless contends that our decision in United States v.

Foster — decided five years prior to the Supreme Court’s decision in Mathis — requires

a different result. See United States v. Foster, 662 F.3d 291 (4th Cir. 2011), reh’g

denied, 674 F.3d 391 (4th Cir. 2012). In Foster, we ruled that the Virginia burglary

statute was divisible — and thus, under the facts of that case, a violent felony under the

Armed Career Criminal Act — as to the locational aspect of the statute. We explained

that courts “normally may look only to the statutory elements of an offense and the fact

of the conviction.” Id. at 293. But, “because some statutes (like the Virginia provisions

at issue here) define burglary broadly enough to encompass enclosures other than a

building or structure, the categorical approach may permit the sentencing court to go

beyond the mere fact of conviction in certain cases.” Id. (internal quotation marks

omitted). The parties in Foster agreed that, “because the applicable Virginia statute is

broader than generic burglary as defined by the Supreme Court in Taylor, we should

review [pertinent] documents to determine whether a plea of guilty to burglary defined by



                     in the daytime entered and concealed himself in] [a dwelling
                     house; a building permanently affixed to realty]; and

              (2)    That he did so with the intent to commit [murder; rape;
                     robbery; arson].

See Criminal Jury Instructions for Virginia, No. G12.200 (2015); see also Mathis, 136 S.
Ct. at 2257 (noting that jury instructions are relevant to determining whether listed items
constitute alternative means or elements of offense); Omargharib, 775 F.3d at 199-200
(same).


                                            17
a non-generic statute necessarily admitted elements of the generic offense.” Id. (internal

quotation marks omitted).

       Our approach in Foster, however, does not survive the Supreme Court’s decision

in Mathis. There, the Supreme Court used the example of a statute with an element

requiring the use of a deadly weapon. The hypothetical statute “provide[d] that the use of

a knife, gun, bat, or similar weapon would all qualify.” See Mathis, 136 S. Ct. at 2249

(internal quotation marks omitted). According to the Court, “[b]ecause that kind of list

merely specifies diverse means of satisfying a single element of a single crime — or

otherwise said, spells out various factual ways of committing some component of the

offense — a jury need not find (or a defendant admit) any particular item.” Id. In fact,

“[t]he itemized construction gives a sentencing court no special warrant to explore the

facts of an offense, rather than to determine the crime’s elements and compare them with

the generic definition.” Id. at 2251.

       So too with section 18.2-91 of the Virginia Code, which incorporates section 18.2-

90’s enumeration of various ways of committing the locational aspect of Virginia’s

statutory burglary offense. In Foster, the parties agreed to review documents to consider

whether the defendant had committed the generic version of Virginia statutory burglary

by breaking and entering a building or structure. Post-Mathis, however, it is clear that the

locational aspect of section 18.2-90 enumerates “diverse means of satisfying a single

element of a single crime.” See Mathis, 136 S. Ct. at 2249. Our conclusion stems from

the clear language of section 18.2-90, which provides a list of locations — each of which

would qualify as an element of statutory burglary. See Va. Code § 18.2-90 (providing

                                            18
that statutory burglary can occur when person “enters and conceals himself in any

building permanently affixed to realty, or any ship, vessel or river craft or any railroad

car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a

dwelling or place of human habitation”). Moreover, the Supreme Court of Virginia

appears to view the locational terms of section 18.2-90 interchangeably. In Graybeal v.

Commonwealth, the defendant was convicted of statutory burglary after he broke into

twelve trailers that were used by a mobile home seller as models. See 324 S.E.2d 698,

699 (Va. 1985). After concluding that the burgled trailers were not “used as a dwelling

or place of human habitation,” as required by section 18.2-90, the Supreme Court of

Virginia went on to assess whether the defendant had burgled any of the other structures

named by section 18.2-90. Id. at 700. To sustain a conviction, neither the court nor the

jury had to find that a particular structure was broken into — any of the enumerated

options would have sufficed.

       In sum, we are satisfied that the Virginia burglary statute provides different factual

means that constitute entry and location — not different elements. The statute thus is not

divisible, and application of the modified categorical approach is inappropriate in

connection therewith.

                                             4.

       In these circumstances, we must assess whether a Virginia statutory burglary

constitutes an aggravated felony using the categorical approach. See Omargharib, 775

F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary

statute is broader than the federal crime of generic burglary. In Taylor, the Supreme

                                             19
Court included in its definition of a generic burglary “an unlawful or unprivileged entry”

into “a building or other structure,” and explained that state burglary statutes that

“eliminat[e] the requirement that the entry be unlawful, or . . . includ[e] places, such as

automobiles and vending machines, other than buildings,” fall outside the definition of

generic burglary. See 495 U.S. at 598-99. As we noted above, the Virginia burglary

statute is satisfied by various alternative means of entry, including one’s entry without

breaking or one’s concealment after lawful entry. By proscribing such conduct, the

statute falls outside the scope of generic burglary. The Virginia burglary statute also

reaches several places that are not buildings or structures, such as ships, vessels, river

craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the

breadth of the statute means that it falls outside the definition of an aggravated felony.

See In re H-M-F, __ I. & N. Dec. __ (BIA Mar. 29, 2017). Utilizing the categorical

approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes

more conduct than the generic federal offense of burglary. The DHS therefore erred in

classifying Castendet’s conviction as an aggravated felony.



                                            III.

       Pursuant to the foregoing, we grant the petition for review, vacate the DHS’s

Removal Order, and remand for such other and further proceedings as may be

appropriate.

                                                    PETITION FOR REVIEW GRANTED;
                                                          VACATED AND REMANDED


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