Background
Kemar Rogelo White, a Jamaican citizen and lawful permanent resident since 2003, faced removal based on a Virginia conviction for using or displaying a firearm while committing a felony under Va. Code Ann. § 18.2-53.1. An immigration judge treated that conviction as an aggravated-felony crime of violence, found White statutorily ineligible for asylum and withholding of removal, denied Convention Against Torture protection, and ordered him removed to Jamaica.
White appealed to the Board of Immigration Appeals and requested a remand so he could pursue cancellation of removal for a lawful permanent resident under 8 U.S.C. § 1229b(a). The Board denied that request because it agreed that the Virginia conviction was an aggravated felony, which would make White ineligible for cancellation. The Fourth Circuit held White’s petition in abeyance while awaiting decisions addressing whether the Virginia offense qualifies as a crime of violence.
The Court’s Holding
The Fourth Circuit granted White’s petition for review and remanded the case to the Board. While the petition was pending, the court held in United States v. Scott, 176 F.4th 806, 811-14 (4th Cir. 2026), that a conviction under Va. Code Ann. § 18.2-53.1 does not categorically qualify as a crime of violence under the elements clause of the career-offender Guideline.
The court concluded that Scott undermined the agency’s determination that White’s conviction necessarily has as an element the use, attempted use, or threatened use of physical force against another person and therefore categorically qualifies under 18 U.S.C. § 16(a). It directed the Board to reconsider, in light of Scott, both White’s eligibility for cancellation of removal and whether he is removable as an aggravated felon. The court did not itself decide that White qualifies for cancellation or is not removable.
Key Takeaways
- An intervening Fourth Circuit decision undermined the agency’s categorical treatment of Virginia Code § 18.2-53.1 as a crime of violence.
- The Board must reconsider whether White’s conviction is an aggravated felony and whether he may seek cancellation of removal.
- The ruling grants review and requires further agency proceedings; it does not award cancellation of removal or finally resolve removability.
Why It Matters
The decision shows how circuit precedent interpreting a crime-of-violence elements clause can affect immigration classifications that turn on materially similar force requirements. A conviction previously treated as an aggravated felony may require renewed categorical analysis when intervening precedent establishes that the underlying statute does not necessarily require violent force.
For lawful permanent residents with convictions under Va. Code Ann. § 18.2-53.1, the ruling may preserve access to cancellation of removal and provide grounds to challenge aggravated-felony removability, although the Board must address those questions on remand.