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De Lima v. Sessions

United States Court of Appeals, First Circuit

August 16, 2017

EVANDRO DE LIMA, Petitioner,
JEFFERSON B. SESSIONS, III, Attorney General of the United States, [*] Respondent.


          Patrick Long for petitioner.

          Brianne Whelan Cohen, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, John S. Hogan, Assistant Director, and David H. Wetmore, Trial Attorney, were on brief, for respondent.

          Before Kayatta, Selya, and Lipez, Circuit Judges.

          KAYATTA, Circuit Judge.

         Under the Immigration and Nationality Act ("INA"), "[a]ny alien who is convicted of an aggravated felony at any time after admission" is eligible for removal. 8 U.S.C. § 1227(a)(2)(A)(iii). One type of aggravated felony under the INA is "a theft offense (including receipt of stolen property) . . . for which the term of imprisonment [is] at least one year." Id. § 1101(a)(43)(G). In finding petitioner Evandro De Lima eligible for removal, the Board of Immigration Appeals ("BIA") concluded that third-degree larceny under Connecticut law, Conn. Gen. Stat. § 53a-124, is one such offense. For the following reasons, we uphold that finding.


         De Lima is a native and citizen of Brazil. He became a lawful permanent resident of the United States in 2011, three years before he was convicted of third-degree larceny under section 53a-124 of the Connecticut General Statutes.[1] In March 2015, removal proceedings commenced against De Lima on the basis that his conviction was for a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G) and was therefore an "aggravated felony" that rendered him eligible for removal. Id. § 1227(a)(2)(A)(iii).

         Section 53a-119 of the Connecticut General Statutes provides that a person commits larceny "when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Conn. Gen. Stat. § 53a-119. Larceny "includes, but is not limited to, " things like "embezzlement, " id. § 53a-119(1); "[o]btaining property by false pretenses, " id. § 53a-119(2); "[o]btaining property by false promise, " id. § 53a-119(3); "defrauding a public community, " id. § 53a-119(6); "theft of services, " id. § 53a-119(7); "library theft, " including "mutilat[ing] a book or other archival library materials . . . so as to render it unusable or reduce its value, " id. § 53a-119(12); "theft of utility service, " including "wireless radio communications, " id. § 53a-119(15); and "air bag fraud, " whereby a person fraudulently "obtains property from such other person or a third person by knowingly selling, installing or reinstalling any object, including any counterfeit air bag or nonfunctional air bag . . . in lieu of an air bag that was designed in accordance with federal safety requirements, " id. § 53a-119(16).

         Larceny comes in several degrees under Connecticut law. To establish the degree relevant here (third-degree larceny), the state must prove one of the following additional factors: (a) the offender stole a motor vehicle worth ten thousand dollars or less; (b) "the value of the property or service exceeds two thousand dollars"; (c) "the property consists of a public record, writing or instrument kept, held or deposited according to law with or in the keeping of any public office or public servant"; or (d) "the property consists of a sample, culture, microorganism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects or records a secret scientific or technical process, invention or formula or any phase or part thereof, " as "secret" is defined therein. Id. § 53a-124.

         In an oral decision on April 10, 2015, an immigration judge found De Lima removable and ordered him removed. De Lima timely appealed to the BIA. Before the Board, he argued that section 53a-124 is broader than the definition of a "theft offense" under the INA, and therefore cannot categorically count as an aggravated felony. Specifically, he claimed that the federal definition of a generic "theft offense" requires permanent intent to deprive another of property, and the Connecticut statute does not, both because it criminalizes theft of property without the intent to permanently deprive the owner of the property, and because it criminalizes theft of services. Therefore, reasoned De Lima, it is possible for a person to be convicted under section 53a-124 for something that would not be considered a "theft offense" under the federal definition.

         The BIA rejected De Lima's claims and dismissed his appeal. De Lima then timely petitioned our court for review. We review purely legal challenges like those raised here de novo, though we accord deference to the BIA's "reasonable interpretation of statutes and regulations falling within its bailiwick." Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007).


         Because the INA's list of aggravated felonies, see 8 U.S.C. § 1101(a)(43), does not perfectly correspond to state criminal codes, "the BIA and courts of appeal must often ascertain whether a particular state law fits within the enumerated aggravated felonies." Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 2013). To do so, we apply the so-called "categorical approach, " which "looks to the statutory definition of the offense of conviction, not to the particulars of the alien's behavior." Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015); see Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). In substance, we identify the elements of the state offense for which the person was previously convicted; we identify, to a reasonable possibility, the minimum conduct that the state would have deemed to have satisfied those elements; and then we ask whether that conduct would also satisfy one of the INA's listed "generic" aggravated felonies. Moncrieffe, 133 S.Ct. at 1684-85; see Esquivel-Quintana v. Sessions, No. 16-54, 2017 WL 2322840, at *4 (U.S. May 30, 2017).

         Consistent with that approach, De Lima advances three arguments for finding that his Connecticut conviction is not a conviction for a "theft offense" because the range of conduct sufficient to sustain a conviction for third-degree larceny under Connecticut law is broader than that which constitutes a "theft offense" under the INA. We address each argument in turn.


         De Lima argues, first, that section 53a-124 is overbroad because it imposes liability for takings of property even by one who does not intend to deprive another permanently of the property, as evidenced by the statute's imposition of criminal liability for mutilating a library book, replacing a car's airbags with something else, or intercepting wireless radio communications.

         This argument runs into our holding in Lecky. There, the petitioner challenged whether his conviction under Connecticut's second-degree larceny statute, Conn. Gen. Stat. § 53a-123, could be cited as a conviction for a "theft offense" subjecting him to removal under the INA. Lecky, 723 F.3d at 4. Like its third-degree larceny statute, Connecticut's second-degree larceny statute incorporates the definition of larceny contained in section 53a-119. See Conn. Gen. Stat. § 53a-123. Like De Lima, the petitioner in Lecky argued that the generic "theft offense" under the INA does not reach temporary deprivations of property, yet the Connecticut statute does, as evidenced by its inclusion of library theft, airbag fraud, and obtaining wireless radio communications. Lecky, 723 F.3d at 5. We observed that where a person has been convicted for theft of property, "[t]he BIA has made it clear that a theft offense requires the intent to deprive an owner of property rights, but such deprivation need not be permanent nor total." Id. at 6 (citing Matter of V-Z-S-, 22 I. & N. Dec. 1338, 1345-46 (B.I.A. 2000)). Finding the BIA's interpretation of the INA reasonable, and noting that the Second Circuit had done so as well in its decisions in Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), and Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), we deferred to the BIA and rejected the petitioner's argument. See Lecky, 723 F.3d at 5-6 (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)).

         De Lima urges us to find Lecky no longer controlling in light of the Supreme Court's recent decisions in Moncrieffe and Mellouli. See Holder v. Sessions, 848 F.3d 500, 502 (1st Cir. 2017) (citing, inter alia, United States v. Carter, 752 F.3d 8, 18 n.11 (1st Cir. 2014)) (recounting the exception to stare decisis whereby intervening pronouncements from the Supreme Court undermine an existing panel decision). He argues that these recent cases indicate that the court in Lecky erred by deferring to the BIA's interpretation of "theft offense" under the INA. Instead, argues De Lima, Moncrieffe and Mellouli show either that the BIA's decision in V-Z-S- deserves less deference, or that the BIA unreasonably interprets the INA anytime it finds that a generic offense is broader than the common-law version of that offense.

         De Lima's argument concerning Lecky and the degree of deference we accord the BIA takes two forms. The first, most clearly articulated in De Lima's opening brief, is that post-Lecky Supreme Court decisions suggest that the BIA should default to the common law unless Congress expressly indicates otherwise. But in Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court expressly rejected the argument "that Congress meant to include only a special subclass of [generic offenses]" like "those that would have been [the generic offenses] at common law." Id. at 598. There is nothing in Moncrieffe, Mellouli, or any other intervening Supreme Court decision that suggests that Taylor is no longer good law or does not apply in this context; in fact, Moncrieffe itself relies on Taylor in explicating the categorical approach that applies to cases like this one, and Mellouli, in turn, relies on Moncrieffe to do the same. See Mellouli, 135 S.Ct. at 1986 (citing Moncrieffe, 133 S.Ct. at 1684-85); Moncrieffe, 133 S.Ct. at 1684-85 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007) (citing Taylor, 495 U.S. at 599-600)).

         The second form of this argument, more fully fleshed out in De Lima's reply brief and at oral argument, is that Lecky should not control the outcome of this case because Moncrieffe and Mellouli require that the BIA construe narrowly the ambiguous generic offenses in the INA. In substance, this is an argument that these two cases demonstrate that the rule of lenity must always trump deference in defining precisely what a "theft offense" is under the INA. For three reasons, we disagree.

         First, neither Moncrieffe nor Mellouli addresses the subject of the interplay between deference and lenity in construing a provision of the INA. The Court in Moncrieffe confronted the BIA's interpretation of a state statute, not the INA itself. Chevron was therefore not implicated, so no deference was afforded to the BIA's interpretation when the Court stated that "ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen's favor." Moncrieffe, 133 S.Ct. at 1693 (citing Carachuri-Rosendo v. Holder, 560 U.S. 563, 581 (2010), and Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)). Similarly, lenity did not replace Chevron deference in Mellouli. Rather, deference simply proved to be unwarranted in Mellouli because the BIA's interpretation of the interplay between the INA, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971, and Kansas state law did not make any sense. See Mellouli, 135 S.Ct. at 1989.

         Second, to the extent that De Lima's argument is that lenity (or some form of it) plays a role in construing provisions of the INA that trigger deportation or removal, that role is well established and long predates Lecky. See, e.g., Kawashima v. Holder, 565 U.S. 478, 489 (2012); Leocal, 543 U.S. at 11 n.8; INS v. St. Cyr, 533 U.S. 289, 320 (2001); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) ("We resolve the doubts in favor of [the alien] because deportation is a drastic measure . . . ."). Nothing has changed in that regard post-Lecky, and neither Mellouli nor Moncrieffe suggests otherwise.

         Third, under our case law, even when lenity is potentially applicable, it plays no role "unless there is a grievous ambiguity or uncertainty in the language and structure of [a statute], such that even after a court has seize[d] every thing from which aid can be derived, it is still left with an ambiguous statute." Soto-Hernandez v. Holder, 729 F.3d 1, 6 (1st Cir. 2013) (quoting Chapman v. United States, 500 U.S. 453, 463 (1991)). The rule therefore "'cannot apply to contravene the BIA's reasonable interpretation' of an immigration statute where the agency makes use of 'ordinary principles of statutory construction.'" Garcia v. Sessions, 856 F.3d 27, 41 (1st Cir. 2017) (quoting Soto-Hernandez, 729 F.3d at 6). And this is precisely what the BIA did in V-Z-S- when it decided that "a taking of property constitutes a 'theft' [under the INA] 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." V-Z-S-, 22 I. & N. Dec. at 1346.

         Lecky thus remains good law in this circuit. As such, it forecloses De Lima's claim that "theft offense" must be construed narrowly to exclude theft committed without intent to permanently deprive. See Lecky, 723 ...

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