FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
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.
Kayatta, Selya, and Lipez, Circuit Judges.
KAYATTA, Circuit Judge.
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.
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. 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).
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).
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.
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.
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).
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).
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.
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.
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)).
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.
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
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
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.
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.
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.
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 ...