De Lima v. Sessions , 867 F.3d 260 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2453
EVANDRO DE LIMA,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Selya, and Lipez,
Circuit Judges.
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.
August 16, 2017
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jefferson B. Sessions, III has been substituted
for former Attorney General Loretta E. Lynch as the respondent.
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.
I.
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).
1 De Lima was also convicted of fourth-degree larceny under
Connecticut law, Conn. Gen. Stat. § 53a-125, for a separate
larceny. That conviction, however, was subsequently vacated and
played no part in De Lima's removal proceedings.
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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
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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.
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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).
II.
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).
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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.
A.
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
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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
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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
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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
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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.
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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 F.3d at 6 (citing V-Z-S-, 22
I. & N. Dec. at 1345–46).
B.
De Lima next argues that Connecticut's inclusion of
theft of services as larceny renders the crime broader than the
generic "theft offense" definition in the INA. The government
argues that Lecky also disposes of this argument. We are not so
sure. On the one hand, our decision in Lecky expressly approved
of the reasoning and holding in Abimbola, in which the Second
Circuit found that Connecticut's third-degree larceny offense is
categorically a "theft offense" under the INA despite its
imposition of criminal liability for theft of services. Lecky,
723 F.3d at 6; Abimbola, 378 F.3d at 178–80. In Lecky, we found
that Abimbola and Almeida, 588 F.3d at 789 (holding that second-
degree larceny under Connecticut law is categorically a "theft
offense" aggravated felony under the INA), were "well-reasoned
opinions" that were "both on point and persuasive," and we stated
that the petitioner did not "convince[] us to part ways with those
opinions." Lecky, 723 F.3d at 6.
On the other hand, as mentioned earlier, Lecky involved
a challenge to a conviction under a different statute than the
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statute under which De Lima was convicted. And while that
difference was immaterial to our disposition of De Lima's first
argument, it might be material to our consideration of his second.
The petitioner in Lecky was convicted under a portion of
Connecticut's second-degree larceny statute that imposes liability
for larceny where "the property, regardless of its nature or value,
is taken from the person of another." Conn. Gen. Stat.
§ 53a-123(a)(3). We noted that because the relevant portion of
the statute expressly provided for the taking of property "from
the person of another," some of the examples provided in
section 53a-119 could not possibly constitute second-degree
larceny under section 53a-123(a)(3). The definition of third-
degree larceny under section 53a-124 lacks the precise language
upon which we relied in Lecky and contains a subsection that
expressly provides for liability for theft of a "service" whose
value "exceeds two thousand dollars," id. § 53a-124(a)(2).2
In the end, we need not concern ourselves with either
the scope of Lecky's preclusive effect or with precisely defining
the metes and bounds of our holding in that case, because we are
unpersuaded by De Lima's argument that section 53a-124's
2
The government has not provided Shepard documents that would
shed light on whether De Lima was convicted under a particular
subsection of section 53a-124. See Conteh v. Gonzales, 461 F.3d
45, 59 (1st Cir. 2006) (citing Shepard v. United States, 544 U.S.
13, 20–23 (2005)).
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imposition of criminal liability for theft of services renders the
statute too broad to categorically constitute a "theft offense"
aggravated felony under the INA. It is true, as De Lima says,
that the traditional common-law definition of theft was limited to
property, and that services were not considered property in many
common-law jurisdictions. But this is the type of argument
rejected in Taylor, where the Supreme Court declined to give the
generic term "burglary" its common-law meaning because "that
meaning [wa]s obsolete or inconsistent with the statute's
purpose." 495 U.S. at 594. The Court determined that "burglary"
under the Career Criminals Amendment Act of 1986, 18 U.S.C.
§ 924(e), was not confined to the term's traditional common-law
meaning, but rather included the broader array of conduct captured
within the definition in the Model Penal Code and prohibited by
burglary statutes adopted by numerous states at the time the
federal statute was passed. Taylor, 495 U.S. at 597-98, 598 n.8.
So, too, did Congress's use of the term "theft offense"
rather than merely the term "theft" imply an intent to reach more
broadly than the singular common-law notion of theft. See Ilchuk
v. Att'y Gen. of the U.S., 434 F.3d 618, 622 (3d Cir. 2006) ("[I]t
was Congress's intent for a 'theft offense' to be more broadly
defined than the common-law definition of larceny, and . . . by
using that phrase, rather than 'theft,' Congress signaled that it
was not presenting an exhaustive list of offenses, but rather, a
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definition with broad meaning."). At the time of the enactment of
§ 1101(a)(43)(G), the Model Penal Code had for several years
provided for criminal liability for theft of services, and over
half the states had criminalized theft of services under their
respective criminal codes. See United States v. Corona-Sanchez,
291 F.3d 1201, 1216 n.6 (9th Cir. 2002) (en banc) (Rymer, J.,
dissenting in part) (citing American Law Institute, Modern Penal
Code and Commentaries II § 223.7, cmt. 1 (1980)), abrogated on
other grounds by statute as explained in United States v. Gomez-
Mendez, 486 F.3d 599, 604–05 (9th Cir. 2007). Taylor teaches that
in using generic terms, like "burglary" in 18 U.S.C. § 924(e),
Congress intended to adopt "the generic sense in which the term is
now used in the criminal codes of most [s]tates." 495 U.S. at
598. It fairly follows that Congress "intended to incorporate a
modern understanding of theft," Abimbola, 378 F.3d at 178–79, in
which case it likely intended theft of services to fall within the
ambit of the term "a theft offense."
In concluding otherwise, the Ninth Circuit en banc court
observed that services are not property. See Corona-Sanchez, 291
F.3d at 1208; accord United States v. Juarez-Gonzalez, 451 F. App'x
387, 392 (5th Cir. 2011) (unpublished opinion). But why this
should make any difference is unclear. The Ninth Circuit observed
that theft of services was "generally [not] included within the
scope of ordinary theft statutes because one's labor is not one's
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'property.'" Corona-Sanchez, 291 F.3d at 1208. But the more
relevant point is that the thieving of services was already a theft
offense in most states at the time Congress enacted the relevant
provision of the INA.
The Ninth Circuit also observed that "the Supreme Court
has carefully maintained the distinction between 'property' and
other rights when construing criminal statutes." Id. (citing
McNally v. United States, 483 U.S. 350, 356 (1987), superseded on
other grounds by statute as recognized in Cleveland v. United
States, 531 U.S. 12, 19-20 (2000)). Be that as it may, the word
"property" does not appear in the INA's provision denominating
"theft offense[s]" as aggravated felonies. See 8 U.S.C.
§ 1101(a)(43)(G). And the fact that certain states criminalized
as larceny only the theft of property simply does not mean that
the laws of many other states criminalizing the theft of services
are not also theft offenses. Otherwise, the Ninth Circuit offered
no reason for its holding besides a desire to maintain a national
uniformity that does not exist.
We have considered, too, the language of V-Z-S- in which
the BIA itself described a taking of property as a theft.3 De Lima
would read this statement as saying that only a taking of property
3 "[A] taking of property constitutes a 'theft' 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.
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can constitute a theft. We see no reason to read the BIA's
statement in such a restrictive manner. The question of services
versus property was not before the BIA in V-Z-S-. Rather, at issue
was the question whether an alien could be said to have been
convicted of a "theft offense" by sustaining a conviction under a
state law that criminalized the taking of property even absent
intent to deprive permanently, traditionally an element of common-
law theft. The BIA considered and decided which thefts of property
constitute a "theft offense"; it did not, in so doing, construe
"theft offense" as including only tangible-property theft crimes.
We therefore hold that Connecticut's third-degree
larceny statute's imposition of criminal liability for theft of
services does not broaden the offense beyond the limits of a "theft
offense" under the INA. See Abimbola, 378 F.3d at 178; cf. Ilchuk,
434 F.3d at 622–23 (finding that Pennsylvania's theft-of-services
statute is categorically a "theft offense" aggravated felony under
the INA).
C.
De Lima argues, finally, that his conviction cannot
categorically qualify as a conviction for a "theft offense" under
8 U.S.C. § 1101(a)(43)(G) because Connecticut's third-degree
larceny statute criminalizes theft by fraud, which the BIA itself
does not treat as a "theft offense." See Matter of Garcia-Madruga,
24 I. & N. Dec. 436, 440–41 (B.I.A. 2008) (finding fraud crimes do
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not pass the categorical test because theft requires lack of
consent, while fraud necessarily involves the acquisition of
property by consent involuntarily given). De Lima, though, did
not advance this argument before the BIA. The law is clear that
"theories not advanced before the BIA may not be surfaced for the
first time in a petition for judicial review of the BIA's final
order." Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015)
(quoting Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004));
see Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013);
Sousa v. INS, 226 F.3d 28, 31–32 (1st Cir. 2000). This limitation
on the scope of our review is jurisdictional. Mazariegos-Paiz,
734 F.3d at 62–63.
At oral argument, counsel suggested that we could
nevertheless consider De Lima's argument that a state statute that
prohibits theft by fraud is not categorically a theft offense under
the INA, because the argument is simply a different approach to
the overbreadth challenge that he mounted both before the BIA and
in his petition for review. This suggestion is untenable in light
of our holding in Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992).
There, an immigration judge denied a petitioner's application for
asylum because the petitioner did not have a well-founded fear of
persecution. Id. at 757. The petitioner appealed to the BIA
asserting that the immigration judge was wrong because the
petitioner had demonstrated his fear of, and the likelihood he
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would suffer, persecution on account of his political opinions.
Id. at 760. When the BIA affirmed, the petitioner sought relief
in our court, asserting that "the BIA did not consider his claim
of persecution on the basis of membership in a particular social
group." Id. We noted that it indeed did not, but that its failure
was "attributable to the fact that petitioner failed to raise this
claim before the BIA," and we accordingly found that we lacked
jurisdiction to consider his challenge. Id. at 760–61.
Here too, we are confronted with a challenge that was
not presented to the BIA: De Lima contended before the BIA only
that the criminal activities proscribed in subsections 7, 12, 15,
and 16 of section 53a-119 fell outside the scope of the generic
federal definition of a theft offense based on the arguments we
have addressed above. Now he wants to argue that one or more
different subsections of the Connecticut statute fail to qualify
as a theft offense for a different reason.
Telling an agency that subsection A does not qualify as
a theft offense for reason X simply does not raise, much less
exhaust, the argument that subsection B does not qualify as a theft
offense for reason Y. True, both arguments feed into the common
ultimate conclusion that a conviction under the broad Connecticut
statute is not categorically a theft offense. But if we were to
deem the assertion of this ultimate conclusion to be sufficient to
exhaust all independent routes to reaching such a conclusion, we
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would present both the BIA and the opposing party with an unfair
and daunting task. Quite literally, each would have to generate,
sua sponte, a list of all of the possible reasons why third degree
larceny might not be a theft offense, and then perform a
categorical analysis of all eighteen subsections of the
Connecticut statute, mapping each reason against each subsection.
Even a single such categorical analysis is an arduous task,
requiring a close analysis of the specific statutory language put
at issue, see Swaby v. Yates, 847 F.3d 62, 65–66 (1st Cir. 2017);
of the case law interpreting that language, see United States v.
Fish, 758 F.3d 1, 4–5 (1st Cir. 2014); and of the extent to which
the elements made relevant by that language match or fall within
what the BIA has reasonably interpreted the INA's "theft offense"
provision to include, see Descamps v. United States, 133 S. Ct.
2276, 2283 (2013) (citing Taylor, 495 U.S. at 600). The ensuing
categorical evaluation is often difficult and time consuming. See
United States v. Tavares, 843 F.3d 1, 19 (1st Cir. 2016) ("The
result is a Rube Goldberg jurisprudence of abstractions piled on
top of one another in a manner that renders doubtful anyone's
confidence in predicting what will pop out at the end."). In this
very case, for example, considering just the property and services
provisions of selected subsections within section 53a-119 occupies
over two-thousand words of analysis, even with the benefit of
Lecky's spade work addressing one aspect of that consideration.
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The reasons why one subsection may broaden the elements of the
offense beyond the federal definition, while another subsection
does not, can be as varied as the number of subsections to be
examined. The analysis can be even more complicated, too, in cases
(unlike this one) where the parties do not stipulate to the
indivisibility of the statute in question. See Moncrieffe, 133 S.
Ct. at 1684 (observing that a modified categorical approach applies
to "state statutes that contain several different crimes, each
described separately"); Mathis v. United States, 136 S. Ct. 2243,
2256–57 (2016) (instructing that, to determine whether a statute
contains multiple different crimes with different elements or one
crime that can be committed by multiple different means, a court
should look to the statute, to the state's case law, and, if those
sources cannot answer the question, to the relevant charging
instrument in the case before the court).
There is no precedent in our circuit that even remotely
supports defining exhaustion so loosely as to encompass De Lima's
newly minted challenge. Rather, Ravindran and the subsequent
similar cases we have cited, above, dictate the contrary: a
reasonably elaborate argument that requires substantial analysis
and development to support a general proposition is not exhausted
merely because a party raises an entirely independent argument to
support that same general proposition.
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In the absence of First Circuit precedent providing
grounds for us to review this belated challenge, our dissenting
colleague relies on the Second Circuit's decision in Gill v. INS,
420 F.3d 82 (2d Cir. 2005). Gill rested on two grounds: a loose
reading of the statutory exhaustion requirement, and a broad
reading of the court's power to override such requirements to avoid
"manifest injustice." Id. at 86–88. The latter ground has since
been implicitly rejected by the Supreme Court. See Grullon v.
Mukasey, 509 F.3d 107, 115 (2d Cir. 2007) (citing Bowles v.
Russell, 551 U.S. 205 (2007)). And no other circuit has since
applied Gill's loose construction of the statutory exhaustion
requirement of 8 U.S.C. § 1252(d)(1). Moreover, Gill involved an
argument that was, in the court's words, logically "subsidiary" to
the argument made before the BIA, 420 F.3d at 87, not an
alternative argument that stood on its own legs (as De Lima seeks
to advance).
In deciding what arguments have been suitably developed
before our own court, we regularly decline to assume for ourselves
the burdens that De Lima would have us impose on the BIA. For
example, in United States v. Whindleton, 797 F.3d 105 (1st Cir.
2015), we considered whether Assault with a Dangerous Weapon
("ADW") under Massachusetts General Laws ch. 265, § 15B(b),
categorically qualified as a "violent felony" under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Whindleton, 797
- 21 -
F.3d at 107. We found that it did, id. at 116, but expressly
declined to consider one possible argument to the contrary--that
Massachusetts's ADW might not be a "violent felony" because the
least culpable mental state necessary to sustain a conviction might
be less culpable than that of a violent felony--because "the
defendant [had] not developed, or even expressly asserted, any
argument" to that effect, id. at 116 n.12. Similar examples abound
in other types of cases. See, e.g., Eldridge v. Gordon Bros. Grp.,
Nos. 12-2311 & 16-1929, 2017 WL 2981797, at *12 (1st Cir. July 13,
2017) (finding waiver in a civil case where a mismanagement-based
breach-of-implied-warranty claim was raised and argued, but only
arising out of an unjustified liquidation, not also as to the
mismanagement of stores); Coningford v. Rhode Island, 640 F.3d
478, 482–83 (1st Cir. 2011) (finding a habeas corpus petitioner
failed to exhaust a claim in state court, and rejecting the
argument "that by arguing generally that the wayward introduction
of prior bad acts evidence rendered his trial unfair, [petitioner]
presented the state court with a claim based on a 'particular
right' guaranteed by the Constitution"); United States v. Slade,
980 F.2d 27, 31 (1st Cir. 1992) (applying the raise-or-waive rule
in a criminal case, noting that "a party is not at liberty to
articulate specific arguments for the first time on appeal simply
because the general issue was before the district court").
- 22 -
We observe, too, that the dissent's attempt to mitigate
the unfortunate harm caused by a procedural defalcation leads it
to intrude on the BIA's expertise even as it professes not to do
so. The dissent projects onto the BIA's decision in Garcia-Madruga
a finding that no fraudulent taking can be a "theft offense" under
the INA. But the BIA in Garcia-Madruga determined only that
fraudulent takings are "ordinarily" not theft offenses. Garcia-
Madruga, 24 I. & N. Dec. at 440. The decision in that matter sheds
insufficient light on whether the BIA, were it presented with the
argument De Lima now raises before us, might interpret "theft
offense" under the INA to include the fraudulent takings proscribed
in section 53a-119 on the basis that the INA's definition of
consent differs from Connecticut's. See id. at 440 n.5 (declining
to "discount the possibility that the theft and fraud aggravated
felony compartments are not watertight such that certain
crimes . . . may constitute both a theft offense and one
'involv[ing] fraud'" (alteration in original)). Indeed, the BIA's
holding in Matter of Ibarra, 26 I. & N. Dec. 809, 811–13 (BIA
2016), shows that the INA has come to such a conclusion before.
And the mere fact that section 53a-119 criminalizes a number of
types of fraudulent takings likewise has little to do with whether
one or more of those types of fraudulent takings would not
constitute a "theft offense."
- 23 -
Finally, the dissent offers a series of policy reasons
why exhaustion of theories of relief should not be required. In
a perfect world, Congress might be persuaded by some of these
reasons. It might, for example, limit exhaustion requirements to
arguments that turn on matters with regard to which the INA has
special expertise. Or it might make an exception for really strong
arguments that would change a case's result. But we do not have
the authority to adopt these changes to the law on our own accord.
De Lima also advances quite a different twist on his
theft-by-fraud argument. Returning to his preserved argument that
theft of services is not a theft offense, he argues that if theft
of services has a home in the INA's category of aggravated
felonies, it is more like theft by fraud than it is like theft
generally, and theft by fraud is an aggravated felony under the
INA only when the victim's loss is more than $10,000, see 8 U.S.C.
§ 1101(a)(43)(M)(i). Whether De Lima has preserved his ability to
marshal this point in support of his clearly preserved argument
that theft of services is not a theft offense, we need not decide.
What distinguishes theft by fraud from theft of property is not
the object of the theft. Rather, it is the means by which the
theft is accomplished. Moreover, when Congress creates a general
category of "theft offense" and a special category for one type of
theft (theft by fraud), the logical inference is that other types
of theft not specially dealt with remain in the general category.
- 24 -
III.
For the foregoing reasons, we uphold the BIA's decision.
De Lima's petition for review is denied.
-Dissenting Opinion Follows-
- 25 -
LIPEZ, Circuit Judge, dissenting. I agree with the
majority that De Lima's overbreadth theory is unavailing insofar
as he argues that the term "theft offense" under the Immigration
and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(G), does not
include temporary deprivations of property or theft of services.
I disagree, however, that we lack jurisdiction to consider his
claim that third-degree larceny under Connecticut law does not
qualify as a removable offense under the INA because it includes
within its scope at least some forms of fraud that do not satisfy
the federal definition of a generic "theft offense." To the
contrary, our precedent on the INA's exhaustion requirement
permits us to address De Lima's fraud overbreadth claim and achieve
the proper resolution of this case.
I.
My colleagues maintain that De Lima's fraud-based claim
is foreclosed by our caselaw because that overbreadth theory was
not argued to the BIA. They rely on Ravindran v. INS, 976 F.2d
754, 760-61 (1st Cir. 1992), where the panel held that it lacked
jurisdiction to consider a claim of persecution different from the
theory of persecution presented to the BIA. Specifically, we
concluded that the petitioner's assertion to us that he would face
persecution on account of his membership in a particular social
group was unexhausted because he claimed to the BIA only that he
- 26 -
faced persecution on account of his political opinions. Id. at
760.
In applying Ravindran to the very different
circumstances of this case, the majority has adopted an
unnecessarily restrictive view of the exhaustion requirement.
Moreover, where, as here, the petitioner presents a compelling
claim on the merits, refusing to consider his challenge to removal
is inconsistent with "the fundamental interests at stake." Gill
v. INS, 420 F.3d 82, 87 (2d Cir. 2005). I thus begin with the
merits of petitioner's fraud claim before explaining why we have
jurisdiction to provide the relief to which he is entitled.
A. Connecticut's Prohibition on Theft by Fraud
As the majority explains, the success of De Lima's
petition for review turns on whether his prior conviction under
Connecticut law matches up, under the "categorical approach," with
a "theft offense" under the INA, which was the basis of the removal
proceedings initiated against him. See 8 U.S.C. § 1101(a)(43)(G).
Our inquiry does not focus on De Lima's specific conduct, but
rather, on whether the elements of the state offense of conviction
satisfy the elements of the pertinent aggravated felony in the INA
list. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568
(2017) ("Petitioner's state conviction is . . . an 'aggravated
felony' under the INA only if the least of the acts criminalized
- 27 -
by the state statute falls within the generic federal definition
of [a theft offense].").
A reasonable reading of Connecticut's third-degree
larceny statute, see Conn. Gen. Stat. §§ 53a-119, 53a-124, leaves
no doubt that it encompasses at least some crimes that the INA
would classify as an "offense that involves fraud or deceit," under
8 U.S.C. § 1101(a)(43)(M)(i), and not a "theft offense" within the
meaning of § 1101(a)(43)(G). The BIA has expressly held that the
offenses described in these two sections "ordinarily involve
distinct crimes," with a theft offense requiring "the taking of
property without consent" and a fraud offense "ordinarily
involv[ing] the taking or acquisition of property with consent
that has been fraudulently obtained." Matter of Garcia-Madruga,
24 I. & N. Dec. 436, 440-41 (BIA 2008) (finding that welfare fraud
under Rhode Island law is not an aggravated felony theft offense
as defined in § 1101(a)(43)(G)).
In both its general terms and specific examples, the
offense of third-degree larceny in Connecticut includes "the
taking or acquisition of property with consent that has been
fraudulently obtained." Id. at 440 (emphasis added). The state's
general larceny definition includes "wrongfully . . . obtain[ing]"
the property of another, without the requirement of lack of
consent. Conn. Gen. Stat. § 53a-119. In addition, the general
provision's list of crimes that constitute larceny includes
- 28 -
offenses that fall explicitly on the fraud side of the BIA's theft-
fraud distinction: "[o]btaining property by false promise," id.
§ 53a-119(3), "defrauding of public community," id. § 53a-119(6),
and "[a]ir bag fraud," id. § 53a-119(16). Although the third-
degree larceny statute covers only some of the examples listed in
§ 53a-119,4 the included crimes are not limited to those that
involve the acquisition of property without consent.
Indeed, the government acknowledged at oral argument
that Connecticut's third-degree larceny statute includes crimes
within its scope that both the BIA and other courts of appeals
have characterized as fraud offenses. Yet, government counsel
argued -- without citation to any authority -- that Connecticut
courts have construed fraud in such a way that "fraud" in
Connecticut fits within the generic definition of a theft offense.
By way of explanation, she said the Connecticut Supreme Court has
held that consent gained by fraud is not knowing consent. Hence,
counsel maintained, a taking by fraud in Connecticut qualifies as
a categorical "theft offense" under the INA because it involves
"the taking of property without consent." Garcia-Madruga, 24 I.
& N. Dec. at 440. At a minimum, she suggested, the BIA left open
4 The relevant portion of § 53a-124 states that larceny in
the third degree involves the taking, obtaining, or withholding of
motor vehicles valued at $10,000 or less; other property or service
exceeding two thousand dollars in value; certain public records;
and specified scientific or technical materials.
- 29 -
in Garcia-Madruga the question of what constitutes consent, or
lack thereof, for purposes of classifying a crime under the INA,
and she pointed to the agency's more recent holding that
extortionate takings -- which, like fraud, may involve a knowing
relinquishment of property -- fit the generic definition. See
Matter of Ibarra, 26 I. & N. Dec. 809, 811 (BIA 2016) (stating
that, because "consent" in extortion offenses is coerced, it "does
not constitute the kind of 'consent' that exempts an offense from
aggravated felony treatment under section 101(a)(43)(G) of the
Act").5 The government appears to maintain that it is up to the
BIA, in each particular instance, to decide whether a state theft
crime involves a lack of consent as contemplated by Congress.
This attempt at analytical gymnastics falls flat.
Whatever the precise parameters of "consent" within the context of
the INA, the term cannot be stretched so broadly as to entirely
eliminate the differences between theft and fraud. By listing the
two crimes separately, Congress clearly expressed its view that
they are not interchangeable. See Soliman v. Gonzales, 419 F.3d
276, 283 (4th Cir. 2005) ("Where Congress has utilized distinct
5In Ibarra, the immigration judge had found that a conviction
under a California penal statute was not categorically an
aggravated felony theft offense "because the statute proscribes
generic extortion in addition to generic theft offenses," and
generic extortion is defined as "obtaining property 'from another
with his consent induced by the wrongful use of force, fear, or
threats.'" 26 I. & N. Dec. at 810 (quoting United States v.
Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008)).
- 30 -
terms within the same statute, the applicable canons of statutory
construction require that we endeavor to give different meanings
to those different terms -- here 'fraud' and 'theft.'"). Congress,
as the BIA has acknowledged, drew the line at consent. See id. at
282 ("The key and controlling distinction between these two crimes
is therefore the 'consent' element -- theft occurs without consent,
while fraud occurs with consent that has been unlawfully obtained."
(quoted in Garcia-Madruga, 24 I. & N. Dec. at 439)).
Thus, even if Connecticut chooses to label fraud as a
form of theft, that state-law choice cannot override Congress's
judgment to treat the two types of conduct as different crimes for
purposes of removal. "The language of a federal statute must be
construed to have the meaning intended by Congress, not the [state]
legislature." Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir. 2000);
see also Taylor v. United States, 495 U.S. 575, 590 (1990) ("It
seems to us to be implausible that Congress intended the meaning
of 'burglary' . . . to depend on the definition adopted by the
State of conviction."); Drakes, 240 F.3d at 248 ("Pronouncing a
flower to be a rose . . . does not necessarily make it one.").
I do understand that "consent" is not a fixed concept,
and the BIA's decision in Ibarra illustrates an instance when an
intentional relinquishment of property was deemed by the agency to
be without consent and, thus, a "theft offense" under
§ 1101(a)(43)(G). Such a construction of the statute, by the
- 31 -
agency charged with administering it, is entitled to deference so
long as it is reasonable. See Chevron, U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Garcia v.
Sessions, 856 F.3d 27, 35 (1st Cir. 2017). Thus, if this case
turned on whether one particular form of fraud could be construed
to include lack of consent as an element, we might need to give
the BIA an opportunity to consider the issue before deciding it
ourselves.
In this instance, however, the question is whether every
crime covered by the Connecticut statute is a removable offense,
and the provision plainly sweeps so broadly that we could not defer
to the BIA if it concluded that all of the conduct criminalized by
the provision qualifies as a generic "theft offense" under the
INA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1989 (2015) (holding
that, because the BIA's reliance on a state drug-paraphernalia
offense as a basis for removal under 8 U.S.C. § 1227(a)(2)(B)(i)
"makes scant sense," the BIA approach "is owed no deference under
the doctrine described in Chevron"). Not only would such a
determination be inconsistent with the line Congress has drawn
between consensual and non-consensual takings, but the INA also
designates fraud as a removable offense only when the property
taken exceeds $10,000 in value. See 8 U.S.C. § 1101(a)(43)(M)(i).
A conviction for third-degree larceny in Connecticut will not meet
that financial threshold; the offenses covered by § 53a-124 either
- 32 -
include no minimum value for the wrongfully obtained property or
specify values of $10,000 or less. See Conn. Gen. Stat. § 53a-
124.
Accordingly, there is simply no insight that we could
obtain from the BIA relevant to De Lima's fraud-based overbreadth
challenge. To the contrary, it is clear that, if we addressed
that claim, the BIA's order of removal, premised on De Lima's
conviction for third-degree larceny under Connecticut law, could
not stand.6 The majority resists this conclusion, focusing on the
BIA's use of the word "ordinarily" in Garcia-Madruga. As I have
explained, however, it is one thing to say that some fraudulent
takings -- like extortion -- properly may be classified as theft
offenses, and an entirely different thing to say that every
fraudulent taking proscribed by the Connecticut statute could be
so categorized. This statute is inescapably overbroad, and it is
simply wrong for the majority to suggest that the BIA might -- or
could -- conclude that it is not. Their rejection of my analysis
necessarily rests on their view of the exhaustion requirement, to
which I now turn.
6
Indeed, the outcome here is so obvious that there is no need
to invoke the well-established rule of lenity that, as the majority
acknowledges, "plays a role in construing provisions of the INA
that trigger deportation or removal." Maj. Op. at 9. See 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 . . . .").
- 33 -
B. Exhaustion
Although I understand how my colleagues have read our
precedent to foreclose De Lima's fraud-based overbreadth
challenge, their view fails to take into account how the
circumstances of this case differ from those underlying most of
our exhaustion precedents. The exhaustion requirement only makes
sense where, by ignoring it, we would exceed our jurisdiction or
violate some principle of administrative law. As I shall explain,
neither of those barriers exist here, and the majority's
unreasonably strict application of the exhaustion doctrine
unnecessarily produces an unjust result.
As a threshold matter, the majority correctly asserts
that "[t]he law is clear that 'theories not advanced before the
BIA may not be surfaced for the first time in a petition for
judicial review of the BIA's final order.'" Maj. Op., § C (quoting
Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015)). Indeed,
exhaustion is a statutory requirement, see 8 U.S.C. § 1252(d)(1),
and, hence, mandatory. See Gill, 420 F.3d at 85. Ordinarily,
then, when an alien fails to present an issue to the BIA, we lack
jurisdiction to consider it. Mazariegos-Paiz v. Holder, 734 F.3d
57, 62 (1st Cir. 2013). Thus, if De Lima had not presented an
overbreadth theory to the agency, I would have to agree with my
colleagues that we could not consider that claim. The statute's
overbreadth, however, was the focus of De Lima's argument to the
- 34 -
BIA, and he framed his argument inclusively more than once. See,
e.g., Br. to the BIA, at 5 ("The Immigration Judge Erred in Holding
that Connecticut Larceny in the Third Degree is an Aggravated
Felony"); id. at 7 ("The Connecticut Statute for Third-Degree
Larceny is Overbroad and Covers Offenses not Criminalized by the
Federal Definition of Theft").
The question before is thus only "the level of
specificity at which a claim must have been made to have been
'exhausted' under § 1252(d)(1)." Gill, 420 F.3d at 85. In my
view, the answer to that question must take into account the nature
of the claim under scrutiny. After all, the primary purpose of
the exhaustion requirement is to protect the agency's authority
over matters within its area of expertise. See, e.g., Mazariegos-
Paiz, 734 F.3d at 63 (stating that the exhaustion requirement
"afford[s] the parties the full benefit of the agency's expertise
and allow[s] the agency the first opportunity to correct its own
bevues"). In determining whether a claim has been properly
exhausted, therefore, it is appropriate to consider whether
judicial review of that claim would usurp the agency's function.
See id. at 62-63.
With that consideration in mind, the agency is
unquestionably entitled to the first opportunity to decide issues
that depend on facts, particularly when there is an administrative
record that includes testimony subject to a credibility
- 35 -
assessment. The validity of a petitioner's claim that he has been,
or will be, subject to persecution if removed from the United
States is one such issue, and it was the focus in Ravindran, the
case on which the majority relies to say that we lack jurisdiction
over De Lima's fraud-based overbreadth claim. The panel in
Ravindran reasonably rejected the petitioner's effort to switch
theories of persecution, as the facts relevant to his original
claim of political persecution could be expected to differ from
those relevant to his claimed persecution based on membership in
a social group. See 976 F.2d at 761 n.5 (describing at length the
multiple factual issues implicated by the unpreserved social-group
claim); see also, e.g., Ramirez-Matias v. Holder, 778 F.3d 322,
327 (1st Cir. 2015) (holding that petitioner failed to exhaust
claim of persecution based on social group where he did not present
that theory to the BIA); Silva v. Gonzales, 463 F.3d 68, 72 (1st
Cir. 2006) (holding that petitioner did not exhaust his past
persecution claim, explaining that the "narrow argument in his
appeal to the BIA is not sufficient to allow a broader inquiry now
into the IJ's factual determination that Silva did not suffer past
persecution").
Here, however, De Lima merely offers an additional legal
argument to support his previously made claim that Connecticut's
third-degree larceny provision is overbroad as a matter of law.
Significantly, as explained above, we would not be "usurp[ing] the
- 36 -
agency's function" in considering this extension of his claim, as
there is only one way to answer the pure question of law that he
raises. Mazariegos-Paiz, 734 F.3d at 62. Thus, there is no
ambiguity implicating possible deference to the agency's judgment.
See Chevron, 467 U.S. at 842-43. Moreover, just as importantly,
the BIA already has accepted De Lima's argument, holding in Garcia-
Madruga that the taking of property "with consent that has been
fraudulently obtained" is ordinarily not a generic "theft
offense." 24 I. & N. Dec. at 440. We do not disturb the "carefully
calibrated balance of responsibilities" embodied in the exhaustion
requirement where, as here, the petitioner's reformulated claim
involves a legal issue that the agency previously has resolved.
Mazariegos-Paiz, 734 F.3d at 63; see also Dale v. Holder, 610 F.3d
294, 301 (5th Cir. 2010) (noting that "administrative exhaustion
requires only that federal courts refrain from addressing an
immigration issue until the appropriate administrative authority
has had the opportunity to apply its specialized knowledge and
experience to the matter" (internal quotation marks and brackets
omitted)).
My colleagues confusingly highlight the complexity of
the categorical analysis and suggest that, with the approach to
exhaustion that I consider appropriate, the BIA and the opposing
party would need to anticipate unmade arguments. That approach,
however, does not require the BIA to address arguments the
- 37 -
petitioner did not expressly bring to the agency, and, hence, there
is no basis for asserting that it would impose "an unfair and
daunting task" on the BIA or opposing party. The question is
whether we treat as exhausted an argument raised to us that is a
variation on a legal argument previously raised to the BIA. There
is nothing unfair or daunting for the government or for us in
addressing such an argument.
How we apply the exhaustion requirement in this case
will determine whether De Lima faces mandatory removal based on a
clear error of law. Where the purpose of exhaustion will not be
advanced and the outcome is so clearly unjust, a strict application
of that doctrine is both unwise and unnecessary. The Second
Circuit has adopted a sensible approach that remains true to the
rationale for exhaustion, concluding that the statutory exhaustion
provision, § 1252(d)(1), "bars the consideration of bases of relief
that were not raised below, and of general issues that were not
raised below, but not of specific, subsidiary legal arguments, or
arguments by extension, that were not made below." Gill, 420 F.3d
at 86.
My colleagues suggest that I am forced to rely on Second
Circuit law because "[t]here is no precedent in our circuit that
even remotely supports defining exhaustion so loosely as to
encompass De Lima's newly minted challenge." I agree that we have
no case adopting the pragmatic, fair approach taken by the Second
- 38 -
Circuit. My point, however, is that we have no law foreclosing
such an approach in a case such as this, where the general claim
was raised to the BIA, the dispositive issue is one of law, and
there is only one permissible outcome. Moreover, my colleagues
incorrectly imply that, in addition to endorsing the Second
Circuit's reading of the statutory exhaustion requirement, I rely
on the Gill court's alternative rationale that courts possess the
power to assert jurisdiction to avoid manifest injustice even where
there has been a failure to exhaust administrative remedies. See
Gill, 420 F.3d at 87. That reasoning is not part of my analysis,
which relies solely on a construction of the exhaustion requirement
of § 1252(d)(1) -- a task that undeniably belongs to the courts.7
Indeed, where the error is so plain, we should feel
obliged to undo the BIA's incorrect classification of De Lima's
third-degree larceny conviction and the mandatory removal order
premised on that finding. The Supreme Court has highlighted the
"harsh consequences" that flow from the aggravated felony
classification. Moncrieffe v. Holder, 133 S. Ct. 1678, 1682
(2013). Under the INA, the Attorney General may not "grant[]
discretionary relief from removal to an aggravated felon, no matter
7 I am frankly puzzled by my colleagues' reference to the
"perfect world" where "Congress might be persuaded" by my analysis.
Although Congress has imposed the exhaustion requirement, it is
the job of the courts to apply that requirement in a fair and
sensible manner.
- 39 -
how compelling his case." Id. We should not hesitate to adopt an
approach -- permitted by our precedent -- that would avoid unjustly
imposing those consequences. As the Second Circuit observed in
Gill, while "there is no jurisdiction of the heart, it does not
follow that a court must be completely indifferent to the interests
at stake when exercising lawful discretion or interpreting general
statutory language." 420 F.3d at 87 n.7 (internal quotation marks
omitted).
* * *
In sum, "the merits of [De Lima's] . . . argument are
clear-cut in his favor, and 'go[] to the very basis for his
deportation.'" Gill, 420 F.3d at 88 (quoting Marrero Pichardo v.
Ashcroft, 374 F.3d 46, 54 (2d Cir. 2004)). We have the authority
to hear his claim, and we should do so. I therefore respectfully
dissent from the majority's denial of De Lima's petition for
review.
- 40 -