De Lima v. Sessions
2017 U.S. App. LEXIS 15404
| 1st Cir. | 2017Background
- Evandro De Lima, a Brazilian national and lawful permanent resident, was convicted under Connecticut third‑degree larceny, Conn. Gen. Stat. § 53a‑124, after admission to the U.S.; removal proceedings relied on the INA aggravated‑felony provision for "a theft offense," 8 U.S.C. § 1101(a)(43)(G), which renders an alien removable, 8 U.S.C. § 1227(a)(2)(A)(iii).
- Connecticut larceny is defined in Conn. Gen. Stat. § 53a‑119 and § 53a‑124 sets out third‑degree larceny by reference to value thresholds and particular kinds of property or materials; § 53a‑119 lists examples including theft of services, obtaining property by false pretenses/promises, library mutilation, and airbag fraud.
- The BIA concluded De Lima’s Connecticut conviction qualified as a categorical "theft offense" under the INA and dismissed his appeal from the immigration judge’s removal order; De Lima then sought judicial review in the First Circuit.
- De Lima advanced three principal challenges: (1) Connecticut law allows takings without permanent intent to deprive (temporary deprivations); (2) Connecticut criminalizes theft of services, which he argued is not within the INA generic theft definition; and (3) the statute criminalizes fraud‑based takings (theft by fraud), which the BIA has said ordinarily are not generic "theft offenses"—but he did not raise that third point to the BIA.
- The panel applied the categorical approach (compare state‑law elements to the INA’s generic offense) and reviewed de novo legal questions while according Chevron deference to reasonable BIA interpretations within its domain; the court upheld the BIA as to the first two challenges and declined to consider the fraud‑based argument for failure to exhaust before the BIA.
Issues
| Issue | Plaintiff's Argument (De Lima) | Defendant's Argument (Gov't / BIA) | Held |
|---|---|---|---|
| 1) Whether Connecticut third‑degree larceny is overbroad because it criminalizes takings without intent to permanently deprive | Connecticut allows nonpermanent deprivations (e.g., library mutilation, temporary interceptions), so it is broader than the INA generic "theft offense" which De Lima reads to require permanent deprivation | BIA interpretation (and First Circuit precedent in Lecky) treats a theft as any taking with criminal intent to deprive owner of rights/benefits of ownership, even if not total or permanent; defer to BIA | Held: Statute not overbroad on this ground; Lecky controls and BIA interpretation reasonable — conviction is a "theft offense." |
| 2) Whether theft of services in § 53a‑119/§ 53a‑124 makes the Connecticut crime broader than INA "theft offense" | Theft of services is not traditional property theft and thus outside the INA generic "theft offense" | Congress used the phrase "theft offense," signaling a modern, broader understanding (Model Penal Code, many states criminalize theft of services); courts have approved including theft of services within the generic category | Held: Theft of services does not render Connecticut third‑degree larceny categorically broader; statute fits within INA "theft offense." |
| 3) Whether fraud‑based takings included in Connecticut larceny render the statute overbroad because fraud may be a distinct category under the INA | Some subsections criminalize obtaining property by false pretenses/promises (fraud), and the BIA has said fraud offenses ordinarily are not generic thefts; thus the statute is overbroad and cannot categorically qualify | Government argued this particular theory was not raised to the BIA (so is unexhausted);BIA might distinguish some fraudulent takings as thefts in some circumstances | Held: Court lacks jurisdiction to consider this new fraud‑based overbreadth argument because De Lima did not present it to the BIA; exhaustion is required and fatal here. |
| 4) Role of deference vs. rule of lenity in construing "theft offense" | Post‑Moncrieffe/Mellouli, De Lima urged narrower construction and greater reliance on lenity rather than Chevron deference | Majority: Supreme Court precedent (Taylor, Moncrieffe, Mellouli) does not eliminate Chevron deference to reasonable BIA interpretations; lenity applies only where grievous ambiguity remains after ordinary construction; Lecky remains controlling | Held: Chevron deference to BIA stands; lenity does not override a reasonable agency interpretation here. |
Key Cases Cited
- Lecky v. Holder, 723 F.3d 1 (1st Cir. 2013) (upholding BIA view that Connecticut larceny can qualify as INA "theft offense")
- Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (Connecticut larceny with theft‑of‑services implicated; held categorical match)
- Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009) (similar treatment of Connecticut larceny statutes)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and rule that ambiguities in criminal statutes referenced by INA are construed for noncitizen)
- Taylor v. United States, 495 U.S. 575 (1990) (generic statutory terms are not confined to narrow common‑law meanings)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (agency interpretations entitled to deference when reasonable)