United States Court of Appeals
For the First Circuit
No. 20-1607
AIRES DANIEL BENROS DA GRACA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson and Lipez, Circuit Judges,
and Torresen, District Judge.
Robert F. Weber, with whom Randy Olen was on brief, for
petitioner.
Melissa K. Lott, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, with whom
Brian Boynton, Acting Assistant Attorney General, and Erica B.
Miles, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
Of the District of Maine, sitting by designation.
January 18, 2022
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TORRESEN, District Judge. Aires Daniel Benros Da Graca
petitions for review of a decision of the Board of Immigration
Appeals (the "Board") affirming his order of removal and denying
his requests for cancellation of removal and voluntary departure.
Because we find that a conviction under Rhode Island General Laws
("RIGL") § 31-9-1 is not categorically a theft offense, we grant
the petition for review, vacate the decision below, and remand for
further proceedings.
I. Background
Petitioner Da Graca is a 45-year-old citizen of Cape
Verde who came to the United States as a lawful permanent resident
in 1989, at the age of thirteen. On September 26, 2016, Da Graca
was convicted in the Superior Court in Providence, Rhode Island,
of driving a motor vehicle without consent of the owner or lessee
in violation of RIGL § 31-9-1. The full text of RIGL § 31-9-1
reads as follows:
Any person who drives a vehicle, not his or
her own, without the consent of its owner or
lessee, and with intent temporarily to deprive
the owner or lessee of his or her possession
of the vehicle, without intent to steal the
vehicle, is guilty of a felony. The consent
of the owner or lessee of a vehicle to its
taking or driving shall not in any case be
presumed or implied because of the owner's or
lessee's consent on a prior occasion to the
taking or driving of that vehicle by the same
or a different person. Any person who assists
in, or is a party or accessory to or an
accomplice in any unauthorized taking or
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driving, is guilty of a felony. Any person
convicted of a violation of this section shall
be fined not more than five thousand dollars
($5,000) or imprisoned for a term of not more
than five (5) years, or both.
Da Graca received a five-year suspended sentence and five years of
probation.
On September 16, 2019, the Department of Homeland
Security initiated removal proceedings against Da Graca by serving
him with a Notice to Appear ("NTA"). The NTA charged Da Graca
with removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having
been convicted of an aggravated felony theft offense as defined by
the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(G).
At the Immigration Court in Boston, Da Graca argued that
he was eligible for cancellation of removal and voluntary departure
on the ground that a conviction under RIGL § 31-9-1 did not
constitute an aggravated felony theft offense.
In an oral decision issued on December 12, 2019, the
Immigration Judge determined that Da Graca's conviction for
driving without consent of the owner was categorically a theft
offense, thus rendering Da Graca ineligible for cancellation of
removal and voluntary departure. The Judge reasoned that although
RIGL § 31-9-1 does not require an intent to steal (i.e., an intent
to totally and permanently deprive the owner of the rights and
benefits of ownership), the Board had already established that
even a temporary taking qualifies as aggravated felony theft.
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The Board adopted and affirmed the decision of the
Immigration Judge. The Board reiterated that even temporary
deprivations of the rights and benefits of ownership meet its
definition of theft. Moreover, while the Board recognized that
takings that entail only a "de minimis deprivation of ownership
interests" do not meet the standard for a theft offense, it
determined that Da Graca had failed to "identify any Rhode Island
court decisions which support a conclusion that there is a
realistic probability that [RIGL] § 31-9-1 is applied to temporary
takings of vehicles which entail only a de minimis deprivation of
ownership interests."
The Board distinguished its holding from that of the
Fourth Circuit in Castillo v. Holder, 776 F.3d 262 (4th Cir. 2015),
where the court had found that a conviction under a nearly
identical Virginia unauthorized use statute did not constitute an
aggravated felony theft offense. The Board explained that, in
Castillo, the Fourth Circuit had found that there was a realistic
probability the Virginia statute would apply to de minimis conduct
outside the Board's definition of theft after undertaking an
"extensive review" of Virginia case law. By contrast, Da Graca
was not able to point to any cases in which Rhode Island had
prosecuted de minimis deprivations under RIGL § 31-9-1. Thus, the
Board determined that Da Graca failed to show a realistic
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probability that RIGL § 31-9-1 encompasses de minimis deprivations
of ownership interests.
Da Graca timely filed this petition for review.
II. Standard of Review
Board determinations must be upheld if they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Guzman v. INS, 327 F.3d 11,
15 (1st Cir. 2003) (internal quotation marks omitted). We review
legal issues de novo, "albeit with deference accorded to the
[Board's] reasonable interpretation of statutes and regulations
falling within its bailiwick." Lecky v. Holder,
723 F.3d 1, 4
(1st Cir. 2013) (internal quotation marks omitted). No deference
is given to the Board's interpretation of state law.
Id.
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III. Analysis
The primary issue1 before us is whether Da Graca has been
convicted of an aggravated felony theft offense.2 To make that
determination, we use the categorical approach. De Lima v.
Sessions, 867 F.3d 260, 262 (1st Cir. 2017). The goal of the
categorical analysis is to ascertain whether the state criminal
statute at issue fits within the generic definition of the
corresponding aggravated felony or whether it instead encompasses
1 Da Graca makes four arguments on appeal. First, Da
Graca argues that his conviction under RIGL § 31-9-1 does not
constitute an aggravated felony theft offense because the statute
encompasses de minimis deprivations of ownership interests, which
are outside the scope of the generic definition of theft. Second,
he argues that RIGL § 31-9-1 is overbroad because it extends
liability to accessories and, as such, the statute may be
considered divisible and subject to the modified categorical
approach. As best we can tell from the administrative record
before us, this is the first time Da Graca makes this particular
argument, and it is therefore not properly before us. See Paiz-Morales v. Lynch, 795 F.3d 238, 244 n.4 (1st Cir. 2015)
("[A]rguments not raised before the BIA are waived due to a failure
to exhaust administrative remedies." (citation and internal
quotation marks omitted)). Third, he argues that the rule of
lenity should apply. This argument is also raised for the first
time before us and is therefore also waived. See id. Finally,
Da Graca argues that the government failed to establish his
removability by clear and convincing evidence. This argument goes
the way of the preceding two--waived for failure to raise it to
the Immigration Judge or Board.
2 The Immigration and Nationality Act authorizes the
deportation of, and renders ineligible for cancellation of removal
and voluntary departure, "[a]ny alien who is convicted of an
aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii) (deportable
aliens);
id. § 1229b(a)(3) (cancellation of removal); id.
§ 1229c(a)(1) (voluntary departure), such as a "theft offense
. . . for which the term of imprisonment [is] at least one year,"
id. § 1101(a)(43)(G).
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more criminal conduct than the generic federal definition. See
id. at 263. Under the categorical approach, we must "look[] only
to the statutory definition[] of the . . . offense[], and not to
the particular facts underlying th[e] conviction[]." Taylor v.
United States, 495 U.S. 575, 600 (1990); see also Moncrieffe v.
Holder,
569 U.S. 184, 190 (2013) (explaining that the facts
underlying the noncitizen's conviction are "quite irrelevant"
under the categorical approach (citation omitted)).
Here, we must compare RIGL § 31-9-1 to the generic
definition of "theft offense." The parties agree that the generic
definition of "theft offense" is found within Matter of V-Z-S, 22
I. & N. Dec. 1338 (B.I.A. 2000). We have previously accepted the
definition that Matter of V-Z-S outlined for what constitutes a
generic theft offense, so that definition controls here. See
Lecky, 723 F.3d at 5–6.
A. Comparing Generic Theft with RIGL § 31-9-1
In Matter of V-Z-S, the Board considered a California
unauthorized use statute that, like RIGL § 31-9-1, criminalized
the unauthorized taking of a vehicle with the intent to deprive
the owner of title or possession.3 See 22 I. & N. Dec. at 1349.
3 The California statute reads as follows: "Any person who
drives or takes a vehicle not his or her own, without the consent
of the owner thereof, and with intent either to permanently or
temporarily deprive the owner thereof of his or her title to or
possession of the vehicle, whether with or without intent to steal
the vehicle, or any person who is a party or an accessory to or an
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In its analysis, the Board rejected the petitioner's argument that
"theft offense" only encompassed permanent takings and instead
concluded that a "theft offense" was "a taking of property . . .
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." Id. at 1346. The Board clarified,
however, that "[n]ot all takings of property . . . will meet this
standard because some takings entail a de minimis deprivation of
ownership interests."
Id. The Board specifically cited
"glorified borrowing"4 and "joyriding" as examples of de minimis
conduct that would not qualify as a theft offense under the generic
definition. See
id. at 1346, 1349.
We can glean from Matter of V-Z-S that to qualify as a
categorical theft offense, a statute must meet three requirements:
(1) it must entail a taking of property, (2) it must include
criminal intent to deprive, and (3) it must exclude de minimis
accomplice in the driving or unauthorized taking or stealing, is
guilty of a public offense . . . ." Cal. Veh. Code § 10851(a).
4 Matter of V-Z-S did not define the term "glorified
borrowing," except to say that glorified borrowings do not "involve
a significant impairment of ownership rights." 22 I. & N. Dec.
at 1349. In Castillo, the Fourth Circuit interpreted glorified
borrowing to include instances in which "the defendant's use of
property deviates only slightly from the specific scope of
consensual use, resulting in an insignificant effect on ownership
interests."
776 F.3d at 269. Because we find that RIGL § 31-9-1
is broad enough to encompass joyriding, a type of de minimis
conduct, we need not speculate here about the meaning of glorified
borrowing.
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deprivations of ownership interests. Analyzing the California
unauthorized use statute in light of this definition, the Board in
Matter of V-Z-S found that the statute was not overbroad because
it met all three of these conditions, including the requisite third
component of theft, what we may think of as the "but not de minimis
deprivations" factor. Importantly, while the California
unauthorized use statute did not explicitly exclude de minimis
conduct from its scope, the Board concluded that such an exclusion
could be inferred from the fact that a separate California statute
covered joyriding.5 See id. at 1348–49. Thus, the California
unauthorized use statute, viewed in the context of California's
statutory structure, matched the Board's definition for what
constitutes a generic theft offense.
The Board's reasoning in Matter of V-Z-S demonstrates
that, when there is a statute that appears to track the first two
requirements of the generic definition of theft, it will be plainly
overbroad unless there are either explicit textual clues, or
implicit contextual ones (such as separate provisions within the
state statutory scheme that cover other kinds of takings), to
5 The Board explained that, at the time of the petitioner's
conviction, the joyriding statute stated in relevant part that:
"Any person who shall, without the permission of the owner thereof,
take any automobile, bicycle, motorcycle, or other vehicle or
motorboat or vessel, for the purpose of temporarily using or
operating the same, shall be deemed guilty of a misdemeanor
. . . ." Matter of V-Z-S, 22 I. & N. Dec. at 1348 (quoting Cal.
Penal Code § 499b (1995)).
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indicate that the statute does not reach de minimis conduct. We
employed this methodological approach when we clarified in United
States v. Burghardt that overbreadth is found where the text of
the state statute does not explicitly exclude conduct outside the
bounds of the federal generic definition, so long as no other
statutory provision narrows the statute's application. See 939
F.3d 397, 407-08 (1st Cir. 2019).
Burghardt concerned a New Hampshire drug statute
prohibiting the "offer" of controlled substances. Id. at 406–07.
The defendant argued that that statute criminalized both "bona
fide" and "mere" offers to sell prohibited drugs, that federal law
criminalized only "bona fide" offers, and that, if the statute
encompassed "mere" offers, it would be overbroad.
Id. at 407.
While we ultimately determined that the statute was a categorical
match to the generic federal offense, we did so only after finding
that another provision in the same statutory scheme applied to
mere offers and therefore would have been rendered superfluous if
the statute at issue were read so broadly. See
id. at 407–08.
Burghardt underscores that overbreadth occurs where a statute, by
its own text and as read in the context of the larger statutory
scheme, does not preclude application to conduct outside the
federal definition.
Other circuits have also found statutes overbroad due to
a lack of textual or contextual clues indicating that a narrower
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reading of the statute was appropriate. In Gonzalez v. Wilkinson,
for example, the Eighth Circuit found that a Florida marijuana
statute was overbroad because it, unlike the federal definition,
did not explicitly exclude "seeds or mature stalks from its
definition of marijuana." 990 F.3d 654, 658, 661 (8th Cir. 2021).
In Da Graca's case, the Board was correct that RIGL § 31-
9-1 meets the first two requirements of Matter of V-Z-S's
definition of theft, as the statute (1) entails the unauthorized
taking of a vehicle and (2) includes an intent to deprive. What
the Board failed to consider, however, was the fact that RIGL § 31-
9-1 is, on its face, missing the requisite third component, the
"but not de minimis deprivations" factor.
As the Board did in Matter of V-Z-S, we must consider
RIGL § 31-9-1 in the context of Rhode Island's statutory structure.
When we do, a key difference between this case and Matter of V-Z-S
emerges. Unlike in Matter of V-Z-S, where a separate joyriding
statute helped limit the construction of the California
unauthorized use statute, see 22 I. & N. Dec. at 1348, here there
is no relevant Rhode Island provision that helps us read RIGL §
31-9-1 to exclude de minimis takings.6 Thus, in the same way that
6 Section 31-9-1 is located in Title 31, captioned "Motor
and Other Vehicles," of the RIGL. Chapter 9 of Title 31 is devoted
to "Theft and Related Offenses." We can find no other statute in
this Chapter or elsewhere in the Rhode Island statutory scheme
that could apply to the type of conduct that the Board
characterized as a de minimis deprivation, such as glorified
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Matter of V-Z-S interpreted the existence of a separate California
joyriding statute to cabin the breadth of the California
unauthorized use statute, we interpret the lack of a separate Rhode
Island joyriding statute to be evidence that the conduct prohibited
by RIGL § 31-9-1 includes joyriding.
There is additional evidence that RIGL § 31-9-1 covers
joyriding. Most notably, in a case from 1986, the Rhode Island
Supreme Court referred to a guilty plea under an earlier version
of RIGL § 31-9-1 as a conviction for "criminal misdemeanor
joyriding." Perry v. Rent-a-Ride, Inc., 505 A.2d 424, 425 (R.I.
1986) (internal quotation marks omitted). And the earlier version
of the statute mentioned in Perry is nearly identical to the
current one. 7 That the ultimate arbiter of Rhode Island law
borrowing or joyriding. There is a statute setting a misdemeanor
penalty for misappropriation of a vehicle, but it concerns
"vehicle[s] other than a motor vehicle" and looks to be a throwback
to horse and buggy days. See RIGL § 11-44-7 (prohibiting
misappropriation of non-motor vehicles, boats, and animals).
7 The original version of Rhode Island's unauthorized use
of a motor vehicle statute was enacted in 1950. The elements were
identical to the current version, the only relevant difference
being that the original offense was a misdemeanor. See 1950 R.I.
Pub. Laws 529. In 1986, the Rhode Island legislature amended RIGL
§ 31-9-1 by changing it from a misdemeanor to a felony, but it did
not make any other relevant substantive changes to the statute.
See
1986 R.I. Pub. Laws 471. To put it another way, the felony
statute criminalized identical conduct as the misdemeanor statute,
just with potentially harsher consequences.
We further note that this change in the Rhode Island
legislature's classification of the severity of the crime supports
our analysis. Rhode Island distinguishes misdemeanors from
felonies by their maximum allowable punishments. See RIGL § 11-
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characterized an earlier (but nearly identical) version of RIGL
§ 31-9-1 as prohibiting joyriding is strong evidence that the
statute does in fact criminalize that conduct.
In sum, RIGL § 31-9-1 is overbroad. Unlike the Board's
definition of theft, RIGL § 31-9-1 does not explicitly exclude "de
minimis deprivation[s] of ownership interests," Matter of V-Z-S,
22 I. & N. Dec. at 1346, from its scope. Nor is there any other
Rhode Island statute akin to the California joyriding statute
discussed in Matter of V-Z-S that would narrow the applicability
of RIGL § 31-9-1. Therefore, because it includes de minimis
conduct that the Board concluded is not a part of generic theft,
RIGL § 31-9-1 is not a categorical match with the generic
definition of theft articulated in Matter of V-Z-S.
B. The Actual Case Requirement
Despite this apparent disconnect between RIGL § 31-9-1
and the Board's definition of theft offense, the Board in Da
Graca's case determined that to prove the statute's overbreadth,
the Petitioner was required to identify actual cases in which Rhode
Island had enforced the statute against de minimis deprivations of
ownership interests. Da Graca contests the Board's imposition of
1-2. But because RIGL § 31-9-1 does not have a mandatory minimum
penalty, judges retain discretion to punish minor violations of
the statute with the same penalties as if the statute were a
misdemeanor. As a result, this change provides sentencing
flexibility for more serious violations of the statute, rather
than limiting the breadth of conduct encompassed by the statute.
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an actual case requirement and argues that he "need not necessarily
proffer specific examples of Rhode Island prosecutions in order to
establish a 'realistic probability' that the state would apply its
statute to conduct that falls outside the generic definition of a
crime." We agree with Da Graca.
This "realistic probability" language comes from
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). In Duenas-
Alvarez, the Supreme Court cautioned that determining whether a
state statute is overbroad "requires more than the application of
legal imagination to a state statute's language. It requires a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime."
549 U.S. at 193.
In its decision affirming the immigration judge's denial
of Da Graca's application for relief from removal, the Board
appeared to read into the Duenas-Alvarez "realistic probability"
test an actual case requirement, under which a petitioner must
identify actual cases of enforcement against conduct outside the
generic definition of a crime to show a statute is overbroad. The
Board was in error. This court has already established that there
is no actual case requirement where a statute is facially broader
than its generic counterpart.
In Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017), we held
that, at least where a state statute is "plainly" overbroad, a
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petitioner need not produce an actual case to satisfy the realistic
probability test. 8 847 F.3d at 66. While the Swaby court
acknowledged Duenas-Alvarez's "sensible caution against crediting
speculative assertions regarding the potentially sweeping scope of
ambiguous state law crimes," it maintained that such caution was
inapplicable where "[t]he state crime at issue clearly does apply
more broadly than the federally defined offense."
Id. The court
explained that Duenas-Alvarez itself supported this approach, as
the case "made no reference to the state's enforcement practices"
but rather "discussed only how broadly the state criminal statute
applied." Id.; see also Gonzalez,
990 F.3d at 660 ("[T]he focus
of the realistic probability inquiry is on how a state statute
might be applied.").
Supreme Court cases decided since Duenas-Alvarez provide
further support for Swaby's disavowal of an actual case
requirement. In Mellouli v. Lynch, 575 U.S. 798 (2015), for
8 Several other circuits have also concluded that there is
no actual case requirement where the statute itself is overbroad.
See, e.g., Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018);
United States v. Aparicio-Soria,
740 F.3d 152, 157-58 (4th Cir.
2014) (en banc); Gonzalez,
990 F.3d at 660-61; Ramos v. U.S. Att'y
Gen.,
709 F.3d 1066, 1071-72 (11th Cir. 2013); see also United
States v. Castillo-Rivera,
853 F.3d 218, 241 (5th Cir. 2017) (en
banc) (Dennis, J., dissenting) ("Thus, the majority opinion's
unqualified rule that a defendant must in all cases point to a
state court decision to illustrate the state statute's breadth
misconstrues Duenas-Alvarez, directly conflicts with Taylor, and
ignores both our established circuit precedent and the holdings of
several of our sister circuits.").
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example, the Court held that a Kansas drug statute was overbroad
on its face without requiring the petitioner to identify cases in
which Kansas had actually prosecuted possession of drugs not listed
in the federal schedules. See 575 U.S. at 798-813. Similarly,
in Mathis v. United States,
136 S. Ct. 2243 (2016), the Court
determined that an Iowa burglary statute was overbroad based solely
on its text, without reference to any supporting state case law
demonstrating that the statute had actually been enforced in an
overbroad manner. See
136 S. Ct. at 2251.
In Da Graca's case, the Board cited the Fourth Circuit's
decision in Castillo as support for its conclusion that overbreadth
can only be established through case law. But whether Castillo
provides support for an actual case requirement is immaterial.
Here, Swaby, not Castillo, is controlling. If RIGL § 31-9-1 is
overbroad on its face, then Da Graca need not proffer an actual
case to demonstrate a realistic probability of RIGL § 31-9-1's
overbreadth.9
As we explained earlier, § 31-9-1 is plainly overbroad:
de minimis conduct is not excluded from its scope, and it is thus
not a categorical match to the generic definition of theft. See
9 We also note that it is unsurprising that there would be
little case law involving prosecutions of minor instances of
joyriding, particularly in a small state like Rhode Island. It
seems manifestly unfair to have a petitioner's fate depend on such
vagaries as a local prosecutor's charging decisions or how willing
a state court judge is to write an opinion in a particular matter.
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Gonzalez, 990 F.3d at 661 (finding that a statute was overbroad
because it did not explicitly exempt conduct outside the federal
definition); cf. Swaby,
847 F.3d at 66 (warning that a state
criminal statute should not "be treated as if it is narrower than
it plainly is"). Moreover, in contrast to Matter of V-Z-S and
Burghardt,10 where separate statutory provisions covered conduct
outside the scope of the federal generic definition of the offense,
no other Rhode Island statute covers de minimis vehicle takings,
like joyriding.11
We can properly infer from these facts, without relying
on our "legal imagination," Duenas-Alvarez, 549 U.S. at 193, that
RIGL § 31-9-1 is overbroad. The text of RIGL § 31-9-1 does not
exclude de minimis conduct, nor does another Rhode Island statute
narrow the reach of the law to only more serious property offenses.
10 We acknowledge that, in Burghardt, we discussed the
appellant's failure to cite an actual case to support his argument
that N.H. Rev. Stat. § 318-B:2(I) covered "mere" offers. See 939
F.3d at 408–09. However, we did so only after concluding, based
on its statutory text and its place in the broader statutory
scheme, that the law was likely a categorical match. Id. Thus,
in Burghardt, the actual case analysis was employed as a lastchance opportunity for Burghardt to resolve any lingering
ambiguity about the statute's reach. It is unnecessary to take
this added step in Da Graca's case, because--as already
discussed--an analysis of the text and structure of § 31-9-1
demonstrates that it is plainly overbroad.
11 Furthermore, as explained earlier, Rhode Island's
highest court has, at least in passing, identified a case in which
RIGL § 31—9-1 was used to prosecute what that court characterized
as joyriding. See Perry, 505 A.2d at 425.
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Thus, Da Graca's conviction under RIGL § 31-9-1 does not constitute
a categorical aggravated felony theft offense, and he need not
identify actual Rhode Island case law to demonstrate the statute's
overbreadth.
IV. Conclusion
For these reasons, we grant the petition for review,
vacate the Board's opinion, and remand for reconsideration.
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