Da Graca v. Garland

• Decision Date: 18 January 2022
• Docket Number: No. 20-1607,20-1607
• Parties: Aires Daniel Benros DA GRACA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

23 F.4th 106

Aires Daniel Benros DA GRACA, Petitioner,

v.Merrick B. GARLAND,^* Attorney General, Respondent.

No. 20-1607

United States Court of Appeals, First Circuit.

January 18, 2022

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.

Before Thompson and Lipez, Circuit Judges, and Torresen,^** District Judge.

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 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.

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 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.

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 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; see also Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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. 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 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 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...