FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN LOPEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-870

Agency No.

A205-882-422

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 17, 2024

San Francisco, California

Filed September 11, 2024

Before: Sidney R. Thomas, Consuelo M. Callahan, and 

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sidney R. Thomas;

Partial Concurrence and Partial Dissent by Judge Gabriel P. 

Sanchez
2 LOPEZ V. GARLAND

SUMMARY*

Immigration

Denying Christian Lopez’s petition for review of a 

decision of the Board of Immigration Appeals, the panel 

concluded that: (1) Lopez’s petit larceny convictions under 

Reno Municipal Code (“RMC”) § 8.10.040 are crimes 

involving moral turpitude (“CIMTs”) that made him 

removable; (2) the agency did not err in denying Lopez’s 

asylum application as untimely; and (3) substantial evidence 

supported the denial of withholding of removal.

In Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 

2016), the BIA held that a theft offense constitutes a CIMT 

if it includes an intent to deprive either permanently or under 

circumstances where the owner’s property rights are 

substantially eroded. The panel explained that its task, after 

the recent decision in Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024), is to evaluate a statute independently 

under Skidmore v. Swift & Co., 323 U.S. 134 (1944), giving 

“due respect,” but not binding deference to the agency’s 

interpretation.

The panel concluded that the BIA’s decision in DiazLizarraga was entitled to such respect, explaining that the 

decision is thorough and well-reasoned, consistent with the 

longstanding distinction between substantial and de minimis 

takings, and consistent with definitions of the Supreme 

Court and Model Penal Code.

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
LOPEZ V. GARLAND 3

Applying Diaz-Lizarraga, the panel concluded that 

RMC § 8.10.040 categorically defines a CIMT. Because the 

ordinance uses the term “deprive,” but does not define it, the 

panel looked to the Model Penal Code and Nevada state law, 

which both define the term as a “withholding” that is either 

permanent or for so long that a substantial portion of its 

value to the owner is lost.

The panel rejected Lopez’s argument that he was not 

removable because he could not obtain a pardon for petty 

municipal offenses. This argument was based on the 

“pardon waiver,” 8 U.S.C. § 1227(a)(2)(A)(vi), which 

provides that a noncitizen cannot be removed for a CIMT 

after having received a full and unconditional pardon for the 

relevant conviction. Looking to the plain language of the 

statute, the panel concluded that the lack of availability of a 

pardon for a conviction does not render the conviction an 

improper basis for removal.

Lopez’s ground of removability, 8 U.S.C. 

§ 1227(a)(2)(A)(ii), requires convictions for two or more 

CIMTs “not arising out of a single scheme of criminal 

misconduct.” The panel rejected Lopez’s argument that his 

convictions arose from a “single scheme,” relying on Szonyi 

v. Whitaker, 915 F.3d 1228 (9th Cir. 2019), where this court 

deferred to the BIA’s interpretation that crimes are not part 

of a “single scheme” when each act constitutes a complete 

crime.

As to asylum, the panel rejected Lopez’s arguments for 

why he should have been granted an exception to the oneyear filing deadline due to “changed” or “extraordinary” 

circumstances based on his youth or ignorance of the law, or 

based on his disabilities.
4 LOPEZ V. GARLAND

Finally, the panel concluded that substantial evidence 

supported the denial of withholding of removal. As to past 

persecution, the record did not compel the conclusion that 

the abuse Lopez’s mother suffered by his father while she 

was pregnant with Lopez was directed intentionally at him.

The record supported the agency’s conclusion that Lopez 

will not face future persecution in Mexico based on his 

identity as his mother’s son.

Concurring in part and dissenting in part, Judge Sanchez 

joined in the majority’s application of Loper Bright and its 

determination that Diaz-Lizarraga is entitled to Skidmore

deference. However, he disagreed with the majority that 

Lopez’s convictions are CIMTs. Observing that the 

ordinance does not define what an “intent to deprive” means, 

Judge Sanchez wrote that, by its plain terms, the ordinance 

is not limited to takings considered CIMTs under DiazLizarraga. Further, he wrote that the majority erred by 

reaching for an interpretation not found in the text of the 

ordinance or any decision by a Nevada state court, and that 

the majority ignored that courts must construe statutory 

ambiguities in favor of the person facing removal. Judge 

Sanchez would grant Lopez’s petition.

COUNSEL

Kyle Edgerton (argued), Edgerton Legal LLC, Reno, 

Nevada, for Petitioner.

Spencer S. Shucard (argued), Trial Attorney; Keith I. 

McManus, Assistant Director; Office of Immigration 

Litigation; Brian M. Boynton, Civil Division, United States 

Department of Justice, Washington, D.C.; for Respondent.
LOPEZ V. GARLAND 5

OPINION

THOMAS, Circuit Judge:

Christian Lopez, a native and citizen of Mexico, seeks 

review of a decision by the Board of Immigration Appeals 

(“BIA”) dismissing his appeal from a decision by an 

immigration judge (“IJ”) finding him removable due to the 

commission of crimes involving moral turpitude (“CIMTs”) 

and denying asylum and related relief. We deny the petition 

for review.

The BIA had jurisdiction to review the IJ’s decision 

under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction to 

review the BIA’s final order of removal under 8 U.S.C. 

§ 1252(b)(2).

We review legal questions, including questions of 

statutory interpretation, de novo. Diaz-Quirazco v. Barr, 

931 F.3d 830, 838 (9th Cir. 2019). Prior to the Supreme 

Court’s decision in Loper Bright Enterprises v. Raimondo, 

144 S. Ct. 2244 (2024), we would determine whether the 

agency’s interpretation was due deference under Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984). See Diaz-Quirazco, 931 F.3d at 838–39. 

However, after Loper Bright Enterprises, we may look to 

agency interpretations for guidance, but do not defer to the 

agency. 144 S. Ct. at 2266–67; see Skidmore v. Swift & Co., 

323 U.S. 134, 140 (1944) (explaining that, while an agency’s 

interpretation is “not controlling,” it may still have “power 

to persuade” based on “the thoroughness evident in its 

consideration, the validity of its reasoning, [and] its 

consistency with earlier and later pronouncements”). We 

review factual findings, including those that underlie 

eligibility determinations for asylum and related relief, under 
6 LOPEZ V. GARLAND

the substantial evidence standard. Rodriguez Tornes v. 

Garland, 993 F.3d 743, 750 (9th Cir. 2021). 

Where the BIA issues its own review of the evidence and 

law, our “review is limited to the BIA’s decision, except to 

the extent the IJ’s opinion is expressly adopted.” Guerra v. 

Barr, 974 F.3d 909, 911 (9th Cir. 2020)(internal quotation 

marks omitted). The portions of the IJ decision that are 

“incorporated” by the BIA are treated as part of the BIA 

decision. Maie v. Garland, 7 F.4th 841, 845 (9th Cir. 2021). 

I

Lopez was brought to the United States by his mother, 

Yadira, when Lopez was approximately two years old. 

Yadira left Mexico with her children due to domestic 

violence perpetrated by Lopez’s father, Rodrigo. According 

to Yadira, Rodrigo routinely inflicted serious physical 

violence on her that sometimes resulted in bleeding and loss 

of consciousness. The violence was especially brutal during 

Yadira’s pregnancy with Lopez, when Rodrigo “beat [her] 

in the stomach” and tried to choke her. Yadira also testified 

that Rodrigo was violent towards their children. When asked 

to speculate about Rodrigo’s motive, Yadira testified that the 

violence seemed to “start out of nothing” and was likely 

exacerbated by drug use. Yadira contacted the police at least 

once but reported that they did nothing to help. Yadira 

testified that, after Lopez was born, Rodrigo “rejected” his 

son and expressed suspicions that Yadira had been 

unfaithful. Lopez required special assistance in school 

throughout his childhood. 

Upon arriving in the United States in 2000, Yadira and 

Lopez lived for approximately thirteen years without lawful 

immigration status and did not file for asylum. In 2013, one 

of Lopez’s relatives received a T visa, which made Lopez 
LOPEZ V. GARLAND 7

eligible for T-5 nonimmigrant status as a family beneficiary. 

However, in 2017, Lopez inadvertently allowed his T-5 

status to expire. At that point, Lopez was 19 years old. 

In July 2019, Lopez was arrested while driving a friend’s 

borrowed car that had been reported as stolen. Once in 

custody, Lopez was charged with numerous offenses 

including trespassing, shoplifting, and carrying a concealed 

weapon without a permit. Lopez pleaded guilty in 

September 2021 to the felony weapons charge and four 

municipal charges of petit larceny under section 8.10.040 of 

the Reno Municipal Code (“RMC”) in exchange for 

dismissal of the remaining charges. Records from Reno 

Municipal Court list the dates for Lopez’s larceny offenses 

as May 14, May 17, May 21, and May 28, 2019. Lopez was 

sentenced to 12–30 months in Nevada prison for the 

weapons charge. After serving 14 months, Lopez was 

released from prison in January 2021 and placed directly in 

the custody of the Department of Homeland Security 

(“DHS”).

On January 22, 2021, DHS initiated removal 

proceedings by serving Lopez with a notice to appear 

(“NTA”) charging him as removable under Section 237 of 

the Immigration and Nationality Act (“INA”). The NTA 

lists, as the sole basis for removability, the fact that Lopez 

was “convicted of two crimes involving moral turpitude not 

arising out of a single scheme of criminal misconduct.” See 

8 U.S.C. § 1227(a)(2)(A)(ii). The convictions referenced in 

the NTA are the four counts of petit larceny under 

RMC § 8.10.040. 

Lopez argued before the IJ that his municipal charges did 

not provide a valid basis for removal for three reasons. First, 

he argued that RMC § 8.10.400 does not “categorically” 
8 LOPEZ V. GARLAND

describe a CIMT because it does not include the requisite 

intent element. Second, he argued that his larceny 

convictions arose from a “single scheme of criminal 

misconduct,” and thus did not qualify as “two crimes” for 

the purpose of subsection 1227(a)(2)(A)(ii). The IJ rejected 

these arguments in a written decision on March 30, 2021, 

and the BIA declined to consider Lopez’s interlocutory 

appeal. Lopez subsequently filed a motion presenting a third 

argument for terminating removal based on the 

unavailability of a pardon for his municipal offenses.

Concurrently, Lopez filed an application for asylum, 

withholding of removal, and protection under the 

Convention Against Torture (“CAT”) in May 2021. For 

asylum and withholding, Lopez claimed membership in four 

particular social groups (“PSGs”): (1) immediate relatives of 

Yadira, (2) “rejected children of Mexican men,” (3) “recent 

Mexican deportees perceived as pochos,” and (4) individuals 

with “actual and imputed anti-gang political opinion.” 

Lopez argued that he suffered past persecution in utero 

based on Rodrigo’s abuse of Yadira during her pregnancy. 

Lopez also asserted a fear of future persecution at the hands 

of his father, and from elements of Mexican society that are 

hostile to abandoned children, deportees from the United 

States, and individuals involved in anti-gang activism. 

Lopez’s I-589 acknowledged that the application was filed 

more than one year after the lapse of his T status, but 

explained that he previously “had no access to legal advice” 

or information about the asylum process. Lopez argued that 

he should be granted an exception to the ordinary deadline 

due to changed or exceptional circumstances.

On October 5, 2021, the IJ found Lopez removable under 

8 U.S.C. § 1227(a)(2)(A)(ii) and denied Lopez’s application 

for asylum, withholding, and relief under CAT. The IJ 
LOPEZ V. GARLAND 9

denied Lopez’s asylum application as untimely, and rejected 

his argument that impending deportation constituted 

changed circumstances because doing so would allow him 

to “benefit from committing criminal acts.” The IJ denied 

Lopez’s application for withholding of removal because 

Lopez failed to demonstrate a nexus between his fear of 

future harm and any protected ground. The IJ addressed 

each of Lopez’s claimed PSGs in turn. First, the IJ addressed 

Lopez’s argument that he was persecuted in utero by his 

father. The IJ concluded that his mother’s testimony of 

domestic violence was credible, but that it did not constitute 

persecution against Lopez because he was not born, and 

Lopez did not demonstrate that his father had any intent to 

harm him specifically. Next, the IJ rejected Lopez’s claim 

based on paternal abandonment and his status as a recent 

deportee because neither constitutes a PSG with “the 

requisite social visibility.” Finally, the IJ rejected Lopez’s 

claim based on his “potential anti-gang opinion” because 

“returning Mexicans . . . at risk of being targeted . . . by 

gangs” do not constitute a viable PSG. The IJ also denied 

Lopez’s application for CAT relief because there was no 

indication that anyone (including his father or uncle) had any 

interest in torturing him, or that such torture would happen 

“with the consent or acquiescence of a public official.”

Lopez timely appealed to the BIA, and filed a brief 

challenging both the legal basis for removal and the IJ’s 

denial of Lopez’s application for asylum, withholding, and 

CAT relief. On May 3, 2023, the BIA issued its decision 

affirming the IJ’s decision on all counts and dismissing 

Lopez’s appeal. Reviewing the removability issue de novo, 

the BIA concluded that Lopez’s municipal convictions 

involved CIMTs because the RMC should be construed in 

accordance with the Nevada state larceny statute, which 
10 LOPEZ V. GARLAND

categorically defines larceny as a CIMT. See Harvey v. 

State, 375 P.2d 225, 226 (Nev. 1962). The BIA disposed of 

Lopez’s other arguments about removability by citing 

applicable precedent decisions that it “decline[d] to revisit.” 

See Matter of Adetiba, 20 I. & N. Dec. 506; Matter of Nolan, 

19 I. & N. Dec. 539.

The BIA affirmed the IJ’s determination that Lopez did 

not demonstrate circumstances warranting an exception to 

the asylum filing deadline. The BIA also affirmed the IJ’s 

denial of withholding and CAT relief on the merits, holding 

that the IJ’s factual findings were supported by substantial 

evidence. Lopez timely petitioned for review before this 

Court, challenging both the basis for removability and denial 

of his claim for asylum and withholding. 

II

The BIA correctly concluded that Lopez is removable 

based on his municipal convictions for petty larceny. We 

review Lopez’s three arguments contesting removability and 

conclude that each is foreclosed by the proper interpretation 

of the INA.

A

We begin by considering Lopez’s argument that the 

ordinance under which he was convicted does not 

categorically define a CIMT because it does not specify 

whether the deprivation of property is permanent or 

temporary. We conclude that the BIA’s most recent

interpretation of the INA holding that a theft offense 

constitutes a CIMT if it includes an intent to deprive “either 

permanently or under circumstances where the owner’s 

property rights are substantially eroded,” Matter of DiazLizarraga, 26 I. & N. Dec. 847, 854 (BIA 2016)(emphasis 
LOPEZ V. GARLAND 11

added), is entitled to respect under Skidmore, 323 U.S. 134. 

Applying the BIA’s interpretation, we conclude that a 

conviction under Reno’s petit larceny ordinance, RMC 

§ 8.10.040, is categorically a CIMT.

To determine whether an offense is a CIMT, we employ 

the “categorical approach” which focuses on the elements of 

the crime as stated in the relevant statute or ordinance rather 

than the specific conduct of the individual. Pereida v. 

Wilkinson, 592 U.S. 224, 233 (2021); Barbosa v. Barr, 926 

F.3d 1053, 1057 (9th Cir. 2019). Under this approach, “we 

compare the elements of the state offense”—or in this case, 

municipal offense—“to the elements of the generic offense 

defined by federal law.” Almanza-Arenas v. Lynch, 815 F.3d 

469, 475 (2016) (en banc) (quoting Lopez–Valencia v. 

Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015)). If the 

elements of the state or municipal crime are “the same as or 

narrower than” the elements of a generic CIMT, it is a 

“categorical match” and “every conviction qualifies as [a 

CIMT].” Id. If, by contrast, the state or local statute sweeps 

more broadly and criminalizes conduct that falls out the 

generic federal definition, a conviction does not qualify as a 

CIMT. Maie, 7 F.4th at 849.1

Prior to Loper Bright Enterprises, we would, under 

Chevron, defer to the BIA’s specification of the “subset of 

theft offenses” that constitute CIMTs “when articulated by 

the BIA in a published opinion.” See Silva v. Garland, 993 

F.3d 705, 713 (9th Cir. 2021). Now, our task is to evaluate 

the statute independently under Skidmore, giving “due 

1 Neither the IJ nor the BIA relied on the modified categorical approach, 

so that is not at issue in this petition for review.
12 LOPEZ V. GARLAND

respect,” but not binding deference to the agency’s 

interpretation. Loper Bright Enter., 144 S. Ct. at 2266–67.2 

As the Supreme Court explained in Skidmore, agency 

decisions “while not controlling upon the courts by reason 

of their authority, do constitute a body of experience and 

informed judgment to which courts and litigants may 

properly resort for guidance.” 323 U.S. at 140. And “[t]he 

weight of such a judgment in a particular case will depend 

upon the thoroughness evident in its consideration, the 

validity of its reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power 

to persuade, if lacking power to control.” Id. Under 

Skidmore, “[t]he deference given to an agency action may 

range from great respect to near indifference, depending on 

the degree of the agency’s care, its consistency, formality, 

and relative expertness, and . . . the persuasiveness of the 

agency’s position.” Bax v. Doctors Med. Ctr. of Modesto, 

Inc., 52 F.4th 858, 872 (9th Cir. 2022) (cleaned up). Thus, 

we have upheld BIA interpretations under Skidmore when 

the BIA “‘confront[ed] an issue germane to the eventual 

resolution of the case’ and ‘resolve[d] it after reasoned 

consideration.’” Alcarez-Rodriguez v. Garland, 89 F.4th 

2 Loper Bright Enterprises also instructed that “when a particular statute

delegates authority to an agency consistent with constitutional limits, 

courts must respect the delegation, while ensuring that the agency acts 

within it.” 144 S. Ct. at 2273. Here, we are mindful that the governing 

statute provides that “[t]he Secretary of Homeland Security shall be 

charged with the administration and enforcement of this chapter and . . . 

determination and ruling by the Attorney General with respect to all 

questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). However, 

for the purposes of this case, we need not—and do not–determine 

whether this provision is a statute that expressly delegates interpretative 

authority to the agency.
LOPEZ V. GARLAND 13

754, 762 (9th Cir. 2023) (quoting Route v. Garland, 996 F.3d 

968, 977 (9th Cir. 2021)).

With that guidance in mind, we examine the BIA’s 

precedent decision in Diaz-Lizarraga, in the context our 

jurisprudence. In Diaz-Lizarraga, which involved a 

shoplifting offense, the BIA revised its prior interpretation 

of the distinction between theft CIMTs and nonturpitudinous temporary takings in light of the developments 

in state criminal law. 26 I. & N. Dec. at 851–52. The BIA 

explained that the purpose of the “traditional dichotomy of 

permanent versus temporary takings,” was to separate 

morally “reprehensible conduct” from that conduct that 

reflects a less culpable mental state. Diaz-Lizarraga, 26 I. 

& N. Dec. at 849–51. Surveying contemporary state law in 

all fifty states, however, the BIA concluded that criminal law 

had since evolved to “recognize that many temporary takings 

are as culpable as permanent ones.” Id. at 851. As such, the 

BIA decided to revise its interpretation to track the 

“mainstream, contemporary understanding of theft” 

reflected in the Model Penal Code. Id. at 852–54. Although 

Diaz-Lizarraga is inconsistent with 

“earlier . . . pronouncements,” Skidmore, 323 U.S. 134, 140, 

the BIA carefully explained why the revised interpretation is 

nonetheless consistent with the agency’s longstanding 

distinction—which we have also endorsed, see GaleanaMendoza v. Gonzales, 465 F.3d 1054, 1058 (9th Cir. 

2006)—between reprehensible and non-reprehensible 

criminal conduct, Diaz-Lizarraga, 26 I. & N. Dec. at 853–

54. 

The BIA’s decision in Diaz-Lizarraga is thorough and 

well-reasoned. It is, as we shall explain, also consistent with 

judicial precedent. We have previously stated that “the 

generic definition of a crime involving moral turpitude is a 
14 LOPEZ V. GARLAND

crime involving conduct that (1) is base, vile, or depraved 

and (2) violates accepted moral standards.” Navarro-Lopez 

v. Gonzales, 503 F.3d 1063, 1068 (9th Cir. 2007) (en banc), 

overruled on other grounds by United States v. AguilaMontes de Oca, 655 F.3d 915 (9th Cir. 2011). “Our 

understanding of the general meaning of this amorphous 

phrase does not vary materially from that of the BIA,” which 

has defined morally turpitudinous conduct as that which is 

“inherently base, vile or depraved.” Galeana-Mendoza, 465 

F.3d at 1058 n.9 (quoting In re Danesh, 19 I. & N. Dec. 669, 

670 (BIA 1988)). For theft offenses, we have consistently 

held that acts of theft, are “crime[s] of moral turpitude” 

regardless of “whether the theft be petty or grand.” United 

States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 

1999). However, like the BIA, we have also recognized that 

convictions under certain “theft” statutes do not qualify as 

CIMTs because they sweep more broadly to criminalize 

“conduct involving [a] less culpable mens rea,” Maie, 7 

F.4th at 851, such as “joyriding,” “receipt of stolen 

property,” or “failure to make required disposition of funds,” 

see Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 

2009); see also Maie, 7 F.4th at 849. Diaz-Lizarraga retains 

this core distinction, expressly affirming that it is still 

“appropriate to distinguish between substantial and de 

minimis takings when evaluating whether theft offenses 

involve moral turpitude.” 26 I. & N. at 851. 

The BIA’s revised interpretation is also consistent with 

the generic definition of theft that has been adopted for other 

purposes by the Supreme Court and the Model Penal Code. 

For example, for the purpose of determining whether a theft 

offense is an “aggravated felony,” 8 U.S.C. 

§ 1227(a)(2)(A)(iii), the Supreme Court has endorsed a 

generic definition of theft as a “taking of property or an 
LOPEZ V. GARLAND 15

exercise of control over property without consent with the 

criminal intent to deprive the owner of rights and benefits of 

ownership, even if such deprivation is less than total or 

permanent.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 

184 (2007) (emphasis added) (quoting Penuliar v. Gonzales, 

435 F.3d 961, 969 (9th Cir. 2006)). 

Likewise, the Model Penal Code defines “theft by 

unlawful taking” to require an intent to “withhold property 

of another permanently or for so extended a period as to 

appropriate a major portion of its economic value . . . or to 

dispose of the property so as to make it unlikely that the 

owner will recover it.” See Model Penal Code §§ 223.0 

(defining “deprive”), 223.2 (defining “theft by unlawful 

taking or disposition). “[A]n offense’s definition in the 

Model Penal Code can serve as an aid in determining the 

‘generic’ meaning of the offense.” United States v. 

Rodriguez-Guzman, 506 F.3d 738, 744 (9th Cir. 2007) 

(citing Taylor v. United States, 495 U.S. 575, 598 n.8 

(1990)). 

Given these considerations, we conclude that DiazLizarraga is entitled to “Skidmore deference.” Orellana v. 

Barr, 967 F.3d 927, 934 (9th Cir. 2020). Exercising our 

independent evaluation of the statute, we conclude that as 

applied to theft offenses, the statutory phrase “crimes 

involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), 

encompasses offenses that require the government to prove 

the defendant acted with an intent to permanently deprive an 

owner’s property or substantially erode the owner’s property 

rights. Offenses that criminalize less culpable conduct, 

including temporary takings with the intent return to the 

owner shortly thereafter, however, are still categorically 

overbroad. 
16 LOPEZ V. GARLAND

In reaching this conclusion, we are mindful that DiazLizarraga overruled long-standing BIA precedent that 

created a sharp distinction between permanent and 

temporary property deprivations and holding that an intent 

to deprive permanently was a necessary element of a CIMT. 

See In re R–, 2 I. & N. Dec. 819, 828 (B.I.A. 1947); see also 

In re P–, 2 I. & N. Dec. 887, 887 (B.I.A. 1947); In re H–, 2 

I. & N. Dec. 864, 865 (B.I.A. 1947); In re T–, 2 I. & N. Dec. 

22, 42 (Op. Att'y Gen. 1944). 

We have historically endorsed this BIA’s prior 

interpretation under Chevron. See, e.g. Castillo-Cruz, 581 

F.3d at 1160. Applying the prior BIA permanent deprivation 

requirement, for example, we held that state theft statutes 

that are broad enough to “penalize[] temporary takings” do 

not categorically describe CIMTs. Lozano-Arredondo v. 

Sessions, 866 F.3d 1082, 1088 (9th Cir. 2017) (analyzing 

Idaho Code Ann. § 18-2403); see also Garcia-Martinez v. 

Sessions, 886 F.3d 1291, 1294 (9th Cir. 2018) (analyzing Or. 

Rev. Stat. Ann. § 164.015). We have not yet, however, had 

occasion to decide whether the BIA’s revised interpretation 

in Diaz-Lizarraga reflects the correct interpretation of 

“moral turpitude” in the context of theft offenses, nor 

whether it was entitled to Chevron deference.3 In light of the 

3

In cases addressing whether a theft offense constitutes a CIMT since 

2016, we have declined to decide whether Diaz-Lizarraga reflects a 

lawful interpretation of the statute. See Maie, 7 F.4th at 847 (“[W]e do 

not review whether Diaz-Lizarraga was correctly decided”); Silva, 993 

F.3d at 717 (holding that offense was a CIMT “regardless” of whether 

Diaz-Lizarraga applies); Lozano-Arredondo, 866 F.3d at 1087 n.3 

(holding that Idaho’s theft statute is overbroad even under the revised 

Diaz-Lizarraga definition); Barbosa, 926 F.3d at 1058 (“[T]he new 

[Diaz-Lizarraga] standard does not apply retroactively to [this] case.”) 

(emphasis added); Garcia-Martinez, 886 F.3d at 1296 (“[T]he changed 

rule should not be applied [retroactively] in this situation.”).
LOPEZ V. GARLAND 17

BIA’s thoroughness, persuasive reasoning, and consistency 

with the longstanding distinction between substantial and de 

minimis takings, we conclude that the BIA’s 2016 

interpretation is correct. 

With this revised definition of a CIMT in mind, we must 

decide whether Lopez’s convictions meet that definition. 

Garcia-Martinez, 886 F.3d at 1293. The ordinance under 

which Lopez was convicted provides that:

It is unlawful for any person to take or carry 

away the property of another with the intent 

to deprive the owner of his property therein 

in any value less than $650.00 and for his 

conviction therefore, he shall be fined in an 

amount not more than $1,000.00 and/or be 

incarcerated not more than six months. In 

addition to any other penalty, the court shall 

order the person to pay restitution. 

RMC § 8.10.040. 

The RMC does not define “deprive,” but instructs that 

“[w]ords and phrases not specifically defined shall be 

construed according to the context and approved usage.” 

RMC § 1.01.030(4). To ascertain the commonly accepted 

“usage” of the term, we consult both the Model Penal Code 

and Nevada state law, both of which define “deprive” as a 

“withholding” that is either permanent or for so long that a 

substantial portion of its value to the owner is lost. See 

Model Penal Code § 223.0; Nev. Rev. Stat. § 205.0824. 

Reading the RMC § 8.10.040 with these definitions of 

“deprive” in mind, we conclude that the ordinance does not 

encompass de minimis temporary takings. Under Diaz-
18 LOPEZ V. GARLAND

Lizarraga, with which we agree, RMC § 8.10.040 

categorically defines a CIMT. As such, Lopez’s convictions 

under the ordinance provide a proper basis for removal under 

8 U.S.C. § 1227(a)(2)(A)(ii) because RMC § 8.10.040 

requires an intent to permanently deprive or substantially 

erode an owner’s property interest.

B

We next address Lopez’s argument that the INA’s 

“pardon waiver” provision means he cannot be removed 

based on a CIMT conviction for which there is no available 

pardon. Interpreting the statute independently, we conclude 

that the BIA correctly concluded that the possibility of 

obtaining a pardon is not a prerequisite to removal under 8 

U.S.C. § 1227(a)(2). 

The pardon waiver is an exception to the statute 

providing that a noncitizen can be removed for committing 

a CIMT and provides that the statute “shall not apply in the 

case of an alien with respect to a criminal conviction if the 

alien subsequent to the criminal conviction has been granted 

a full and unconditional pardon by the President of the 

United States or by the Governor of any of the several 

States.” 8 U.S.C. § 1227(a)(2)(A)(vi). Lopez argues that his 

convictions are not a proper basis for removal under section 

1227(a)(2)(A)(ii) because he is unable to obtain a pardon for 

a petty municipal offense. Because we have not previously 

addressed the meaning of pardon waiver in this context, we 

undertake the statutory analysis independently, giving 

proper respect but not controlling deference to the views of 

the BIA. Loper Bright Enter., 144 S. Ct. at 2269–70.

To understand the applicability of the pardon waiver in 

this context, a brief review of the statutory history is 

instructive. Prior to 1917, there was no provision of the 
LOPEZ V. GARLAND 19

immigration statutes that provided a deportation exception 

when the noncitizen had been pardoned. Jason A. Cade, 

Deporting the Pardoned, 46 U.C. Davis L. Rev. 355, 366 

(Dec. 2012). However, various administrative opinions at 

the time supported a general understanding that a pardon 

removed immigration consequences of a crime. Id. The 

Immigration Act of 1917 provided for deportability for a 

CIMT, but also provided that deportation for committing a 

CIMT did not apply to noncitizens who had been pardoned. 

39 Stat 874, 889–90. The Act also allowed for a presiding 

judge to make a Judicial Recommendation Against 

Deportation (“JRAD”). Id. This provision was 

“consistently...interpreted as giving the sentencing judge 

conclusive authority to decide whether a particular 

conviction should be disregarded as a basis for deportation.” 

Padilla v. Kentucky, 559 U.S. 356, 362 (2010) (quoting 

Janvier v. United States, 793 F.2d 449, 452 (2nd Cir. 1986)). 

Congress narrowed the JRAD provision in the 1952 

Immigration and Nationality Act, and then completely 

eliminated it in 1990. Id. at 363. The 1952 Act also changed 

the pardon waiver language which referenced only a 

“pardon” to require “a full and unconditional pardon” which 

was granted by the President or a Governor. Cade, supra, at 

371. 

The BIA has addressed the meaning of the pardon waiver 

in two decisions, the second of which overruled the first. In 

Matter of Cevallos, 12 I. & N. Dec. 750, 750 (BIA 1968), 

the BIA announced its own official interpretation that “[t]he 

conviction of an offense for which there is no pardoning 

authority . . . is not a conviction of a ‘crime’ within the 

meaning of [8 U.S.C. § 1227(a)(2)].” As in this case, 

Cevallos dealt with a municipal conviction for petty larceny. 

Id. at 750–51. Because “one convicted of a violation of a 
20 LOPEZ V. GARLAND

municipal ordinance” in Florida could not “apply for and 

have an application for pardon considered,” the BIA 

concluded a noncitizen could not be deported on the basis of 

those convictions. Id. at 751.

Twenty years later, the BIA overruled Cevallos in Matter 

of Nolan, 19 I. & N. Dec. 539 (BIA 1988). In Nolan, the 

respondent challenged his deportation based on an attempted 

burglary conviction for which he received an “automatic 

pardon” as a first-time felony offender under the Louisiana 

Constitution. Id. at 540–41; see La. Const. art. IV, § 5 (E)(1). 

The BIA concluded that, because the pardon was automatic, 

it was not “full and unconditional” as required by the statute.

Matter of Nolan, 19 I. & N. Dec at 942-43. Further, the BIA 

held the fact that the respondent could not obtain a second 

pardon that would conform to the section 1227(a)(2)(A)(vi) 

was irrelevant. Id. at 545. “In our view, the availability or 

unavailability of a pardon under state or federal law, or the 

existence or nonexistence of a qualifying pardoning 

authority, has no bearing on . . . whether an offense 

constitutes a ‘crime’ for the purpose of deportability[.]” Id. 

(emphasis added). The BIA explained its decision to 

abandon Cevallos briefly, emphasizing two points. First, 

Cevallos had not subsequently been relied on by the BIA or 

“any court.” Id. at 544. Second, Cevallos might perversely 

protect aggravated offenders whom a state intentionally 

“preclude[s]” from obtaining a pardon from deportation. Id. 

In the intervening thirty-six years, no federal court of appeals 

has addressed whether Nolan’s interpretation is reasonable 

with respect to pardon availability. 

Against this background, and pursuant to Loper Bright 

Enterprises, 144 S. Ct. at 2273, we proceed to construe the 

statute independently. We begin, as always, with the plain 

language of the statute. Cheneau v. Garland, 997 F.3d 916, 
LOPEZ V. GARLAND 21

920 (9th Cir. 2021) (en banc). If the plain language is clear, 

our inquiry is complete. United States v. 475 Martin Lane, 

545 F.3d 1134, 1143 (9th Cir. 2008).

Here, the plain language of the statute provides only that 

relief is available when the petitioner “has been granted a 

full and unconditional pardon by the President of the United 

States or by the Governor of any of the several States.” The 

statute does not indicate that a pardon must be available. If 

Congress had intended the pardon waiver to include crimes 

for which no pardon was available, it could easily have said 

so. To add “or is otherwise unavailable” to the phrase “has 

been granted” would be to insert a different concept into the 

statute. As the Supreme Court observed long ago, “[w]hen 

the language is plain, we have no right to insert words and 

phrases, so as to incorporate in the statute a new and distinct 

provision.” United States v. Temple, 105 U.S. 97, 99 (1881); 

see United States v. Johnson, 529 U.S. 53, 58 (“When 

Congress provides exceptions in a statute, it does not follow 

that courts have authority to create others. The proper 

inference . . . that Congress considered the issue of 

exceptions and, in the end, limited the statute to the ones set 

forth.”) 

Although there are no controlling precedential cases 

squarely on point, courts have strictly construed the pardon 

waiver. The Supreme Court rejected the application of the 

provision to a pardon conditioned on good behavior, even 

though the pardon had been issued before the 1952 

amendments altering the language of the pardon waiver. 

Lehman v. United States, 353 U.S. 685, 686-90 (1957). 

Although our sister circuits have not directly addressed the 

issue in this case, they have rejected attempts to expand the

pardon waiver by implication. For example, in 

Wojciechowicz v. Garland, 77 F.4th 511, 517 (7th Cir. 
22 LOPEZ V. GARLAND

2023), the Seventh Circuit declined to expand the pardon 

waiver to include determinations of inadmissibility, as well 

as removals. In Tetteh v. Garland, 995 F.3d 361, 366 (4th 

Cir. 2021), the Fourth Circuit declined to expand the pardon 

waiver beyond the enumerated grounds for removal. In 

Aristy-Rosa v. Attorney General, 994 F.3d 112, 115 (3d Cir. 

2021), the Third Circuit rejected an argument that Congress 

implied a pardon waiver for controlled substance offenses. 

In each of these cases, our sister Circuits founded their 

decisions on the plain text of the statute.

Here, construing the pardon waiver to prohibit 

deportation in circumstances where no pardon had been 

issued would fly in the face of the plain statutory terms, and 

would preclude removability for large categories of crimes 

for which the statute provided for removals. Given the plain 

words of the statute, we not only agree with the BIA’s 

application of Matter of Nolan to this case and afford it 

Skidmore deference, but also independently conclude, based 

on our own statutory analysis, that the pardon waiver does 

not require availability of a pardon to find a conviction to be 

a proper basis for removal. 

Lopez relies on Matter of Cevallos, which the BIA has 

overruled, and two court cases: Gubbels v. Hoy, 261 F.2d 

952 (9th Cir. 1958) and Costello v. INS, 376 U.S. 120 (1964). 

Neither case is on point. Gubbels involved the availability 

of a JRAD in court martial proceedings. 261 F.2d at 953. In 

Gubbels, we held that a noncitizen who was convicted by 

court-martial could not be deported based on those crimes 

because there was no way he could obtain a JRAD from the 

prosecuting entity. Id. at 955-56. That case did not involve 

the pardon waiver at issue here. In Costello v. INS, the 

Supreme Court considered whether crimes committed by a 

naturalized citizen could later be used to deport the petitioner 
LOPEZ V. GARLAND 23

after he was denaturalized. 376 U.S. at 121. The petitioner’s 

argument was that he could be deported only for crimes 

committed while he was a noncitizen, and involved a 

semantic interpretation of a phrase not at issue in this case. 

Id. at 121-22. The case did not involve the pardon waiver or 

the construction of the statutory language we consider here.

In sum, we conclude that the plain language of the 

pardon waiver precludes Lopez’s interpretation. The 

potential lack of availability of a pardon for a particular 

conviction does not render the conviction an improper basis 

for removal.4

C

Finally, we consider Lopez’s argument that he cannot be 

deported based on his four larceny convictions because they 

arose from a “single scheme” of misconduct. 

Pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), a non-citizen 

may be removed if he “at any time after admission is 

convicted of two or more crimes involving moral turpitude, 

not arising out of a single scheme of criminal 

misconduct . . . .” (emphasis added). Interpreting the phrase 

“single scheme,” the BIA held that:

[W]hen an alien has performed an act, which, 

in and of itself, constitutes a complete, 

individual, and distinct crime, he is 

deportable when he again commits such an 

4 Given our resolution of the issue, we need not —and do not—determine 

whether a pardon is actually available for Lopez’s municipal 

convictions. We simply assume, arguendo, that no pardon is available 

for the crimes at issue. The Nevada Supreme Court has not decided that 

question, and we express no opinion on that issue. 
24 LOPEZ V. GARLAND

act, even though one may closely follow the 

other, be similar in character, and even be 

part of an overall plan of criminal 

misconduct.

Matter of Adetiba, 20 I. & N. Dec. 506, 509 (BIA 1992). 

In Szonyi v. Whitaker, 915 F.3d 1228, 1232-35 (9th Cir. 

2019), we endorsed Adetiba as a reasonable interpretation of 

the statute. Although we recognized in Szonyi that it was 

somewhat in tension with prior Ninth Circuit authority, 

including Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), Szonyi 

remains precedential authority which binds us. And, 

although Szonyi relied on Chevron, the Supreme Court has 

instructed that Loper Bright Enterprises does not “call into 

question prior cases that relied on the Chevron framework.” 

144 S. Ct. at 2273. And unlike the CIMT interpretation 

discussed in section II.a, the BIA has not promulgated a new 

interpretation of the statute to prompt us to reconsider our 

precedent.

Lopez argues that the petty larcenies that were 

committed on four separate occasions were part of a single 

crime spree and therefore exempt. This argument is 

precluded by Szonyi because Lopez was convicted of four 

“complete, individual, and distinct” criminal municipal 

charges of petit larceny notwithstanding the fact that they 

followed in quick succession and in response to similar 

material circumstances. Szonyi, 915 F.3d at 1232–33 

(quoting Adetiba, 20 I. &. N. Dec. at 509). Pursuant to 

Szonyi, these crimes did not form “a single scheme of 

criminal misconduct” that would exempt him from 

deportation under 8 U.S.C. § 1227(a)(2)(A)(ii).
LOPEZ V. GARLAND 25

Lopez urges us to return to our pre-Szonyi jurisprudence. 

However, as a three-judge panel, we lack the authority to 

overrule existing circuit precedent absent “intervening

higher authority” that is “clearly irreconcilable with” Szonyi. 

Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) 

(en banc). There is no such authority, so Szonyi binds us, 

and forecloses Lopez’s argument.

III

Having concluded that the BIA did not err in finding 

Lopez removable based on his municipal convictions, we 

turn to Lopez’s application for asylum and withholding of 

removal. 

A

Although we lack jurisdiction to review the BIA’s 

timeliness determination under 8 U.S.C. § 1158(a)(2)(B), we 

have jurisdiction to review the BIA’s conclusion regarding 

the availability of equitable tolling due to “changed” or 

“extraordinary circumstances,” where the facts are 

undisputed. Alquijay v. Garland, 40 F.4th 1099, 1102 (9th 

Cir. 2022); Ramadan v. Gonzales, 479 F.3d 646, 649–50 (9th 

Cir. 2007) (per curiam). The BIA’s determination of 

whether undisputed facts constitute “changed” or 

“extraordinary circumstances” is a mixed question of fact 

and law, which we review de novo. Ramadan, 479 F.3d at 

650. We conclude that the BIA did not err in denying 

Lopez’s asylum application as untimely. 

Lopez concedes that his application was filed well after 

the one-year deadline, but offers two arguments for why he 

should have been granted an exception due to “changed” or 

“extraordinary” circumstances. U.S.C. § 1158(a)(2)(D). 

First, Lopez argues that the consequences of his immigration 
26 LOPEZ V. GARLAND

status did not become salient until he received the NTA 

following his convictions. But neither youth nor “ignorance 

of the legal requirement[s] [for asylum]” constitute 

extraordinary circumstances. Alquijay, 40 F.4th at 1103.

Second, Lopez argues that the BIA failed to “take 

seriously” his argument that he is entitled to an exception 

based on disability. Lopez raised this argument for the first 

time on appeal, citing both a learning disability that was 

diagnosed during childhood and mental illness that was 

diagnosed while he was in immigration detention. The only 

evidence proffered to the BIA was for the former and “predate[d] the [IJ’s] decision by several years,” which the BIA 

deemed not “material new evidence.” Under these 

circumstances, the BIA “may apply a procedural default rule 

to arguments raised for the first time on appeal.” Honcharov 

v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019) (per curiam). 

Without evidence of Lopez’s recent diagnoses in the record, 

there is no undisputed factual basis to conclude that his 

mental illness constitutes “extraordinary circumstances.” 

See Toj-Culpatan v. Holder, 612 F.3d 1088, 1090 (9th Cir. 

2010) (assessing whether the record demonstrates 

“extraordinary circumstances”). 

B

Substantial evidence supports the agency’s denial of 

Lopez’s application for withholding of removal based its 

conclusion that he did not demonstrate likelihood of 

persecution based on family membership. 

As to past persecution, the agency concluded that the 

harm Lopez suffered “in utero” did not constitute past 

persecution because it was not motivated by animosity on 

account of his familial relationship with his mother. The 

record demonstrates that Yadira suffered serious domestic 
LOPEZ V. GARLAND 27

abuse during her pregnancy that impacted Lopez physically, 

emotionally, and cognitively. The record does not, however, 

compel the conclusion that the abuse was directed 

intentionally at Lopez, who was not yet born at the time. In 

the agency’s view, Lopez was an incidental victim of the 

abuse against his mother—not the direct target. The record 

does not compel reversal of this conclusion. 

The record also supports the agency’s conclusion that 

Lopez will not face future persecution based on his identity 

as Yadira’s son. Lopez did not provide any evidence that 

Lopez’s father or paternal relatives have any interest in 

harming him as an adult. To the contrary, the record shows 

that Rodrigo has been absent from his children’s lives. 

Accordingly, the record does not compel the conclusion that 

Lopez will face persecution at the hands of his father if he 

his returns to Mexico. 

IV

In sum, Lopez’s larceny convictions constitute CIMTs 

that render him properly removable. His asylum application 

was untimely, and no circumstances permit excusing the 

untimeliness. Substantial evidence supports the agency’s 

denial of withholding of removal. We deny the petition for 

review. Lopez’s motion to stay removal is denied as moot.

PETITION DENIED.
28 LOPEZ V. GARLAND

SANCHEZ, Circuit Judge, concurring in part and dissenting 

in part:

Petitioner Christian Lopez, a native and citizen of 

Mexico, was convicted of four counts of petit larceny under 

section 8.10.040 of the Reno Municipal Code (RMC). The 

majority denies Lopez’s petition for review, finding that his 

petit larceny convictions categorically qualify as crimes 

involving moral turpitude (CIMT). In reaching this 

conclusion, the majority first determines that the BIA’s 

decision in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 

(BIA 2016), is entitled to deference under Skidmore v. Swift 

& Co., 323 U.S. 134 (1944), and was correctly decided. 

Next, the majority concludes that Lopez’s petit larceny 

convictions are CIMTs because the “intent to deprive” under 

RMC § 8.10.040 may be interpreted according to 

“commonly accepted usage” that implicitly incorporates the 

Model Penal Code and Nevada state law. 

I agree with the majority’s application of Loper Bright 

Enterprises v. Raimondo, 144 S. Ct. 2244, 2262 (2024), 

which requires courts to “exercise independent judgment in 

determining” the meaning of statutory terms such as crimes 

of moral turpitude, but allows us to afford Skidmore

deference to thorough and well-reasoned agency 

interpretations. However, even if Diaz-Lizarraga correctly 

determined that theft offenses involving the intent to deprive 

“either permanently or under circumstances where the 

owner’s property rights are substantially eroded” are CIMTs, 

see 26 I. & N. Dec. at 853, Lopez’s petty larceny convictions 

are not a categorical match. 

Reno defines petty larceny as taking or carrying away the 

property of another valued under $650 “with the intent to 

deprive the owner of his property therein,” RMC § 8.10.040. 
LOPEZ V. GARLAND 29

The ordinance, however, does not define what an “intent to 

deprive” means. By its plain terms, the ordinance is not 

limited to permanent deprivations of property or to 

temporary deprivations that “substantially erode” the value 

of the owner’s property. The majority errs by reaching for 

an interpretation not found in the text of the ordinance or any 

decision by a Nevada state court. In filling in this gap, the 

majority ignores that we must construe statutory ambiguities 

in favor of the person facing removal. See Moncrieffe v. 

Holder, 569 U.S. 184, 205 (2013). Because Lopez’s 

convictions are not categorically crimes involving moral 

turpitude, I would grant the petition and remand. 

I.

I begin by narrowing my disagreement with the majority. 

I agree that the BIA did not err in denying Lopez’s petition 

for asylum as untimely and that substantial evidence 

supports the agency’s denial of his claim for withholding of 

removal. I agree in the majority’s analysis of the “pardon 

waiver,” and that Lopez’s four larceny offenses do not 

constitute a single scheme under applicable precedents. 

Finally, I join in the majority’s application of Loper Bright

and its determination that Diaz-Lizarraga is entitled to 

Skidmore deference. As the majority explains, in exercising 

our independent review of statutes, we may “seek aid from 

the interpretations of those responsible for implementing 

particular statutes” under Skidmore. Loper Bright Enter.,

144 S. Ct. at 2262. However, the weight we afford the 

agency’s judgment will “depend upon the thoroughness 

evident in its consideration, the validity of its reasoning, its 

consistency with earlier and later pronouncements, and all 

those factors which give it power to persuade, if lacking 

power to control.” Id. at 2259 (quoting Skidmore, 323 U.S. 

at 140). While Diaz-Lizarraga is entitled to Skidmore 
30 LOPEZ V. GARLAND

deference, the majority errs in concluding that Lopez’s petit 

larceny convictions categorically constituted crimes of 

moral turpitude under the BIA’s revised theft definition.

II.

We employ a two-step framework for determining 

whether an offense is categorically a crime of moral 

turpitude. Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir. 

2016). First, we identify the elements of the statute. 

Coquico v. Lynch, 789 F.3d 1049, 1051 (9th Cir. 2015). 

Second, we “compare the elements of the statute of 

conviction to the generic definition of a [CIMT] and decide 

whether the conviction meets that definition.” Betansos v. 

Barr, 928 F.3d 1133, 1137 (9th Cir. 2019) (internal 

quotation marks omitted). A conviction constitutes a CIMT 

only “if the full range of conduct encompassed by the statute, 

including the least egregious conduct prosecuted under the 

statute, is a crime of moral turpitude.” Barragan-Lopez v. 

Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (internal 

quotation marks omitted). We may only find a categorical 

match when there is no “‘realistic probability’ that the statute 

of conviction would be applied to non-turpitudinous 

conduct.” Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019) 

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 

(2007)).

“Although the immigration statutes do not specifically 

define offenses constituting crimes involving moral 

turpitude, a crime involving moral turpitude is generally a 

crime that (1) is vile, base, or depraved and (2) violates 

accepted moral standards.” Hernandez-Gonzalez v. Holder, 

778 F.3d 793, 801 (9th Cir. 2015) (internal quotation marks 

omitted). “To be considered a crime of moral turpitude, a 

crime other than fraud must be more than serious; it must 
LOPEZ V. GARLAND 31

offend the most fundamental moral values of society, or as 

some would say, shock the public conscience.” Id. (cleaned 

up). We have recognized that “at some level all illegal acts 

violate societal norms and values—that is why the acts are 

illegal. However, ‘crimes involving moral turpitude’ is a 

limited category of crimes and does not extend to cover all 

conduct that violates the law.” Navarro-Lopez v. Gonzales, 

503 F.3d 1063, 1073 n.9 (9th Cir. 2007), overruled in part by 

United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th 

Cir. 2011). 

Until recently, the BIA had long determined that “a theft 

offense is not categorically a crime of moral turpitude if the 

statute of conviction is broad enough to criminalize a taking 

with intent to deprive the owner of his property only 

temporarily.” Almanza-Arenas v. Lynch, 815 F.3d 469, 476 

(9th Cir. 2016) (en banc). For years, we agreed that the 

distinction between permanent and temporary deprivations 

of property was appropriate because it reflected differing 

degrees of culpability. Id.; see Castillo-Cruz v. Holder, 581 

F.3d 1154, 1160 (9th Cir. 2009) (“A recipient who 

intends. . . to deprive its rightful owner of its possession only 

temporarily would not seem to have committed an act that 

may be termed morally turpitudinous.”). 

In 2016, in a “rather abrupt change in the law,” the BIA 

broadened the definition of theft offenses that qualify as 

CIMTs in Diaz-Lizarraga. See Garcia-Martinez v. Sessions, 

886 F.3d 1291, 1295 (9th Cir. 2018). The BIA concluded in 

its precedential decision that “a theft offense is a crime 

involving moral turpitude if it involves an intent to deprive 

the owner of his property either permanently or under 

circumstances where the owner’s property rights are 

substantially eroded.” Diaz-Lizarraga, 26 I. & N. Dec. at 

853. This revised interpretation borrows from section 
32 LOPEZ V. GARLAND

223.0(1) of the Model Penal Code (defining the term 

“deprive”) and reflects developments in the law of a majority 

of states. See id. at 851–52. Notably, however, the BIA 

observed that “[w]e continue to believe that it is appropriate 

to distinguish between substantial and de minimis takings 

when evaluating whether theft offenses involve moral 

turpitude.” Id. at 851. Thus, where a statute “does not 

require the government to prove the defendant intended to 

permanently deprive or substantially erode the owner’s 

property rights,” it is not a crime involving moral turpitude. 

See Maie v. Garland, 7 F.4th 841, 849–851 (9th Cir. 2021); 

see also Diaz-Lizarraga, 26 I. & N. Dec. at 853–54; CastilloCruz, 581 F.3d at 1161. 

RMC § 8.10.040 does not define the scope of conduct 

criminalized under the ordinance. Petty larceny is defined 

as follows: 

It is unlawful for any person to take or carry 

away the property of another with the intent 

to deprive the owner of his property therein, 

in any value less than $650.00 and for his 

conviction therefore, he shall be fined in an 

amount not more than $1,000.00 and/or be 

incarcerated not more than six months. In 

addition to any other penalty, the court shall 

order the person to pay restitution.

RMC § 8.10.040. 1 The ordinance does not provide a 

definition for the term “deprive.” See RMC § 1.01.020 

(definitions). Nor has any Nevada state court offered 

1

In 2020, after Lopez was convicted, RMC § 8.10.040 was updated to 

include property up to $1,200. See Ord. No. 6569, § 1, 8-12-20. 
LOPEZ V. GARLAND 33

guidance as to the scope of RMC § 8.10.040. The only state 

court decision to reference the ordinance involved a 

defendant convicted for shoplifting a candy bar and cough 

drops from a store. See In re Coughlin, 128 Nev. 905, 381 

P.3d 623 (2012). Thus, the RMC’s “greater breadth is 

evident from its text.” See United States v. Bautista, 989 F.3d 

698, 705 (9th Cir. 2021) (internal quotation marks omitted). 

In the absence of any limiting language, the ordinance may 

well reach temporary de minimus takings, crimes that do not 

involve morally turpitudinous conduct. See Diaz-Lizarraga, 

26 I. & N. Dec. at 851. Indeed, the government concedes 

that standing alone, the text of RMC § 8.10.040 could not 

constitute a CIMT. 

To compensate for this gap, the majority relies on the 

instruction in the RMC that “[w]ords and phrases not 

specifically defined shall be construed according to the 

context and approved usage of the language.” RMC 

§ 1.01.030(4). The majority then concludes that common 

usage of the term “deprive” permits us to consult the Model 

Penal Code and Nevada state law, both of which define 

“deprive” as “withhold[ing]” a property interest either 

permanently or for so long that a substantial portion of its 

value is lost. See Model Penal Code 223.0(1); NRS 

§ 205.0824. 

The majority’s approach is out of step with the Supreme 

Court’s admonition that we must construe ambiguities—

such as the absence of explicit statutory reference or 

consistent state court interpretation—in favor of the 

noncitizen. See Moncrieffe, 569 U.S. at 205. In Moncrieffe, 

the Supreme Court held that possession of marijuana with 

intent to distribute under state law was not a categorical 

aggravated felony barring a grant of discretionary relief from 

removal. Id. at 187. Under the categorical approach, which 
34 LOPEZ V. GARLAND

requires starting from the presumption “that the conviction 

rested upon [nothing] more than the least of th[e] acts 

criminalized,” we must “err on the side of 

underinclusiveness because ambiguity in criminal statutes 

referenced by the INA must be construed in the noncitizen’s 

favor.” Id. at 190–91, 205. The Court held that the 

petitioner’s conviction was not a CIMT because it could be 

categorized either as a felony or a misdemeanor, and 

“[a]mbiguity on this point means that the conviction did not 

‘necessarily’ involve facts that correspond to an offense 

punishable” as a felony under the Controlled Substances 

Act. Id. at 194–95. 

Here, the government concedes the text of RMC 

§ 8.10.040 is ambiguous as to the breadth of theft it 

criminalizes. However, in drawing a series of inferences to 

find a categorical match, the majority fails to construe 

ambiguities in favor of the non-citizen as required under 

Moncrieffe. Id. at 205. 

Compounding its mistake, the majority does not point to 

any evidence suggesting that the RMC intended to 

incorporate the definition of “deprive” from Nevada state 

law or the Model Penal Code. As a threshold matter, the 

RMC forecloses any legal reliance on the NRS, stating that 

state law references contained therein “are not intended to 

have any legal effect but are merely intended to assist the 

user of [the RMC].” RMC § 1.01.060. Thus, the RMC’s 

cross-reference to NRS § 204.240 cannot be construed as an 

“approved usage” to supply meaning to the RMC’s 

undefined terms. 

Indeed, the Nevada legislature contemplates that state 

and local authorities can criminalize conduct in different 

ways. See NRS §§ 266.105, 268.0035(1)(c) (vesting cities 
LOPEZ V. GARLAND 35

with “all . . . powers necessary or proper to address matters 

of local concern for the effective operation of city 

government[.]”). Reno routinely criminalizes conduct that 

state law does not. See, e.g., RMC § 8.04.020 (criminalizing 

inflating “toy balloons with hydrogen”); RMC § 8.04.030 

(criminalizing “marathon dancing or marathon walking 

contest” in the city). Reno also criminalizes other petty theft 

offenses that sweep more broadly than crimes of moral 

turpitude as defined by Diaz-Lizarraga. For example, RMC 

§§ 8.10.050(d)(3)–(4) criminalizes the unauthorized 

removal of a shopping cart with the intent to deprive the 

owner either “temporarily or permanently.” There is no 

basis to infer that RMC § 8.10.040 is limited to an intent to 

permanently deprive or substantially erode an owner’s 

property rights when other municipal petty theft offenses do 

not impose this constraint. 

Nor is the majority’s reliance on what constitutes a 

generic theft offense under the Model Penal Code 

appropriate. In Diaz-Lizarraga, the BIA found that 

shoplifting under Arizona state law was a CIMT even though 

it did not specify the duration of “intent to deprive” in part 

because Arizona had “adopted the Model Penal Code’s 

definition of the term ‘deprive’ more or less verbatim.” 26 I. 

& N. Dec. at 847–48, 851–52. Here, neither party has 

proffered any authority for the proposition that Reno follows 

the Model Penal Code. See Maie, 7 F.4th at 851. 

In short, there is a “realistic probability” that one could 

be convicted under RMC § 8.10.040 for both a categorical 

deprivation and conduct that is not morally turpitudinous. 

See Moncrieffe, 569 U.S. at 191; see also Rivera, 816 F.3d 

at 1077. Without evidence to the contrary, we may not fill 

in the gaps with our own inferences about what conduct is 

criminalized under RMC § 8.10.040. See Leocal v. Ashcroft, 
36 LOPEZ V. GARLAND

543 U.S. 1, 11 n.8 (2004) (“Even if [18 U.S.C. § 16, defining 

a crime of violence under the INA] lacked clarity on this 

point, we would be constrained to interpret any ambiguity in 

the statute in petitioner’s favor.”). Because the government 

has not demonstrated by statutory text or state court 

precedent that RMC § 8.10.040 categorically describes a 

crime of moral turpitude, I would grant Lopez’s petition.