United States Court of Appeals

For the First Circuit

No. 12-2401

COURTNEY WAYNE LECKY,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW FROM AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Selya and Thompson,

Circuit Judges.

Glen L. Formica, with whom Formica Williams, P.C. was on

brief, for petitioner.

Matthew B. George, Trial Attorney, Office of Immigration

Litigation, with whom Stuart F. Delery, Principal Deputy, Assistant

Attorney General and Lyle D. Jentzer, Senior Litigation Counsel,

Office of Immigration Litigation were on brief, for respondent.

July 9, 2013
HOWARD, Circuit Judge. Courtney Lecky, a citizen and

native of Jamaica, petitions this court for review of his removal

order. The Board of Immigration Appeals ("BIA") affirmed Lecky's

removability for having committed an aggravated felony offense. We

deny the petition.

I.

Lecky entered the United States in 1996 as a lawful

permanent resident. In June 2006, the state of Connecticut charged

Lecky with committing robbery and criminal assault for taking

property from an individual outside of a Dunkin' Donuts in

Stamford, Connecticut. The state later changed the charged offense

to second-degree larceny, see Conn. Gen. Stat. § 53a-123(a)(3), to

which Lecky pleaded guilty under the Alford doctrine in November

2006.1 Although Lecky was seventeen at the time, he was convicted

as an adult and sentenced to two years and a day of incarceration

and five years of special parole.

In February 2012, the Department of Homeland Security

("DHS") initiated removal proceedings against Lecky, alleging that

Lecky was removable because he had been convicted of an aggravated

felony, specifically a theft offense. In May 2012, Lecky appeared

before an immigration judge ("IJ") and denied the charge of

removability. The IJ sustained the charge.

1

 This doctrine allows a defendant to plead guilty without

admitting the truth of any or all of the facts essential to the

conviction. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).

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Lecky filed an application for cancellation of removal

under 8 U.S.C. § 1229b, arguing that his conviction was not an

aggravated felony that rendered him ineligible for cancellation of

removal. Meanwhile, DHS added a second charge of removability

against Lecky: conviction of a "crime of violence" aggravated

felony based on the same Connecticut second-degree larceny

conviction. At a July 2012 hearing, the IJ sustained the second

charge, pretermitted Lecky's application for cancellation, and

ordered Lecky removed to Jamaica.

Lecky appealed this decision to the BIA, again claiming

that his conviction for second-degree larceny under Connecticut

state law was not an aggravated felony as defined by federal

statutes. See 8 U.S.C. § 1101(a)(43)(G) (defining "theft

offense"); 18 U.S.C. § 16 (defining "crime of violence"). He also

argued that he should not have been eligible for removal because he

was under eighteen at the time of conviction, and furthermore that

an Alford plea cannot subject an alien to removal.

The BIA rejected each of Lecky's arguments. First,

relying on Second Circuit precedent, it concluded that Connecticut

larceny in the second degree is a theft offense aggravated felony. 

See Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (holding that

third-degree larceny under Connecticut law qualifies as a theft

offense aggravated felony); Almeida v. Holder, 588 F.3d 778 (2d

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Cir. 2009) (reaching the same conclusion for second-degree larceny

under Connecticut law).

As to Lecky's conviction for a crime of violence, the BIA

looked to see whether the offense, "by its nature, involves a

substantial risk that physical force against the person or property

of another may be used in the course of committing the offense." 

18 U.S.C. § 16(b). The BIA noted that Lecky was convicted under

paragraph 53a-123(a)(3) of the state statute, which specifically

applies when property "is taken from the person of another." It

then cited Connecticut case law stating that "a risk of injury

invariably accompanies" this form of larceny, and that it poses "a

serious potential source of harm." State v. Wright, 716 A.2d 870,

878 (Conn. 1998). Based on that language, the BIA held that

Lecky's conviction under paragraph 53a-123(a)(3) qualified as a

crime of violence. It buttressed this reasoning with First Circuit

opinions that reached similar conclusions for analogous crimes.

See, e.g., United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.

1993) (holding that larceny from the person, under Massachusetts

law, qualifies as a "crime of violence" under the career offender

guideline).

The BIA also rejected Lecky's argument that he should

have been treated as a juvenile offender for immigration purposes,

citing First Circuit precedent as well as its own case law. See

Vieira García v. I.N.S., 239 F.3d 409, 413 (1st Cir. 2001)

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(rejecting the argument that federal law should determine whether

a minor can be convicted as an adult); Matter of Devison-Charles,

22 I. & N. Dec. 1362, 1372 (BIA 2001) (similar). Finally, it

concluded that an Alford plea is a guilty plea, and thus deserves

no special treatment when determining whether an alien has been

convicted of an aggravated felony. Lecky petitioned this court for

review.

II.

In his petition, Lecky challenges two of the BIA's

conclusions: 1) that larceny in the second degree under

Connecticut law qualifies as an aggravated felony; and 2) that

Lecky was properly and validly convicted as an adult for

immigration purposes. These two determinations are both purely

legal, and thus we review them de novo, albeit "with deference

accorded to [the BIA's] reasonable interpretation of statutes and

regulations falling within its bailiwick." Segran v. Mukasey, 511

F.3d 1, 5 (1st Cir. 2007). We afford no deference, however, to the

BIA's interpretation of Connecticut state law, as the BIA "is not

charged with the administration of these laws." Ming Lam Sui v.

I.N.S., 250 F.3d 105, 112 (2d Cir. 2001).

1. Aggravated Felony

The BIA affirmed two distinct grounds for Lecky's

removability, concluding that Connecticut second-degree larceny

qualifies as both a theft offense aggravated felony and a crime of

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violence aggravated felony. Since either determination was

sufficient to uphold Lecky's order of removal, we limit our

analysis to the BIA's conclusion that the statute in question meets

the definition of a theft offense without reaching the question of

whether it also qualifies as a crime of violence.

Federal law authorizes the deportation of "[a]ny alien

who is convicted of an aggravated felony at any time after

admission" into the United States. 8 U.S.C. § 1227(a)(2)(A)(iii).

The list of qualifying aggravated felonies, see id. § 1101(a)(43),

does not precisely correspond to state criminal codes. Therefore,

the BIA and courts of appeal must often ascertain whether a

particular state law fits within the enumerated aggravated

felonies. To carry out this task, we have adopted, with slight

modification, the two-step test that courts use to determine

whether a state conviction qualifies as a "violent felony" under

the Armed Career Criminal Act, 18 U.S.C. § 924(e), and similar

sentencing statutes. See Conteh v. Gonzales, 461 F.3d 45, 54-56

(1st Cir. 2006); see also Taylor v. United States, 495 U.S. 575,

602 (1990) (establishing a "categorical approach" for determining

if state convictions qualify as violent felonies).

Under this "modified categorical approach," we first look

to see whether "the statute underlying the prior conviction

necessarily involves every element of [an aggravated felony]." 

Conteh, 461 F.3d at 53. If so, the mere fact of conviction

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suffices to prove the conviction of an aggravated felony offense. 

However, where the underlying statute covers both conduct that fits

within the aggravated felony scheme as well as conduct falling

outside of that scheme, "the government bears the burden of

proving, by clear and convincing evidence derived solely from the

record of the prior proceeding, that (i) the alien was convicted of

a crime and (ii) that crime involved every element of one of the

[aggravated felony] offenses." Id. at 55. When a statute includes

non-aggravated felony conduct, we refer to that statute as

"divisible."

One of the enumerated aggravated felonies for which an

alien may be deported is "a theft offense (including receipt of

stolen property) or burglary offense for which the term of

imprisonment [is] at least one year."2 8 U.S.C. § 1101(a)(43)(G). 

The BIA has concluded that a "theft offense" occurs "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." Matter of V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA

2000). We accept this definition, as it is neither "arbitrary,

capricious, [n]or manifestly contrary to the statute." Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844

(1984); see Vásquez v. Holder, 635 F.3d 563, 567-68 (1st Cir. 2011)

2

 There is no dispute that Connecticut second-degree larceny

carries with it a sentence of at least one year. See Conn. Gen.

Stat. § 53a-35a(7).

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(applying Chevron deference to the BIA's interpretation of its own

statutes); see also Almeida, 588 F.3d at 785 (affirming the BIA's

interpretation of "theft offense"); Burke v. Mukasey, 509 F.3d 695,

697 (5th Cir. 2007) (per curiam) (adopting a nearly identical

definition of the term "theft offense").

Lecky argues that Connecticut second-degree larceny is a

divisible statute, since it includes certain actions that do not

fit within the BIA's definition of theft offense. The relevant

paragraph under which Lecky was convicted states that "[a] person

is guilty of larceny in the second degree when he commits larceny,

as defined in section 53a-119, and . . . the property, regardless

of its nature or value, is taken from the person of another." 

Conn. Gen. Stat. § 53a-123(a)(3). Under section 53a-119, "[a]

person commits larceny when, with intent to deprive another of

property or to appropriate the same to himself or a third person,

he wrongfully takes, obtains or withholds such property from an

owner." Id. § 53a-119. Lecky does not argue that this language,

read on its own, encompasses non-theft offenses. Instead, Lecky

focuses all of his attention on a non-exhaustive list of example

offenses listed in section 53a-119. According to Lecky, several of

the example offenses in that list -- including "mutilat[ing] a book

or other archival library material," id. § 53a-119(12)(B),

"obtain[ing] . . . wireless radio communications, id. § 53a119(15), and "obtain[ing] property from [another] person . . . by

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knowingly installing or reinstalling any object in lieu of an air

bag," id. § 53a-119(16) -- do not constitute theft offenses as

defined by the BIA, and therefore the BIA erred in determining that

Connecticut second-degree larceny is a categorical theft offense.

There are two problems with Lecky's argument. First, we

are not convinced that this list is relevant to determining the

elements of Lecky's offense. While there is no doubt that all of

these example offenses constitute some form of larceny under

Connecticut law (the statute plainly says so), Lecky was not

charged with generic larceny, but rather with taking property from

the person of another under paragraph 53a-123(a)(3). It is

difficult to fathom how one could commit air bag fraud or wireless

radio theft from the person of another, yet Lecky is asking us to

assume that impossibility when analyzing the elements of his

charged crime. Since the list of example offenses clearly does not

apply wholesale to paragraph 53a-123(a)(3), the list is of limited

value in determining what conduct falls under that provision.

Moreover, even if these example offenses are relevant to

defining paragraph 53a-123(a)(3), they all fit squarely within the

BIA's formulation of "theft offense." The BIA has made it clear

that a theft offense requires the intent to deprive an owner of

property rights, but such deprivation need not be permanent nor

total. See Matter of V-Z-S-, 22 I. & N. Dec. at 1345-46. All of

the examples found in section 53a-119 involve both a deprivation of

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ownership rights and an intent to effectuate that deprivation. See

Abimbola, 378 F.3d at 180 ("The most reasonable construction of

section 53a-119 includes reading the intent to deprive requirement

into all of the subsections."). That is enough to satisfy the

BIA's definition of a theft offense.

Nor do we agree with Lecky that the example offenses in

section 53a-119 include "de minimis deprivation[s] of ownership

interests." Matter of V-Z-S-, 22 I. & N. Dec. at 1346 ("Not all

takings of property, however, will [qualify as theft offenses]

because some takings entail a de minimis deprivation of ownership

interests."). They all appear to touch on meaningful ownership

rights, and Lecky has provided no authority to the contrary.

We need not elaborate this point further. The Second

Circuit, which has long experience and profound expertise in

Connecticut law, in two well-reasoned opinions has held that

Connecticut's second-degree larceny and third-degree larceny

offenses both qualify as theft offenses under 8 U.S.C. §

1101(a)(43)(G). See Almeida, 588 F.3d at 788; Abimbola, 378 F.3d

at 180. Like the BIA, we consider these cases both on point and

persuasive. The Second Circuit has considered variations on

Lecky's argument, and rejected them, and he has not convinced us to

part ways with those opinions. We conclude that Connecticut

General Statute § 53a-123(a)(3) is a categorical theft offense, and

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therefore that Lecky's conviction alone suffices to establish a

conviction of a theft offense aggravated felony.

2. Lecky's Status at Conviction

Lecky's second argument -- that his conviction as an

adult was invalid because he was only seventeen at the time of his

plea -- is entirely foreclosed by our decision in Vieira García,

239 F.3d at 409. In that case, we decided that "[n]either we nor

the BIA have jurisdiction to determine how a state court should

adjudicate its defendants. Once adjudicated by the state court,

either as a juvenile or an adult, we are bound by that

determination." Id. at 413; see also 28 U.S.C. § 1738. We are

similarly bound by our prior precedent, making Lecky's argument a

non-starter. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25,

33 (1st Cir. 2010) ("[N]ewly constituted panels in a multi-panel

circuit court are bound by prior panel decisions that are closely

on point.").

III.

For the foregoing reasons, we deny Lecky's petition.

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