United States Court of Appeals 

For the First Circuit 

No. 15-2453 

EVANDRO DE LIMA, 

 Petitioner, 

v. 

JEFFERSON B. SESSIONS, III, 

Attorney General of the United States,*

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Kayatta, Selya, and Lipez, 

Circuit Judges. 

Patrick Long for petitioner. 

Brianne Whelan Cohen, Office of Immigration Litigation, Civil 

Division, U.S. Department of Justice, with whom Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General, John S. Hogan, 

Assistant Director, and David H. Wetmore, Trial Attorney, were on 

brief, for respondent. 

August 16, 2017 

 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Jefferson B. Sessions, III has been substituted 

for former Attorney General Loretta E. Lynch as the respondent. 
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KAYATTA, Circuit Judge. Under the Immigration and 

Nationality Act ("INA"), "[a]ny alien who is convicted of an 

aggravated felony at any time after admission" is eligible for 

removal. 8 U.S.C. § 1227(a)(2)(A)(iii). One type of aggravated 

felony under the INA is "a theft offense (including receipt of 

stolen property) . . . for which the term of imprisonment [is] at 

least one year." Id. § 1101(a)(43)(G). In finding petitioner 

Evandro De Lima eligible for removal, the Board of Immigration 

Appeals ("BIA") concluded that third-degree larceny under 

Connecticut law, Conn. Gen. Stat. § 53a-124, is one such offense. 

For the following reasons, we uphold that finding. 

I.

De Lima is a native and citizen of Brazil. He became a 

lawful permanent resident of the United States in 2011, three years 

before he was convicted of third-degree larceny under 

section 53a-124 of the Connecticut General Statutes.1 In March 

2015, removal proceedings commenced against De Lima on the basis 

that his conviction was for a "theft offense" within the meaning 

of 8 U.S.C. § 1101(a)(43)(G) and was therefore an "aggravated 

felony" that rendered him eligible for removal. Id. 

§ 1227(a)(2)(A)(iii).

 1 De Lima was also convicted of fourth-degree larceny under 

Connecticut law, Conn. Gen. Stat. § 53a-125, for a separate 

larceny. That conviction, however, was subsequently vacated and 

played no part in De Lima's removal proceedings.
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Section 53a-119 of the Connecticut General Statutes 

provides that 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." Conn. Gen. Stat. § 53a-119. Larceny 

"includes, but is not limited to," things like "embezzlement," id. 

§ 53a-119(1); "[o]btaining property by false pretenses," id. 

§ 53a-119(2); "[o]btaining property by false promise," id. 

§ 53a-119(3); "defrauding a public community," id. § 53a-119(6); 

"theft of services," id. § 53a-119(7); "library theft," including 

"mutilat[ing] a book or other archival library materials . . . so 

as to render it unusable or reduce its value," id. § 53a-119(12); 

"theft of utility service," including "wireless radio 

communications," id. § 53a-119(15); and "air bag fraud," whereby 

a person fraudulently "obtains property from such other person or 

a third person by knowingly selling, installing or reinstalling 

any object, including any counterfeit air bag or nonfunctional air 

bag . . . in lieu of an air bag that was designed in accordance 

with federal safety requirements," id. § 53a-119(16). 

Larceny comes in several degrees under Connecticut law. 

To establish the degree relevant here (third-degree larceny), the 

state must prove one of the following additional factors: (a) the 

offender stole a motor vehicle worth ten thousand dollars or less; 

(b) "the value of the property or service exceeds two thousand 
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dollars"; (c) "the property consists of a public record, writing 

or instrument kept, held or deposited according to law with or in 

the keeping of any public office or public servant"; or (d) "the 

property consists of a sample, culture, microorganism, specimen, 

record, recording, document, drawing or any other article, 

material, device or substance which constitutes, represents, 

evidences, reflects or records a secret scientific or technical 

process, invention or formula or any phase or part thereof," as 

"secret" is defined therein. Id. § 53a-124. 

In an oral decision on April 10, 2015, an immigration 

judge found De Lima removable and ordered him removed. De Lima 

timely appealed to the BIA. Before the Board, he argued that 

section 53a-124 is broader than the definition of a "theft offense" 

under the INA, and therefore cannot categorically count as an 

aggravated felony. Specifically, he claimed that the federal 

definition of a generic "theft offense" requires permanent intent 

to deprive another of property, and the Connecticut statute does 

not, both because it criminalizes theft of property without the 

intent to permanently deprive the owner of the property, and 

because it criminalizes theft of services. Therefore, reasoned De 

Lima, it is possible for a person to be convicted under 

section 53a-124 for something that would not be considered a "theft 

offense" under the federal definition. 
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The BIA rejected De Lima's claims and dismissed his 

appeal. De Lima then timely petitioned our court for review. We 

review purely legal challenges like those raised here de novo, 

though we accord deference 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). 

II. 

Because the INA's list of aggravated felonies, see 8 

U.S.C. § 1101(a)(43), does not perfectly correspond to state 

criminal codes, "the BIA and courts of appeal must often ascertain 

whether a particular state law fits within the enumerated 

aggravated felonies." Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 

2013). To do so, we apply the so-called "categorical approach," 

which "looks to the statutory definition of the offense of 

conviction, not to the particulars of the alien's behavior." 

Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015); see Moncrieffe v. 

Holder, 133 S. Ct. 1678, 1684 (2013). In substance, we identify 

the elements of the state offense for which the person was 

previously convicted; we identify, to a reasonable possibility, 

the minimum conduct that the state would have deemed to have 

satisfied those elements; and then we ask whether that conduct 

would also satisfy one of the INA's listed "generic" aggravated 

felonies. Moncrieffe, 133 S. Ct. at 1684-85; see Esquivel-Quintana 

v. Sessions, No. 16-54, 2017 WL 2322840, at *4 (U.S. May 30, 2017). 
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Consistent with that approach, De Lima advances three 

arguments for finding that his Connecticut conviction is not a 

conviction for a "theft offense" because the range of conduct 

sufficient to sustain a conviction for third-degree larceny under 

Connecticut law is broader than that which constitutes a "theft 

offense" under the INA. We address each argument in turn. 

A. 

De Lima argues, first, that section 53a-124 is overbroad 

because it imposes liability for takings of property even by one 

who does not intend to deprive another permanently of the property, 

as evidenced by the statute's imposition of criminal liability for 

mutilating a library book, replacing a car's airbags with something 

else, or intercepting wireless radio communications. 

This argument runs into our holding in Lecky. There, 

the petitioner challenged whether his conviction under 

Connecticut's second-degree larceny statute, Conn. Gen. Stat. 

§ 53a-123, could be cited as a conviction for a "theft offense" 

subjecting him to removal under the INA. Lecky, 723 F.3d at 4. 

Like its third-degree larceny statute, Connecticut's second-degree 

larceny statute incorporates the definition of larceny contained 

in section 53a-119. See Conn. Gen. Stat. § 53a-123. Like De Lima, 

the petitioner in Lecky argued that the generic "theft offense" 

under the INA does not reach temporary deprivations of property, 

yet the Connecticut statute does, as evidenced by its inclusion of 
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library theft, airbag fraud, and obtaining wireless radio 

communications. Lecky, 723 F.3d at 5. We observed that where a 

person has been convicted for theft of property, "[t]he 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." Id. at 6 (citing Matter of V-Z-S-, 22 I. & 

N. Dec. 1338, 1345–46 (B.I.A. 2000)). Finding the BIA's 

interpretation of the INA reasonable, and noting that the Second 

Circuit had done so as well in its decisions in Abimbola v. 

Ashcroft, 378 F.3d 173 (2d Cir. 2004), and Almeida v. Holder, 588 

F.3d 778 (2d Cir. 2009), we deferred to the BIA and rejected the 

petitioner's argument. See Lecky, 723 F.3d at 5–6 (citing Chevron 

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 

(1984)). 

De Lima urges us to find Lecky no longer controlling in 

light of the Supreme Court's recent decisions in Moncrieffe and 

Mellouli. See Holder v. Sessions, 848 F.3d 500, 502 (1st Cir. 

2017) (citing, inter alia, United States v. Carter, 752 F.3d 8, 18 

n.11 (1st Cir. 2014)) (recounting the exception to stare decisis 

whereby intervening pronouncements from the Supreme Court 

undermine an existing panel decision). He argues that these recent 

cases indicate that the court in Lecky erred by deferring to the 

BIA's interpretation of "theft offense" under the INA. Instead, 

argues De Lima, Moncrieffe and Mellouli show either that the BIA's 
- 8 - 

decision in V-Z-S- deserves less deference, or that the BIA 

unreasonably interprets the INA anytime it finds that a generic 

offense is broader than the common-law version of that offense. 

De Lima's argument concerning Lecky and the degree of 

deference we accord the BIA takes two forms. The first, most 

clearly articulated in De Lima's opening brief, is that post-Lecky 

Supreme Court decisions suggest that the BIA should default to the 

common law unless Congress expressly indicates otherwise. But in 

Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court 

expressly rejected the argument "that Congress meant to include 

only a special subclass of [generic offenses]" like "those that 

would have been [the generic offenses] at common law." Id. at 

598. There is nothing in Moncrieffe, Mellouli, or any other 

intervening Supreme Court decision that suggests that Taylor is no 

longer good law or does not apply in this context; in fact, 

Moncrieffe itself relies on Taylor in explicating the categorical 

approach that applies to cases like this one, and Mellouli, in 

turn, relies on Moncrieffe to do the same. See Mellouli, 135 S. 

Ct. at 1986 (citing Moncrieffe, 133 S. Ct. at 1684–85); Moncrieffe, 

133 S. Ct. at 1684–85 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 

183, 186 (2007) (citing Taylor, 495 U.S. at 599–600)). 

The second form of this argument, more fully fleshed out 

in De Lima's reply brief and at oral argument, is that Lecky should 

not control the outcome of this case because Moncrieffe and 
- 9 - 

Mellouli require that the BIA construe narrowly the ambiguous 

generic offenses in the INA. In substance, this is an argument 

that these two cases demonstrate that the rule of lenity must 

always trump deference in defining precisely what a "theft offense" 

is under the INA. For three reasons, we disagree. 

First, neither Moncrieffe nor Mellouli addresses the 

subject of the interplay between deference and lenity in construing 

a provision of the INA. The Court in Moncrieffe confronted the 

BIA's interpretation of a state statute, not the INA itself. 

Chevron was therefore not implicated, so no deference was afforded 

to the BIA's interpretation when the Court stated that "ambiguity 

in criminal statutes referenced by the INA must be construed in 

the noncitizen's favor." Moncrieffe, 133 S. Ct. at 1693 (citing 

Carachuri-Rosendo v. Holder, 560 U.S. 563, 581 (2010), and Leocal 

v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)). Similarly, lenity did 

not replace Chevron deference in Mellouli. Rather, deference 

simply proved to be unwarranted in Mellouli because the BIA's 

interpretation of the interplay between the INA, the Comprehensive 

Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 

§§ 801–971, and Kansas state law did not make any sense. See 

Mellouli, 135 S. Ct. at 1989. 

Second, to the extent that De Lima's argument is that 

lenity (or some form of it) plays a role in construing provisions 

of the INA that trigger deportation or removal, that role is well 
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established and long predates Lecky. See, e.g., Kawashima v. 

Holder, 565 U.S. 478, 489 (2012); Leocal, 543 U.S. at 11 n.8; INS 

v. St. Cyr, 533 U.S. 289, 320 (2001); Fong Haw Tan v. Phelan, 333 

U.S. 6, 10 (1948) ("We resolve the doubts in favor of [the alien] 

because deportation is a drastic measure . . . ."). Nothing has 

changed in that regard post-Lecky, and neither Mellouli nor 

Moncrieffe suggests otherwise. 

Third, under our case law, even when lenity is 

potentially applicable, it plays no role "unless there is a 

grievous ambiguity or uncertainty in the language and structure of 

[a statute], such that even after a court has seize[d] every thing 

from which aid can be derived, it is still left with an ambiguous 

statute." Soto-Hernandez v. Holder, 729 F.3d 1, 6 (1st Cir. 2013) 

(quoting Chapman v. United States, 500 U.S. 453, 463 (1991)). The 

rule therefore "'cannot apply to contravene the BIA's reasonable 

interpretation' of an immigration statute where the agency makes 

use of 'ordinary principles of statutory construction.'" Garcia 

v. Sessions, 856 F.3d 27, 41 (1st Cir. 2017) (quoting SotoHernandez, 729 F.3d at 6). And this is precisely what the BIA did 

in V-Z-S- when it decided that "a taking of property constitutes 

a 'theft' [under the INA] 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." V-Z-S-, 22 I. 

& N. Dec. at 1346. 
- 11 - 

Lecky thus remains good law in this circuit. As such, 

it forecloses De Lima's claim that "theft offense" must be 

construed narrowly to exclude theft committed without intent to 

permanently deprive. See Lecky, 723 F.3d at 6 (citing V-Z-S-, 22 

I. & N. Dec. at 1345–46). 

B. 

De Lima next argues that Connecticut's inclusion of 

theft of services as larceny renders the crime broader than the 

generic "theft offense" definition in the INA. The government 

argues that Lecky also disposes of this argument. We are not so 

sure. On the one hand, our decision in Lecky expressly approved 

of the reasoning and holding in Abimbola, in which the Second 

Circuit found that Connecticut's third-degree larceny offense is 

categorically a "theft offense" under the INA despite its 

imposition of criminal liability for theft of services. Lecky, 

723 F.3d at 6; Abimbola, 378 F.3d at 178–80. In Lecky, we found 

that Abimbola and Almeida, 588 F.3d at 789 (holding that seconddegree larceny under Connecticut law is categorically a "theft 

offense" aggravated felony under the INA), were "well-reasoned 

opinions" that were "both on point and persuasive," and we stated 

that the petitioner did not "convince[] us to part ways with those 

opinions." Lecky, 723 F.3d at 6. 

On the other hand, as mentioned earlier, Lecky involved 

a challenge to a conviction under a different statute than the 
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statute under which De Lima was convicted. And while that 

difference was immaterial to our disposition of De Lima's first 

argument, it might be material to our consideration of his second. 

The petitioner in Lecky was convicted under a portion of 

Connecticut's second-degree larceny statute that imposes liability 

for larceny where "the property, regardless of its nature or value, 

is taken from the person of another." Conn. Gen. Stat. 

§ 53a-123(a)(3). We noted that because the relevant portion of 

the statute expressly provided for the taking of property "from 

the person of another," some of the examples provided in 

section 53a-119 could not possibly constitute second-degree 

larceny under section 53a-123(a)(3). The definition of thirddegree larceny under section 53a-124 lacks the precise language 

upon which we relied in Lecky and contains a subsection that 

expressly provides for liability for theft of a "service" whose 

value "exceeds two thousand dollars," id. § 53a-124(a)(2).2

In the end, we need not concern ourselves with either 

the scope of Lecky's preclusive effect or with precisely defining 

the metes and bounds of our holding in that case, because we are 

unpersuaded by De Lima's argument that section 53a-124's 

 2 The government has not provided Shepard documents that would 

shed light on whether De Lima was convicted under a particular 

subsection of section 53a-124. See Conteh v. Gonzales, 461 F.3d 

45, 59 (1st Cir. 2006) (citing Shepard v. United States, 544 U.S. 

13, 20–23 (2005)). 
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imposition of criminal liability for theft of services renders the 

statute too broad to categorically constitute a "theft offense" 

aggravated felony under the INA. It is true, as De Lima says, 

that the traditional common-law definition of theft was limited to 

property, and that services were not considered property in many 

common-law jurisdictions. But this is the type of argument 

rejected in Taylor, where the Supreme Court declined to give the 

generic term "burglary" its common-law meaning because "that 

meaning [wa]s obsolete or inconsistent with the statute's 

purpose." 495 U.S. at 594. The Court determined that "burglary" 

under the Career Criminals Amendment Act of 1986, 18 U.S.C. 

§ 924(e), was not confined to the term's traditional common-law 

meaning, but rather included the broader array of conduct captured 

within the definition in the Model Penal Code and prohibited by 

burglary statutes adopted by numerous states at the time the 

federal statute was passed. Taylor, 495 U.S. at 597-98, 598 n.8. 

So, too, did Congress's use of the term "theft offense" 

rather than merely the term "theft" imply an intent to reach more 

broadly than the singular common-law notion of theft. See Ilchuk 

v. Att'y Gen. of the U.S., 434 F.3d 618, 622 (3d Cir. 2006) ("[I]t 

was Congress's intent for a 'theft offense' to be more broadly 

defined than the common-law definition of larceny, and . . . by 

using that phrase, rather than 'theft,' Congress signaled that it 

was not presenting an exhaustive list of offenses, but rather, a 
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definition with broad meaning."). At the time of the enactment of 

§ 1101(a)(43)(G), the Model Penal Code had for several years 

provided for criminal liability for theft of services, and over 

half the states had criminalized theft of services under their 

respective criminal codes. See United States v. Corona-Sanchez, 

291 F.3d 1201, 1216 n.6 (9th Cir. 2002) (en banc) (Rymer, J., 

dissenting in part) (citing American Law Institute, Modern Penal 

Code and Commentaries II § 223.7, cmt. 1 (1980)), abrogated on 

other grounds by statute as explained in United States v. GomezMendez, 486 F.3d 599, 604–05 (9th Cir. 2007). Taylor teaches that 

in using generic terms, like "burglary" in 18 U.S.C. § 924(e), 

Congress intended to adopt "the generic sense in which the term is 

now used in the criminal codes of most [s]tates." 495 U.S. at 

598. It fairly follows that Congress "intended to incorporate a 

modern understanding of theft," Abimbola, 378 F.3d at 178–79, in 

which case it likely intended theft of services to fall within the 

ambit of the term "a theft offense." 

In concluding otherwise, the Ninth Circuit en banc court 

observed that services are not property. See Corona-Sanchez, 291 

F.3d at 1208; accord United States v. Juarez-Gonzalez, 451 F. App'x 

387, 392 (5th Cir. 2011) (unpublished opinion). But why this 

should make any difference is unclear. The Ninth Circuit observed 

that theft of services was "generally [not] included within the 

scope of ordinary theft statutes because one's labor is not one's 
- 15 - 

'property.'" Corona-Sanchez, 291 F.3d at 1208. But the more 

relevant point is that the thieving of services was already a theft 

offense in most states at the time Congress enacted the relevant 

provision of the INA. 

The Ninth Circuit also observed that "the Supreme Court 

has carefully maintained the distinction between 'property' and 

other rights when construing criminal statutes." Id. (citing 

McNally v. United States, 483 U.S. 350, 356 (1987), superseded on 

other grounds by statute as recognized in Cleveland v. United 

States, 531 U.S. 12, 19-20 (2000)). Be that as it may, the word 

"property" does not appear in the INA's provision denominating 

"theft offense[s]" as aggravated felonies. See 8 U.S.C. 

§ 1101(a)(43)(G). And the fact that certain states criminalized 

as larceny only the theft of property simply does not mean that 

the laws of many other states criminalizing the theft of services 

are not also theft offenses. Otherwise, the Ninth Circuit offered 

no reason for its holding besides a desire to maintain a national 

uniformity that does not exist. 

We have considered, too, the language of V-Z-S- in which 

the BIA itself described a taking of property as a theft.3 De Lima 

would read this statement as saying that only a taking of property 

 3 "[A] taking of property constitutes a 'theft' 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." V-Z-S-, 22 I. & N. Dec. at 1346. 
- 16 - 

can constitute a theft. We see no reason to read the BIA's 

statement in such a restrictive manner. The question of services 

versus property was not before the BIA in V-Z-S-. Rather, at issue 

was the question whether an alien could be said to have been 

convicted of a "theft offense" by sustaining a conviction under a 

state law that criminalized the taking of property even absent 

intent to deprive permanently, traditionally an element of commonlaw theft. The BIA considered and decided which thefts of property 

constitute a "theft offense"; it did not, in so doing, construe 

"theft offense" as including only tangible-property theft crimes. 

We therefore hold that Connecticut's third-degree 

larceny statute's imposition of criminal liability for theft of 

services does not broaden the offense beyond the limits of a "theft 

offense" under the INA. See Abimbola, 378 F.3d at 178; cf. Ilchuk, 

434 F.3d at 622–23 (finding that Pennsylvania's theft-of-services 

statute is categorically a "theft offense" aggravated felony under 

the INA). 

C. 

De Lima argues, finally, that his conviction cannot 

categorically qualify as a conviction for a "theft offense" under 

8 U.S.C. § 1101(a)(43)(G) because Connecticut's third-degree 

larceny statute criminalizes theft by fraud, which the BIA itself 

does not treat as a "theft offense." See Matter of Garcia-Madruga, 

24 I. & N. Dec. 436, 440–41 (B.I.A. 2008) (finding fraud crimes do 
- 17 - 

not pass the categorical test because theft requires lack of 

consent, while fraud necessarily involves the acquisition of 

property by consent involuntarily given). De Lima, though, did 

not advance this argument before the BIA. The law is clear that 

"theories not advanced before the BIA may not be surfaced for the 

first time in a petition for judicial review of the BIA's final 

order." Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015) 

(quoting Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)); 

see Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013); 

Sousa v. INS, 226 F.3d 28, 31–32 (1st Cir. 2000). This limitation 

on the scope of our review is jurisdictional. Mazariegos-Paiz, 

734 F.3d at 62–63. 

At oral argument, counsel suggested that we could 

nevertheless consider De Lima's argument that a state statute that 

prohibits theft by fraud is not categorically a theft offense under 

the INA, because the argument is simply a different approach to 

the overbreadth challenge that he mounted both before the BIA and 

in his petition for review. This suggestion is untenable in light 

of our holding in Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992). 

There, an immigration judge denied a petitioner's application for 

asylum because the petitioner did not have a well-founded fear of 

persecution. Id. at 757. The petitioner appealed to the BIA 

asserting that the immigration judge was wrong because the 

petitioner had demonstrated his fear of, and the likelihood he 
- 18 - 

would suffer, persecution on account of his political opinions. 

Id. at 760. When the BIA affirmed, the petitioner sought relief 

in our court, asserting that "the BIA did not consider his claim 

of persecution on the basis of membership in a particular social 

group." Id. We noted that it indeed did not, but that its failure 

was "attributable to the fact that petitioner failed to raise this 

claim before the BIA," and we accordingly found that we lacked 

jurisdiction to consider his challenge. Id. at 760–61. 

Here too, we are confronted with a challenge that was 

not presented to the BIA: De Lima contended before the BIA only 

that the criminal activities proscribed in subsections 7, 12, 15, 

and 16 of section 53a-119 fell outside the scope of the generic 

federal definition of a theft offense based on the arguments we 

have addressed above. Now he wants to argue that one or more 

different subsections of the Connecticut statute fail to qualify 

as a theft offense for a different reason. 

Telling an agency that subsection A does not qualify as 

a theft offense for reason X simply does not raise, much less 

exhaust, the argument that subsection B does not qualify as a theft 

offense for reason Y. True, both arguments feed into the common 

ultimate conclusion that a conviction under the broad Connecticut 

statute is not categorically a theft offense. But if we were to 

deem the assertion of this ultimate conclusion to be sufficient to 

exhaust all independent routes to reaching such a conclusion, we 
- 19 - 

would present both the BIA and the opposing party with an unfair 

and daunting task. Quite literally, each would have to generate, 

sua sponte, a list of all of the possible reasons why third degree 

larceny might not be a theft offense, and then perform a 

categorical analysis of all eighteen subsections of the 

Connecticut statute, mapping each reason against each subsection. 

Even a single such categorical analysis is an arduous task, 

requiring a close analysis of the specific statutory language put 

at issue, see Swaby v. Yates, 847 F.3d 62, 65–66 (1st Cir. 2017); 

of the case law interpreting that language, see United States v. 

Fish, 758 F.3d 1, 4–5 (1st Cir. 2014); and of the extent to which 

the elements made relevant by that language match or fall within 

what the BIA has reasonably interpreted the INA's "theft offense" 

provision to include, see Descamps v. United States, 133 S. Ct. 

2276, 2283 (2013) (citing Taylor, 495 U.S. at 600). The ensuing 

categorical evaluation is often difficult and time consuming. See 

United States v. Tavares, 843 F.3d 1, 19 (1st Cir. 2016) ("The 

result is a Rube Goldberg jurisprudence of abstractions piled on 

top of one another in a manner that renders doubtful anyone's 

confidence in predicting what will pop out at the end."). In this 

very case, for example, considering just the property and services 

provisions of selected subsections within section 53a-119 occupies 

over two-thousand words of analysis, even with the benefit of 

Lecky's spade work addressing one aspect of that consideration. 
- 20 - 

The reasons why one subsection may broaden the elements of the 

offense beyond the federal definition, while another subsection 

does not, can be as varied as the number of subsections to be 

examined. The analysis can be even more complicated, too, in cases 

(unlike this one) where the parties do not stipulate to the 

indivisibility of the statute in question. See Moncrieffe, 133 S. 

Ct. at 1684 (observing that a modified categorical approach applies 

to "state statutes that contain several different crimes, each 

described separately"); Mathis v. United States, 136 S. Ct. 2243, 

2256–57 (2016) (instructing that, to determine whether a statute 

contains multiple different crimes with different elements or one 

crime that can be committed by multiple different means, a court 

should look to the statute, to the state's case law, and, if those 

sources cannot answer the question, to the relevant charging 

instrument in the case before the court). 

There is no precedent in our circuit that even remotely 

supports defining exhaustion so loosely as to encompass De Lima's 

newly minted challenge. Rather, Ravindran and the subsequent 

similar cases we have cited, above, dictate the contrary: a 

reasonably elaborate argument that requires substantial analysis 

and development to support a general proposition is not exhausted 

merely because a party raises an entirely independent argument to 

support that same general proposition. 
- 21 - 

In the absence of First Circuit precedent providing 

grounds for us to review this belated challenge, our dissenting 

colleague relies on the Second Circuit's decision in Gill v. INS, 

420 F.3d 82 (2d Cir. 2005). Gill rested on two grounds: a loose 

reading of the statutory exhaustion requirement, and a broad 

reading of the court's power to override such requirements to avoid 

"manifest injustice." Id. at 86–88. The latter ground has since 

been implicitly rejected by the Supreme Court. See Grullon v. 

Mukasey, 509 F.3d 107, 115 (2d Cir. 2007) (citing Bowles v. 

Russell, 551 U.S. 205 (2007)). And no other circuit has since 

applied Gill's loose construction of the statutory exhaustion 

requirement of 8 U.S.C. § 1252(d)(1). Moreover, Gill involved an 

argument that was, in the court's words, logically "subsidiary" to 

the argument made before the BIA, 420 F.3d at 87, not an 

alternative argument that stood on its own legs (as De Lima seeks 

to advance). 

In deciding what arguments have been suitably developed 

before our own court, we regularly decline to assume for ourselves 

the burdens that De Lima would have us impose on the BIA. For 

example, in United States v. Whindleton, 797 F.3d 105 (1st Cir. 

2015), we considered whether Assault with a Dangerous Weapon 

("ADW") under Massachusetts General Laws ch. 265, § 15B(b), 

categorically qualified as a "violent felony" under the Armed 

Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Whindleton, 797 
- 22 - 

F.3d at 107. We found that it did, id. at 116, but expressly 

declined to consider one possible argument to the contrary--that 

Massachusetts's ADW might not be a "violent felony" because the 

least culpable mental state necessary to sustain a conviction might 

be less culpable than that of a violent felony--because "the 

defendant [had] not developed, or even expressly asserted, any 

argument" to that effect, id. at 116 n.12. Similar examples abound 

in other types of cases. See, e.g., Eldridge v. Gordon Bros. Grp., 

Nos. 12-2311 & 16-1929, 2017 WL 2981797, at *12 (1st Cir. July 13, 

2017) (finding waiver in a civil case where a mismanagement-based 

breach-of-implied-warranty claim was raised and argued, but only 

arising out of an unjustified liquidation, not also as to the 

mismanagement of stores); Coningford v. Rhode Island, 640 F.3d 

478, 482–83 (1st Cir. 2011) (finding a habeas corpus petitioner 

failed to exhaust a claim in state court, and rejecting the 

argument "that by arguing generally that the wayward introduction 

of prior bad acts evidence rendered his trial unfair, [petitioner] 

presented the state court with a claim based on a 'particular 

right' guaranteed by the Constitution"); United States v. Slade, 

980 F.2d 27, 31 (1st Cir. 1992) (applying the raise-or-waive rule 

in a criminal case, noting that "a party is not at liberty to 

articulate specific arguments for the first time on appeal simply 

because the general issue was before the district court"). 
- 23 - 

We observe, too, that the dissent's attempt to mitigate 

the unfortunate harm caused by a procedural defalcation leads it 

to intrude on the BIA's expertise even as it professes not to do 

so. The dissent projects onto the BIA's decision in Garcia-Madruga 

a finding that no fraudulent taking can be a "theft offense" under 

the INA. But the BIA in Garcia-Madruga determined only that 

fraudulent takings are "ordinarily" not theft offenses. GarciaMadruga, 24 I. & N. Dec. at 440. The decision in that matter sheds 

insufficient light on whether the BIA, were it presented with the 

argument De Lima now raises before us, might interpret "theft 

offense" under the INA to include the fraudulent takings proscribed 

in section 53a-119 on the basis that the INA's definition of 

consent differs from Connecticut's. See id. at 440 n.5 (declining 

to "discount the possibility that the theft and fraud aggravated 

felony compartments are not watertight such that certain 

crimes . . . may constitute both a theft offense and one 

'involv[ing] fraud'" (alteration in original)). Indeed, the BIA's 

holding in Matter of Ibarra, 26 I. & N. Dec. 809, 811–13 (BIA 

2016), shows that the INA has come to such a conclusion before. 

And the mere fact that section 53a-119 criminalizes a number of 

types of fraudulent takings likewise has little to do with whether 

one or more of those types of fraudulent takings would not 

constitute a "theft offense." 
- 24 - 

Finally, the dissent offers a series of policy reasons 

why exhaustion of theories of relief should not be required. In 

a perfect world, Congress might be persuaded by some of these 

reasons. It might, for example, limit exhaustion requirements to 

arguments that turn on matters with regard to which the INA has 

special expertise. Or it might make an exception for really strong 

arguments that would change a case's result. But we do not have 

the authority to adopt these changes to the law on our own accord. 

De Lima also advances quite a different twist on his 

theft-by-fraud argument. Returning to his preserved argument that 

theft of services is not a theft offense, he argues that if theft 

of services has a home in the INA's category of aggravated 

felonies, it is more like theft by fraud than it is like theft 

generally, and theft by fraud is an aggravated felony under the 

INA only when the victim's loss is more than $10,000, see 8 U.S.C. 

§ 1101(a)(43)(M)(i). Whether De Lima has preserved his ability to 

marshal this point in support of his clearly preserved argument 

that theft of services is not a theft offense, we need not decide. 

What distinguishes theft by fraud from theft of property is not 

the object of the theft. Rather, it is the means by which the 

theft is accomplished. Moreover, when Congress creates a general 

category of "theft offense" and a special category for one type of 

theft (theft by fraud), the logical inference is that other types 

of theft not specially dealt with remain in the general category. 
- 25 - 

III. 

For the foregoing reasons, we uphold the BIA's decision. 

De Lima's petition for review is denied. 

-Dissenting Opinion Follows- 

 
- 26 - 

LIPEZ, Circuit Judge, dissenting. I agree with the 

majority that De Lima's overbreadth theory is unavailing insofar 

as he argues that the term "theft offense" under the Immigration 

and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(G), does not 

include temporary deprivations of property or theft of services. 

I disagree, however, that we lack jurisdiction to consider his 

claim that third-degree larceny under Connecticut law does not 

qualify as a removable offense under the INA because it includes 

within its scope at least some forms of fraud that do not satisfy 

the federal definition of a generic "theft offense." To the 

contrary, our precedent on the INA's exhaustion requirement 

permits us to address De Lima's fraud overbreadth claim and achieve 

the proper resolution of this case. 

I.

 My colleagues maintain that De Lima's fraud-based claim 

is foreclosed by our caselaw because that overbreadth theory was 

not argued to the BIA. They rely on Ravindran v. INS, 976 F.2d 

754, 760-61 (1st Cir. 1992), where the panel held that it lacked 

jurisdiction to consider a claim of persecution different from the 

theory of persecution presented to the BIA. Specifically, we 

concluded that the petitioner's assertion to us that he would face 

persecution on account of his membership in a particular social 

group was unexhausted because he claimed to the BIA only that he 
- 27 - 

faced persecution on account of his political opinions. Id. at 

760. 

 In applying Ravindran to the very different 

circumstances of this case, the majority has adopted an 

unnecessarily restrictive view of the exhaustion requirement. 

Moreover, where, as here, the petitioner presents a compelling 

claim on the merits, refusing to consider his challenge to removal 

is inconsistent with "the fundamental interests at stake." Gill 

v. INS, 420 F.3d 82, 87 (2d Cir. 2005). I thus begin with the 

merits of petitioner's fraud claim before explaining why we have 

jurisdiction to provide the relief to which he is entitled. 

A. Connecticut's Prohibition on Theft by Fraud 

 As the majority explains, the success of De Lima's 

petition for review turns on whether his prior conviction under 

Connecticut law matches up, under the "categorical approach," with 

a "theft offense" under the INA, which was the basis of the removal 

proceedings initiated against him. See 8 U.S.C. § 1101(a)(43)(G). 

Our inquiry does not focus on De Lima's specific conduct, but 

rather, on whether the elements of the state offense of conviction 

satisfy the elements of the pertinent aggravated felony in the INA 

list. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 

(2017) ("Petitioner's state conviction is . . . an 'aggravated 

felony' under the INA only if the least of the acts criminalized 
- 28 - 

by the state statute falls within the generic federal definition 

of [a theft offense]."). 

A reasonable reading of Connecticut's third-degree 

larceny statute, see Conn. Gen. Stat. §§ 53a-119, 53a-124, leaves 

no doubt that it encompasses at least some crimes that the INA 

would classify as an "offense that involves fraud or deceit," under 

8 U.S.C. § 1101(a)(43)(M)(i), and not a "theft offense" within the 

meaning of § 1101(a)(43)(G). The BIA has expressly held that the 

offenses described in these two sections "ordinarily involve 

distinct crimes," with a theft offense requiring "the taking of 

property without consent" and a fraud offense "ordinarily 

involv[ing] the taking or acquisition of property with consent 

that has been fraudulently obtained." Matter of Garcia-Madruga, 

24 I. & N. Dec. 436, 440-41 (BIA 2008) (finding that welfare fraud 

under Rhode Island law is not an aggravated felony theft offense 

as defined in § 1101(a)(43)(G)). 

In both its general terms and specific examples, the 

offense of third-degree larceny in Connecticut includes "the 

taking or acquisition of property with consent that has been 

fraudulently obtained." Id. at 440 (emphasis added). The state's 

general larceny definition includes "wrongfully . . . obtain[ing]" 

the property of another, without the requirement of lack of 

consent. Conn. Gen. Stat. § 53a-119. In addition, the general 

provision's list of crimes that constitute larceny includes 
- 29 - 

offenses that fall explicitly on the fraud side of the BIA's theftfraud distinction: "[o]btaining property by false promise," id. 

§ 53a-119(3), "defrauding of public community," id. § 53a-119(6), 

and "[a]ir bag fraud," id. § 53a-119(16). Although the thirddegree larceny statute covers only some of the examples listed in 

§ 53a-119,4 the included crimes are not limited to those that 

involve the acquisition of property without consent. 

Indeed, the government acknowledged at oral argument 

that Connecticut's third-degree larceny statute includes crimes 

within its scope that both the BIA and other courts of appeals 

have characterized as fraud offenses. Yet, government counsel 

argued -- without citation to any authority -- that Connecticut 

courts have construed fraud in such a way that "fraud" in 

Connecticut fits within the generic definition of a theft offense. 

By way of explanation, she said the Connecticut Supreme Court has 

held that consent gained by fraud is not knowing consent. Hence, 

counsel maintained, a taking by fraud in Connecticut qualifies as 

a categorical "theft offense" under the INA because it involves 

"the taking of property without consent." Garcia-Madruga, 24 I. 

& N. Dec. at 440. At a minimum, she suggested, the BIA left open 

 4 The relevant portion of § 53a-124 states that larceny in 

the third degree involves the taking, obtaining, or withholding of 

motor vehicles valued at $10,000 or less; other property or service 

exceeding two thousand dollars in value; certain public records; 

and specified scientific or technical materials. 
- 30 - 

in Garcia-Madruga the question of what constitutes consent, or 

lack thereof, for purposes of classifying a crime under the INA, 

and she pointed to the agency's more recent holding that 

extortionate takings -- which, like fraud, may involve a knowing 

relinquishment of property -- fit the generic definition. See 

Matter of Ibarra, 26 I. & N. Dec. 809, 811 (BIA 2016) (stating 

that, because "consent" in extortion offenses is coerced, it "does 

not constitute the kind of 'consent' that exempts an offense from 

aggravated felony treatment under section 101(a)(43)(G) of the 

Act").5 The government appears to maintain that it is up to the 

BIA, in each particular instance, to decide whether a state theft 

crime involves a lack of consent as contemplated by Congress. 

This attempt at analytical gymnastics falls flat. 

Whatever the precise parameters of "consent" within the context of 

the INA, the term cannot be stretched so broadly as to entirely 

eliminate the differences between theft and fraud. By listing the 

two crimes separately, Congress clearly expressed its view that 

they are not interchangeable. See Soliman v. Gonzales, 419 F.3d 

276, 283 (4th Cir. 2005) ("Where Congress has utilized distinct 

 5 In Ibarra, the immigration judge had found that a conviction 

under a California penal statute was not categorically an 

aggravated felony theft offense "because the statute proscribes 

generic extortion in addition to generic theft offenses," and 

generic extortion is defined as "obtaining property 'from another 

with his consent induced by the wrongful use of force, fear, or 

threats.'" 26 I. & N. Dec. at 810 (quoting United States v. 

Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008)). 
- 31 - 

terms within the same statute, the applicable canons of statutory 

construction require that we endeavor to give different meanings 

to those different terms -- here 'fraud' and 'theft.'"). Congress, 

as the BIA has acknowledged, drew the line at consent. See id. at 

282 ("The key and controlling distinction between these two crimes 

is therefore the 'consent' element -- theft occurs without consent, 

while fraud occurs with consent that has been unlawfully obtained." 

(quoted in Garcia-Madruga, 24 I. & N. Dec. at 439)).

Thus, even if Connecticut chooses to label fraud as a 

form of theft, that state-law choice cannot override Congress's 

judgment to treat the two types of conduct as different crimes for 

purposes of removal. "The language of a federal statute must be 

construed to have the meaning intended by Congress, not the [state] 

legislature." Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir. 2000); 

see also Taylor v. United States, 495 U.S. 575, 590 (1990) ("It 

seems to us to be implausible that Congress intended the meaning 

of 'burglary' . . . to depend on the definition adopted by the 

State of conviction."); Drakes, 240 F.3d at 248 ("Pronouncing a 

flower to be a rose . . . does not necessarily make it one."). 

I do understand that "consent" is not a fixed concept, 

and the BIA's decision in Ibarra illustrates an instance when an 

intentional relinquishment of property was deemed by the agency to 

be without consent and, thus, a "theft offense" under 

§ 1101(a)(43)(G). Such a construction of the statute, by the 
- 32 - 

agency charged with administering it, is entitled to deference so 

long as it is reasonable. See Chevron, U.S.A. Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Garcia v. 

Sessions, 856 F.3d 27, 35 (1st Cir. 2017). Thus, if this case 

turned on whether one particular form of fraud could be construed 

to include lack of consent as an element, we might need to give 

the BIA an opportunity to consider the issue before deciding it 

ourselves. 

In this instance, however, the question is whether every 

crime covered by the Connecticut statute is a removable offense, 

and the provision plainly sweeps so broadly that we could not defer 

to the BIA if it concluded that all of the conduct criminalized by 

the provision qualifies as a generic "theft offense" under the 

INA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1989 (2015) (holding 

that, because the BIA's reliance on a state drug-paraphernalia 

offense as a basis for removal under 8 U.S.C. § 1227(a)(2)(B)(i) 

"makes scant sense," the BIA approach "is owed no deference under 

the doctrine described in Chevron"). Not only would such a 

determination be inconsistent with the line Congress has drawn 

between consensual and non-consensual takings, but the INA also 

designates fraud as a removable offense only when the property 

taken exceeds $10,000 in value. See 8 U.S.C. § 1101(a)(43)(M)(i). 

A conviction for third-degree larceny in Connecticut will not meet 

that financial threshold; the offenses covered by § 53a-124 either 
- 33 - 

include no minimum value for the wrongfully obtained property or 

specify values of $10,000 or less. See Conn. Gen. Stat. § 53a124. 

Accordingly, there is simply no insight that we could 

obtain from the BIA relevant to De Lima's fraud-based overbreadth 

challenge. To the contrary, it is clear that, if we addressed 

that claim, the BIA's order of removal, premised on De Lima's 

conviction for third-degree larceny under Connecticut law, could 

not stand.6 The majority resists this conclusion, focusing on the 

BIA's use of the word "ordinarily" in Garcia-Madruga. As I have 

explained, however, it is one thing to say that some fraudulent 

takings -- like extortion -- properly may be classified as theft 

offenses, and an entirely different thing to say that every 

fraudulent taking proscribed by the Connecticut statute could be 

so categorized. This statute is inescapably overbroad, and it is 

simply wrong for the majority to suggest that the BIA might -- or 

could -- conclude that it is not. Their rejection of my analysis 

necessarily rests on their view of the exhaustion requirement, to 

which I now turn. 

 6 Indeed, the outcome here is so obvious that there is no need 

to invoke the well-established rule of lenity that, as the majority 

acknowledges, "plays a role in construing provisions of the INA 

that trigger deportation or removal." Maj. Op. at 9. See Fong 

Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) ("We resolve the doubts 

in favor of [the alien] because deportation is a drastic 

measure . . . ."). 
- 34 - 

B. Exhaustion 

 Although I understand how my colleagues have read our 

precedent to foreclose De Lima's fraud-based overbreadth 

challenge, their view fails to take into account how the 

circumstances of this case differ from those underlying most of 

our exhaustion precedents. The exhaustion requirement only makes 

sense where, by ignoring it, we would exceed our jurisdiction or 

violate some principle of administrative law. As I shall explain, 

neither of those barriers exist here, and the majority's

unreasonably strict application of the exhaustion doctrine 

unnecessarily produces an unjust result. 

 As a threshold matter, the majority correctly asserts 

that "[t]he law is clear that 'theories not advanced before the 

BIA may not be surfaced for the first time in a petition for 

judicial review of the BIA's final order.'" Maj. Op., § C (quoting 

Pérez Batres v. Lynch, 796 F.3d 157, 160 (1st Cir. 2015)). Indeed, 

exhaustion is a statutory requirement, see 8 U.S.C. § 1252(d)(1), 

and, hence, mandatory. See Gill, 420 F.3d at 85. Ordinarily, 

then, when an alien fails to present an issue to the BIA, we lack 

jurisdiction to consider it. Mazariegos-Paiz v. Holder, 734 F.3d 

57, 62 (1st Cir. 2013). Thus, if De Lima had not presented an 

overbreadth theory to the agency, I would have to agree with my 

colleagues that we could not consider that claim. The statute's 

overbreadth, however, was the focus of De Lima's argument to the 
- 35 - 

BIA, and he framed his argument inclusively more than once. See, 

e.g., Br. to the BIA, at 5 ("The Immigration Judge Erred in Holding 

that Connecticut Larceny in the Third Degree is an Aggravated 

Felony"); id. at 7 ("The Connecticut Statute for Third-Degree 

Larceny is Overbroad and Covers Offenses not Criminalized by the 

Federal Definition of Theft"). 

 The question before is thus only "the level of 

specificity at which a claim must have been made to have been 

'exhausted' under § 1252(d)(1)." Gill, 420 F.3d at 85. In my 

view, the answer to that question must take into account the nature 

of the claim under scrutiny. After all, the primary purpose of 

the exhaustion requirement is to protect the agency's authority 

over matters within its area of expertise. See, e.g., MazariegosPaiz, 734 F.3d at 63 (stating that the exhaustion requirement 

"afford[s] the parties the full benefit of the agency's expertise 

and allow[s] the agency the first opportunity to correct its own 

bevues"). In determining whether a claim has been properly 

exhausted, therefore, it is appropriate to consider whether 

judicial review of that claim would usurp the agency's function. 

See id. at 62-63.

With that consideration in mind, the agency is 

unquestionably entitled to the first opportunity to decide issues 

that depend on facts, particularly when there is an administrative 

record that includes testimony subject to a credibility 
- 36 - 

assessment. The validity of a petitioner's claim that he has been, 

or will be, subject to persecution if removed from the United 

States is one such issue, and it was the focus in Ravindran, the 

case on which the majority relies to say that we lack jurisdiction 

over De Lima's fraud-based overbreadth claim. The panel in 

Ravindran reasonably rejected the petitioner's effort to switch 

theories of persecution, as the facts relevant to his original 

claim of political persecution could be expected to differ from 

those relevant to his claimed persecution based on membership in 

a social group. See 976 F.2d at 761 n.5 (describing at length the 

multiple factual issues implicated by the unpreserved social-group 

claim); see also, e.g., Ramirez-Matias v. Holder, 778 F.3d 322, 

327 (1st Cir. 2015) (holding that petitioner failed to exhaust 

claim of persecution based on social group where he did not present 

that theory to the BIA); Silva v. Gonzales, 463 F.3d 68, 72 (1st 

Cir. 2006) (holding that petitioner did not exhaust his past 

persecution claim, explaining that the "narrow argument in his 

appeal to the BIA is not sufficient to allow a broader inquiry now 

into the IJ's factual determination that Silva did not suffer past 

persecution"). 

 Here, however, De Lima merely offers an additional legal 

argument to support his previously made claim that Connecticut's 

third-degree larceny provision is overbroad as a matter of law. 

Significantly, as explained above, we would not be "usurp[ing] the 
- 37 - 

agency's function" in considering this extension of his claim, as 

there is only one way to answer the pure question of law that he 

raises. Mazariegos-Paiz, 734 F.3d at 62. Thus, there is no 

ambiguity implicating possible deference to the agency's judgment. 

See Chevron, 467 U.S. at 842-43. Moreover, just as importantly, 

the BIA already has accepted De Lima's argument, holding in GarciaMadruga that the taking of property "with consent that has been 

fraudulently obtained" is ordinarily not a generic "theft 

offense." 24 I. & N. Dec. at 440. We do not disturb the "carefully 

calibrated balance of responsibilities" embodied in the exhaustion 

requirement where, as here, the petitioner's reformulated claim 

involves a legal issue that the agency previously has resolved. 

Mazariegos-Paiz, 734 F.3d at 63; see also Dale v. Holder, 610 F.3d 

294, 301 (5th Cir. 2010) (noting that "administrative exhaustion 

requires only that federal courts refrain from addressing an 

immigration issue until the appropriate administrative authority 

has had the opportunity to apply its specialized knowledge and 

experience to the matter" (internal quotation marks and brackets 

omitted)). 

 My colleagues confusingly highlight the complexity of 

the categorical analysis and suggest that, with the approach to 

exhaustion that I consider appropriate, the BIA and the opposing 

party would need to anticipate unmade arguments. That approach, 

however, does not require the BIA to address arguments the 
- 38 - 

petitioner did not expressly bring to the agency, and, hence, there 

is no basis for asserting that it would impose "an unfair and 

daunting task" on the BIA or opposing party. The question is 

whether we treat as exhausted an argument raised to us that is a 

variation on a legal argument previously raised to the BIA. There 

is nothing unfair or daunting for the government or for us in 

addressing such an argument. 

 How we apply the exhaustion requirement in this case 

will determine whether De Lima faces mandatory removal based on a 

clear error of law. Where the purpose of exhaustion will not be 

advanced and the outcome is so clearly unjust, a strict application 

of that doctrine is both unwise and unnecessary. The Second 

Circuit has adopted a sensible approach that remains true to the 

rationale for exhaustion, concluding that the statutory exhaustion 

provision, § 1252(d)(1), "bars the consideration of bases of relief 

that were not raised below, and of general issues that were not 

raised below, but not of specific, subsidiary legal arguments, or 

arguments by extension, that were not made below." Gill, 420 F.3d 

at 86. 

My colleagues suggest that I am forced to rely on Second 

Circuit law because "[t]here is no precedent in our circuit that 

even remotely supports defining exhaustion so loosely as to 

encompass De Lima's newly minted challenge." I agree that we have 

no case adopting the pragmatic, fair approach taken by the Second 
- 39 - 

Circuit. My point, however, is that we have no law foreclosing 

such an approach in a case such as this, where the general claim 

was raised to the BIA, the dispositive issue is one of law, and 

there is only one permissible outcome. Moreover, my colleagues 

incorrectly imply that, in addition to endorsing the Second 

Circuit's reading of the statutory exhaustion requirement, I rely 

on the Gill court's alternative rationale that courts possess the 

power to assert jurisdiction to avoid manifest injustice even where 

there has been a failure to exhaust administrative remedies. See 

Gill, 420 F.3d at 87. That reasoning is not part of my analysis, 

which relies solely on a construction of the exhaustion requirement 

of § 1252(d)(1) -- a task that undeniably belongs to the courts.7 

 Indeed, where the error is so plain, we should feel 

obliged to undo the BIA's incorrect classification of De Lima's 

third-degree larceny conviction and the mandatory removal order 

premised on that finding. The Supreme Court has highlighted the 

"harsh consequences" that flow from the aggravated felony 

classification. Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 

(2013). Under the INA, the Attorney General may not "grant[] 

discretionary relief from removal to an aggravated felon, no matter 

 7 I am frankly puzzled by my colleagues' reference to the 

"perfect world" where "Congress might be persuaded" by my analysis. 

Although Congress has imposed the exhaustion requirement, it is 

the job of the courts to apply that requirement in a fair and 

sensible manner. 
- 40 - 

how compelling his case." Id. We should not hesitate to adopt an 

approach -- permitted by our precedent -- that would avoid unjustly 

imposing those consequences. As the Second Circuit observed in 

Gill, while "there is no jurisdiction of the heart, it does not 

follow that a court must be completely indifferent to the interests 

at stake when exercising lawful discretion or interpreting general 

statutory language." 420 F.3d at 87 n.7 (internal quotation marks 

omitted). 

* * * 

In sum, "the merits of [De Lima's] . . . argument are 

clear-cut in his favor, and 'go[] to the very basis for his 

deportation.'" Gill, 420 F.3d at 88 (quoting Marrero Pichardo v. 

Ashcroft, 374 F.3d 46, 54 (2d Cir. 2004)). We have the authority 

to hear his claim, and we should do so. I therefore respectfully 

dissent from the majority's denial of De Lima's petition for 

review.