            United States Court of Appeals
                        For the First Circuit

No. 13-2202

              LAZARO ANTONIO MEJIA, a/k/a ZAPADA MEJIA,

                             Petitioner,

                                  v.

         ERIC H. HOLDER, JR., United States Attorney General,

                             Respondent.


                  PETITION FOR REVIEW FROM AN ORDER
                 OF THE BOARD OF IMMIGRATION APPEALS


                                Before

                         Lynch, Chief Judge,
                        Lipez, Circuit Judge,
                      and Lisi,* District Judge.


     Stephen A. Lagana on brief for petitioner.
     Jesse M. Bless, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Assistant Attorney General, Civil Division, and David V.
Bernal, Assistant Director, on brief for respondent.


                            June 25, 2014




     *
          Of the District of Rhode Island, sitting by designation.
           LYNCH, Chief Judge.      Lazaro Antonio Mejia applied for

"special rule cancellation" of his removal from the United States

under section 203 of the Nicaraguan and Central American Relief Act

("NACARA"), Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 2193-

2201, as amended by Pub. L. No. 106-386, § 1510(b), 114 Stat. 1464,

1531 (2000).    He was ruled ineligible for relief on the basis of

his criminal history.      In this petition, Mejia raises a single

issue of law as to which we have jurisdiction.

           The Board of Immigration Appeals (BIA) characterized his

1999 Massachusetts shoplifting conviction as a crime involving

moral   turpitude,   citing   one   BIA     opinion     that    considered    a

Pennsylvania    statute,   and   not      undertaking    any     analysis    of

Massachusetts law or a categorical approach.                   The government

attempts to fill in what was missing from the BIA's analysis in its

brief to our court.     The petitioner both objects to the BIA not

having done the analysis and argues that a modified categorical

approach was required. Because the BIA did not adequately consider

the statutory issue presented, we grant the petition, vacate the

BIA's order insofar as it denied relief on these grounds, and

remand for further proceedings.

                                    I.

           Mejia arrived in the United States from El Salvador on an

unknown date.   On April 9, 1999, he admitted to a single count of

shoplifting in violation of Mass. Gen. Laws ch. 266, § 30A, and the


                                    -2-
trial judge continued his case without making a finding of guilt

while Mejia served a term of probation. After the continuance, the

trial judge dismissed the shoplifting charges.

          In May 2012, Mejia was charged with larceny in an amount

over $250 in violation of Mass. Gen. Laws ch. 266, § 30(1), and he

later admitted to an amended charge of larceny by inducement, Mass.

Gen. Laws ch. 266, § 34.     The trial judge continued the case

without a finding of guilt, placed Mejia on probation, and ordered

him to pay $500 in restitution.

          On January 25, 2013, Mejia was served with a Notice to

Appear, and was charged with removability on two grounds: (1) as

"[a]n alien present in the United States without being admitted or

paroled," 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien who has

been "convicted of, or who admits having committed . . . a crime

involving moral turpitude," id. § 1182(a)(2)(A)(i)(I).       Mejia

conceded removability on the first ground, but denied that he was

removable on the second.

          Mejia applied for special rule cancellation of removal

under section 203 of NACARA before the Immigration Judge (IJ).   In

order to be eligible for this relief, Mejia had to show, inter

alia, that he was not inadmissible for having been convicted of a

crime involving moral turpitude under § 1182(a)(2).       8 C.F.R.

§ 1240.66(b).   He conceded that his 2012 larceny by inducement

conviction was such a crime but argued that he fell within the


                                  -3-
petty offense exception, under which the bar on admissibility for

those convicted of a crime of moral turpitude does not apply "to an

alien who committed only one crime" if that crime does not carry a

maximum penalty of over one year. 8 U.S.C. § 1182(a)(2)(A)(ii)(II)

(emphasis added).

             On May 7, 2013, the IJ denied Mejia's application for

cancellation of removal under NACARA on grounds that need not

detain us.1    Mejia appealed to the BIA, which dismissed his appeal

on August 30, 2013.     The BIA concluded that "the Immigration Judge

properly found that [Mejia]'s shoplifting conviction is also a

crime involving moral turpitude rendering him ineligible for the

petty offense exception . . . .       See In re Jurado-Delgado, 24 I. &

N. Dec. 29, 34 (BIA 2006)."     We have just quoted the extent of its

reasoning.     This petition for review followed.

                                  II.

             The government argues that we lack jurisdiction over this

petition      because   Mejia    is     removable   under   8   U.S.C.

§ 1182(a)(2)(A)(i)(I) as a result of his conviction for a crime

involving moral turpitude.      See 8 U.S.C. § 1252(a)(2)(C) ("[N]o

court shall have jurisdiction to review any final order of removal



     1
          The IJ also denied Mejia's applications for asylum and
for withholding of removal under the Immigration and Nationality
Act § 241(b)(3) and the Convention Against Torture. Mejia appealed
those rulings to the BIA, which agreed with the IJ. He does not
raise these issues in his petition before this court and so we do
not address them.

                                  -4-
against an alien who is removable by reason of having committed a

criminal offense covered in section 1182(a)(2). . . ."). We reject

the argument we lack jurisdiction.            Petitioner presents a legal

issue: whether the BIA erred when it concluded, based on the

analysis    quoted   above,     that    a    violation   of   Massachusetts'

shoplifting statute is a crime involving moral turpitude.                See 8

U.S.C. § 1252(a)(2)(D).

            The ultimate legal conclusion as to whether the offenses

for which the petitioner was convicted constitute a ground for

removal, or for preclusion of cancellation of removal, would be a

legal issue that we would review de novo.          Campbell v. Holder, 698

F.3d 29, 32 (1st Cir. 2012).           That has its limits.      "We afford

deference    to   the   BIA's    reasonable      interpretations    of     the

[Immigration and Nationality Act], including its construction of

the term 'moral turpitude,' but not to its reading of an underlying

criminal statute (as to which it has no expertise)."               Patel v.

Holder, 707 F.3d 77, 79 (1st Cir. 2013).          Where, as here, "the BIA

has rendered a decision with its own analysis of the question at

issue, our review focuses on the BIA's decision, not the IJ's."2


     2
         Petitioner misses the point in his argument that the
government bore the burden of establishing, by clear and convincing
evidence, that he was deportable.     He states correctly that in
removal proceedings, the government "has the burden of establishing
by clear and convincing evidence that, in the case of an alien who
has been admitted to the United States, the alien is deportable."
8 U.S.C. § 1229a(c)(3)(A) (emphasis added). But this reliance is
misplaced: the government in this case did not allege that Mejia
had been admitted to the United States and was deportable on some

                                       -5-
Vásquez   v.   Holder,   635   F.3d    563,   565   (1st   Cir.    2011).

            The difficulty here is that the BIA has not provided a

comprehensible analysis to support its conclusion.                We explain.

Congress has never defined the term "moral turpitude" in the

immigration law context. We have approved the BIA's definition for

immigration purposes of a crime involving moral turpitude as

"conduct that shocks the public conscience as being inherently

base, vile, or depraved, and contrary to the accepted rules of

morality and the duties owed between persons or to society in

general."   Patel, 707 F.3d at 80 (quoting Da Silva Neto v. Holder,

680 F.3d 25, 29 (1st Cir. 2012)) (internal quotation mark omitted).

"The focus of the moral turpitude analysis is on the inherent

nature of the crime of conviction, as opposed to the particular

circumstances of the actual crime committed . . . ."                Nguyen v.

Reno, 211 F.3d 692, 695 (1st Cir. 2000).




ground, but rather alleged that he was inadmissible under 8 U.S.C.
§ 1182. Further, Mejia conceded that he was removable on the first
ground asserted by the government: that he was "[a]n alien present
in the United States without being admitted or paroled," id.
§ 1182(a)(6)(A)(i). It is Mejia who bore the burden of proving
that he is "clearly and beyond doubt entitled to be admitted and is
not inadmissible," id. § 1229a(c)(2)(A); see Valenzuela-Solari v.
Mukasey, 551 F.3d 53, 56 (1st Cir. 2008) (where an alien "was not
admitted to the United States and so is deemed to be an applicant
for admission, we have held that the alien has the burden under
§ 1229a(c)(2)(A) of proving he is not inadmissible.").
     Petitioner also bore the burden of establishing his
eligibility for special rule cancellation of removal, see 8 U.S.C.
§ 1229a(c)(4)(A), which in turn required him to show that he was
not inadmissible under § 1182(a)(2).

                                      -6-
          But to answer that question the BIA must look to the

pertinent state law as to the offense of conviction.                   The analysis

of whether petitioner's shoplifting offense was a crime involving

moral turpitude looks first to the "inherent nature of the crime of

conviction, as defined in the criminal statute."                     Idy v. Holder,

674 F.3d 111, 118 (1st Cir. 2012) (quoting Maghsoudi v. INS, 181

F.3d 8, 14 (1st Cir. 1999)) (internal quotation mark omitted). The

language of the statute may be clear that the conduct it proscribes

fits the definition of moral turpitude.              In that case, the inquiry

ends with the statutory language.              If, however, the statute is

divisible, encompassing both turpitudinous and non-turpitudinous

conduct, then the BIA must apply what we have called the "modified

categorical approach," Patel, 707 F.3d at 79, under which we "look

to the record of conviction -- the indictment, plea, verdict, and

sentence," to determine the nature of the petitioner's conviction.

Idy, 674 F.3d at 118.

          Where theft offenses are involved, the BIA "generally

distinguishes between turpitudinous thefts and their less depraved

counterparts      by     asking    whether     the       defendant     intended   to

permanently deprive the owner of the purloined property."                    Patel,

707 F.3d at 80; see Matter of Grazley, 14 I. & N. Dec. 330, 333

(BIA 1973) ("Ordinarily, a conviction for theft is considered to

involve   moral        turpitude   only      when    a     permanent     taking   is

intended.").      The question faced by the BIA was whether the


                                       -7-
Massachusetts shoplifting statute of conviction requires an intent

to permanently deprive a victim of property.

             The BIA's opinion on the issue before us amounts to a

one-sentence conclusion that petitioner's shoplifting conviction

"is also a crime involving moral turpitude."                     Likewise, its sole

supporting citation was to an earlier case, In re Jurado-Delgado,

24 I. & N. Dec. 29 (BIA 2006), in which the BIA addressed whether

a violation of Pennsylvania's retail theft statute was a crime

involving moral turpitude for these purposes.

             Generally,     "our      review    is    limited    to     the    reasoning

articulated     below,"     Patel,     707     F.3d    at   80   n.1,    and    we    have

emphasized that "[a] reviewing court should judge the action of

[the BIA] based only on reasoning provided by the agency, not based

on   grounds   constructed       by    the     reviewing     court,"     Mihaylov       v.

Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004) (alteration in original)

(quoting Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001)) (internal

quotation marks omitted).              In this case, the BIA provided no

reasoning,     offering      instead      a     bare    conclusion.            That    is

insufficient.

             Further,      the   BIA's       citation       to   Jurado-Delgado         is

misplaced      in   this     case,      which        requires     the     parsing      of

Massachusetts' shoplifting statute,                   Mass. Gen. Laws ch. 266,

§ 30A.      Among other differences between the two statutes, the

Pennsylvania statute at issue in Jurado-Delgado did not expressly


                                         -8-
prohibit any types of shoplifting in which the intent required was

an intent to "permanently deprive" the owner of property.          See 18

Pa. Cons. Stat. § 3929. By contrast, the Massachusetts shoplifting

statute includes a section that prohibits the shoplifting of a

shopping cart with "the intention of permanently depriving the

merchant of the possession, use or benefit of such [a] cart."

Mass. Gen. Laws ch. 266, § 30A.            The BIA, as would have been

appropriate, simply did not use the modified categorical approach,

and so did not consider whether there were any relevant variations

in the Massachusetts statute, see Patel, 707 F.3d at 80.                The

government attempts to fill this gap by briefing to us its view of

this   issue   in   the   absence   of   such   analysis.   That   is   not

appropriate; the BIA must do its own work.

           We therefore grant the petition for review and remand to

the BIA for further proceedings consistent with this opinion.




                                    -9-
