          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.
            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.


                                        - 2 -
           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


                                  - 3 -
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.




                                       - 4 -
               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).


                                       - 5 -
          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


                                - 6 -
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


                                    - 7 -
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


                              - 8 -
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


                                  - 9 -
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 Soto-

Hernandez, 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.


                                      - 10 -
             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 second-

degree 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


                                    - 11 -
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 third-

degree 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)).


                                          - 12 -
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


                                       - 13 -
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. Gomez-

Mendez, 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


                              - 14 -
'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.


                                 - 15 -
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 common-

law 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


                                     - 16 -
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


                                    - 17 -
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


                                - 18 -
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.


                                    - 19 -
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.




                              - 20 -
           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


                                   - 21 -
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").




                              - 22 -
               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.                     Garcia-

Madruga, 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."




                                         - 23 -
           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.


                                      - 24 -
                              III.

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

De Lima's petition for review is denied.




                  -Dissenting Opinion Follows-




                             - 25 -
            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




                                    - 26 -
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




                               - 27 -
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


                                      - 28 -
offenses that fall explicitly on the fraud side of the BIA's theft-

fraud 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 third-

degree 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.


                                    - 29 -
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


      5In 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)).


                                    - 30 -
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


                                  - 31 -
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


                                - 32 -
include no minimum value for the wrongfully obtained property or

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

124.

             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 . . . .").


                                - 33 -
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


                                           - 34 -
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., Mazariegos-

Paiz, 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


                                     - 35 -
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


                              - 36 -
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 Garcia-

Madruga 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


                                   - 37 -
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


                                 - 38 -
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.


                                     - 39 -
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.




                               - 40 -
