No. 20-1607

AIRES DANIEL BENROS DA GRACA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Thompson and Lipez, Circuit Judges, and Torresen, District Judge.

Robert F. Weber, with whom Randy Olen was on brief, for petitioner. Melissa K. Lott, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian Boynton, Acting Assistant Attorney General, and Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent.

 Of the District of Maine, sitting by designation. January 18, 2022

- 2 - TORRESEN, District Judge. Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the "Board") affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws ("RIGL") § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.

I. Background

Petitioner Da Graca is a 45-year-old citizen of Cape Verde who came to the United States as a lawful permanent resident in 1989, at the age of thirteen. On September 26, 2016, Da Graca was convicted in the Superior Court in Providence, Rhode Island, of driving a motor vehicle without consent of the owner or lessee in violation of RIGL § 31-9-1. The full text of RIGL § 31-9-1 reads as follows:

Any person who drives a vehicle, not his or her own, without the consent of its owner or lessee, and with intent temporarily to deprive the owner or lessee of his or her possession of the vehicle, without intent to steal the vehicle, is guilty of a felony. The consent of the owner or lessee of a vehicle to its taking or driving shall not in any case be presumed or implied because of the owner's or lessee's consent on a prior occasion to the taking or driving of that vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in any unauthorized taking or

- 3 - driving, is guilty of a felony. Any person convicted of a violation of this section shall be fined not more than five thousand dollars ($5,000) or imprisoned for a term of not more than five (5) years, or both. Da Graca received a five-year suspended sentence and five years of probation.

On September 16, 2019, the Department of Homeland Security initiated removal proceedings against Da Graca by serving him with a Notice to Appear ("NTA"). The NTA charged Da Graca with removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony theft offense as defined by the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G).

At the Immigration Court in Boston, Da Graca argued that he was eligible for cancellation of removal and voluntary departure on the ground that a conviction under RIGL § 31-9-1 did not constitute an aggravated felony theft offense.

In an oral decision issued on December 12, 2019, the Immigration Judge determined that Da Graca's conviction for driving witho