FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

CHRISTIAN LOPEZ,                            No. 23-870
                                            Agency No.
            Petitioner,
                                           A205-882-422
 v.

MERRICK B. GARLAND, Attorney

OPINION

General,

            Respondent.

        On Petition for Review of an Order of the
            Board of Immigration Appeals

           Argued and Submitted May 17, 2024
                San Francisco, California

                Filed September 11, 2024

  Before: Sidney R. Thomas, Consuelo M. Callahan, and
            Gabriel P. Sanchez, Circuit Judges.

           Opinion by Judge Sidney R. Thomas;
Partial Concurrence and Partial Dissent by Judge Gabriel P.
                         Sanchez
2                        LOPEZ V. GARLAND


                          SUMMARY*


                          Immigration

    Denying Christian Lopez’s petition for review of a
decision of the Board of Immigration Appeals, the panel
concluded that: (1) Lopez’s petit larceny convictions under
Reno Municipal Code (“RMC”) § 8.10.040 are crimes
involving moral turpitude (“CIMTs”) that made him
removable; (2) the agency did not err in denying Lopez’s
asylum application as untimely; and (3) substantial evidence
supported the denial of withholding of removal.
      In Matter of Diaz-Lizarraga, 

 (BIA
2016), the BIA held that a theft offense constitutes a CIMT
if it includes an intent to deprive either permanently or under
circumstances where the owner’s property rights are
substantially eroded. The panel explained that its task, after
the recent decision in Loper Bright Enterprises v. Raimondo,

 (2024), is to evaluate a statute independently
under Skidmore v. Swift & Co., 

 (1944), giving
“due respect,” but not binding deference to the agency’s
interpretation.
    The panel concluded that the BIA’s decision in Diaz-
Lizarraga was entitled to such respect, explaining that the
decision is thorough and well-reasoned, consistent with the
longstanding distinction between substantial and de minimis
takings, and consistent with definitions of the Supreme
Court and Model Penal Code.


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      LOPEZ V. GARLAND                       3


    Applying Diaz-Lizarraga, the panel concluded that
RMC § 8.10.040 categorically defines a CIMT. Because the
ordinance uses the term “deprive,” but does not define it, the
panel looked to the Model Penal Code and Nevada state law,
which both define the term as a “withholding” that is either
permanent or for so long that a substantial portion of its
value to the owner is lost.
    The panel rejected Lopez’s argument that he was not
removable because he could not obtain a pardon for petty
municipal offenses. This argument was based on the
“pardon waiver,” 

(a)(2)(A)(vi), which
provides that a noncitizen cannot be removed for a CIMT
after having received a full and unconditional pardon for the
relevant conviction. Looking to the plain language of the
statute, the panel concluded that the lack of availability of a
pardon for a conviction does not render the conviction an
improper basis for removal.
    Lopez’s ground of removability, 

(a)(2)(A)(ii), requires convictions for two or more
CIMTs “not arising out of a single scheme of criminal
misconduct.” The panel rejected Lopez’s argument that his
convictions arose from a “single scheme,” relying on Szonyi
v. Whitaker, 

 (9th Cir. 2019), where this court
deferred to the BIA’s interpretation that crimes are not part
of a “single scheme” when each act constitutes a complete
crime.
    As to asylum, the panel rejected Lopez’s arguments for
why he should have been granted an exception to the one-
year filing deadline due to “changed” or “extraordinary”
circumstances based on his youth or ignorance of the law, or
based on his disabilities.
4                    LOPEZ V. GARLAND


    Finally, the panel concluded that substantial evidence
supported the denial of withholding of removal. As to past
persecution, the record did not compel the conclusion that
the abuse Lopez’s mother suffered by his father while she
was pregnant with Lopez was directed intentionally at him.
The record supported the agency’s conclusion that Lopez
will not face future persecution in Mexico based on his
identity as his mother’s son.
    Concurring in part and dissenting in part, Judge Sanchez
joined in the majority’s application of Loper Bright and its
determination that Diaz-Lizarraga is entitled to Skidmore
deference. However, he disagreed with the majority that
Lopez’s convictions are CIMTs. Observing that the
ordinance does not define what an “intent to deprive” means,
Judge Sanchez wrote that, by its plain terms, the ordinance
is not limited to takings considered CIMTs under Diaz-
Lizarraga. Further, he wrote that the majority erred by
reaching for an interpretation not found in the text of the
ordinance or any decision by a Nevada state court, and that
the majority ignored that courts must construe statutory
ambiguities in favor of the person facing removal. Judge
Sanchez would grant Lopez’s petition.


                       COUNSEL

Kyle Edgerton (argued), Edgerton Legal LLC, Reno,
Nevada, for Petitioner.
Spencer S. Shucard (argued), Trial Attorney; Keith I.
McManus, Assistant Director; Office of Immigration
Litigation; Brian M. Boynton, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
                      LOPEZ V. GARLAND                       5

OPINION

THOMAS, Circuit Judge:

    Christian Lopez, a native and citizen of Mexico, seeks
review of a decision by the Board of Immigration Appeals
(“BIA”) dismissing his appeal from a decision by an
immigration judge (“IJ”) finding him removable due to the
commission of crimes involving moral turpitude (“CIMTs”)
and denying asylum and related relief. We deny the petition
for review.
    The BIA had jurisdiction to review the IJ’s decision
under 

(b)(3). We have jurisdiction to
review the BIA’s final order of removal under 

(b)(2).
    We review legal questions, including questions of
statutory interpretation, de novo. Diaz-Quirazco v. Barr,

 (9th Cir. 2019). Prior to the Supreme
Court’s decision in Loper Bright Enterprises v. Raimondo,

 (2024), we would determine whether the
agency’s interpretation was due deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). See Diaz-Quirazco, 931 F.3d at 838–39.
However, after Loper Bright Enterprises, we may look to
agency interpretations for guidance, but do not defer to the
agency. 144 S. Ct. at 2266–67; see Skidmore v. Swift & Co.,

 (1944) (explaining that, while an agency’s
interpretation is “not controlling,” it may still have “power
to persuade” based on “the thoroughness evident in its
consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements”). We
review factual findings, including those that underlie
eligibility determinations for asylum and related relief, under
6                     LOPEZ V. GARLAND


the substantial evidence standard. Rodriguez Tornes v.
Garland, 

 (9th Cir. 2021).
    Where the BIA issues its own review of the evidence and
law, our “review is limited to the BIA’s decision, except to
the extent the IJ’s opinion is expressly adopted.” Guerra v.
Barr, 

 (9th Cir. 2020)(internal quotation
marks omitted). The portions of the IJ decision that are
“incorporated” by the BIA are treated as part of the BIA
decision. Maie v. Garland, 

, 845 (9th Cir. 2021).
                              I
    Lopez was brought to the United States by his mother,
Yadira, when Lopez was approximately two years old.
Yadira left Mexico with her children due to domestic
violence perpetrated by Lopez’s father, Rodrigo. According
to Yadira, Rodrigo routinely inflicted serious physical
violence on her that sometimes resulted in bleeding and loss
of consciousness. The violence was especially brutal during
Yadira’s pregnancy with Lopez, when Rodrigo “beat [her]
in the stomach” and tried to choke her. Yadira also testified
that Rodrigo was violent towards their children. When asked
to speculate about Rodrigo’s motive, Yadira testified that the
violence seemed to “start out of nothing” and was likely
exacerbated by drug use. Yadira contacted the police at least
once but reported that they did nothing to help. Yadira
testified that, after Lopez was born, Rodrigo “rejected” his
son and expressed suspicions that Yadira had been
unfaithful. Lopez required special assistance in school
throughout his childhood.
    Upon arriving in the United States in 2000, Yadira and
Lopez lived for approximately thirteen years without lawful
immigration status and did not file for asylum. In 2013, one
of Lopez’s relatives received a T visa, which made Lopez
                      LOPEZ V. GARLAND                       7


eligible for T-5 nonimmigrant status as a family beneficiary.
However, in 2017, Lopez inadvertently allowed his T-5
status to expire. At that point, Lopez was 19 years old.
    In July 2019, Lopez was arrested while driving a friend’s
borrowed car that had been reported as stolen. Once in
custody, Lopez was charged with numerous offenses
including trespassing, shoplifting, and carrying a concealed
weapon without a permit. Lopez pleaded guilty in
September 2021 to the felony weapons charge and four
municipal charges of petit larceny under section 8.10.040 of
the Reno Municipal Code (“RMC”) in exchange for
dismissal of the remaining charges. Records from Reno
Municipal Court list the dates for Lopez’s larceny offenses
as May 14, May 17, May 21, and May 28, 2019. Lopez was
sentenced to 12–30 months in Nevada prison for the
weapons charge. After serving 14 months, Lopez was
released from prison in January 2021 and placed directly in
the custody of the Department of Homeland Security
(“DHS”).
     On January 22, 2021, DHS initiated removal
proceedings by serving Lopez with a notice to appear
(“NTA”) charging him as removable under Section 237 of
the Immigration and Nationality Act (“INA”). The NTA
lists, as the sole basis for removability, the fact that Lopez
was “convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct.” See

(a)(2)(A)(ii). The convictions referenced in
the NTA are the four counts of petit larceny under
RMC § 8.10.040.
    Lopez argued before the IJ that his municipal charges did
not provide a valid basis for removal for three reasons. First,
he argued that RMC § 8.10.400 does not “categorically”
8                     LOPEZ V. GARLAND


describe a CIMT because it does not include the requisite
intent element. Second, he argued that his larceny
convictions arose from a “single scheme of criminal
misconduct,” and thus did not qualify as “two crimes” for
the purpose of subsection 1227(a)(2)(A)(ii). The IJ rejected
these arguments in a written decision on March 30, 2021,
and the BIA declined to consider Lopez’s interlocutory
appeal. Lopez subsequently filed a motion presenting a third
argument for terminating removal based on the
unavailability of a pardon for his municipal offenses.
    Concurrently, Lopez filed an application for asylum,
withholding of removal, and protection under the
Convention Against Torture (“CAT”) in May 2021. For
asylum and withholding, Lopez claimed membership in four
particular social groups (“PSGs”): (1) immediate relatives of
Yadira, (2) “rejected children of Mexican men,” (3) “recent
Mexican deportees perceived as pochos,” and (4) individuals
with “actual and imputed anti-gang political opinion.”
Lopez argued that he suffered past persecution in utero
based on Rodrigo’s abuse of Yadira during her pregnancy.
Lopez also asserted a fear of future persecution at the hands
of his father, and from elements of Mexican society that are
hostile to abandoned children, deportees from the United
States, and individuals involved in anti-gang activism.
Lopez’s I-589 acknowledged that the application was filed
more than one year after the lapse of his T status, but
explained that he previously “had no access to legal advice”
or information about the asylum process. Lopez argued that
he should be granted an exception to the ordinary deadline
due to changed or exceptional circumstances.
    On October 5, 2021, the IJ found Lopez removable under

(a)(2)(A)(ii) and denied Lopez’s application
for asylum, withholding, and relief under CAT. The IJ
                      LOPEZ V. GARLAND                      9


denied Lopez’s asylum application as untimely, and rejected
his argument that impending deportation constituted
changed circumstances because doing so would allow him
to “benefit from committing criminal acts.” The IJ denied
Lopez’s application for withholding of removal because
Lopez failed to demonstrate a nexus between his fear of
future harm and any protected ground. The IJ addressed
each of Lopez’s claimed PSGs in turn. First, the IJ addressed
Lopez’s argument that he was persecuted in utero by his
father. The IJ concluded that his mother’s testimony of
domestic violence was credible, but that it did not constitute
persecution against Lopez because he was not born, and
Lopez did not demonstrate that his father had any intent to
harm him specifically. Next, the IJ rejected Lopez’s claim
based on paternal abandonment and his status as a recent
deportee because neither constitutes a PSG with “the
requisite social visibility.” Finally, the IJ rejected Lopez’s
claim based on his “potential anti-gang opinion” because
“returning Mexicans . . . at risk of being targeted . . . by
gangs” do not constitute a viable PSG. The IJ also denied
Lopez’s application for CAT relief because there was no
indication that anyone (including his father or uncle) had any
interest in torturing him, or that such torture would happen
“with the consent or acquiescence of a public official.”
    Lopez timely appealed to the BIA, and filed a brief
challenging both the legal basis for removal and the IJ’s
denial of Lopez’s application for asylum, withholding, and
CAT relief. On May 3, 2023, the BIA issued its decision
affirming the IJ’s decision on all counts and dismissing
Lopez’s appeal. Reviewing the removability issue de novo,
the BIA concluded that Lopez’s municipal convictions
involved CIMTs because the RMC should be construed in
accordance with the Nevada state larceny statute, which
10                    LOPEZ V. GARLAND


categorically defines larceny as a CIMT. See Harvey v.
State, 

 (Nev. 1962). The BIA disposed of
Lopez’s other arguments about removability by citing
applicable precedent decisions that it “decline[d] to revisit.”
See Matter of Adetiba, 

; Matter of Nolan,

.
    The BIA affirmed the IJ’s determination that Lopez did
not demonstrate circumstances warranting an exception to
the asylum filing deadline. The BIA also affirmed the IJ’s
denial of withholding and CAT relief on the merits, holding
that the IJ’s factual findings were supported by substantial
evidence. Lopez timely petitioned for review before this
Court, challenging both the basis for removability and denial
of his claim for asylum and withholding.
                              II
    The BIA correctly concluded that Lopez is removable
based on his municipal convictions for petty larceny. We
review Lopez’s three arguments contesting removability and
conclude that each is foreclosed by the proper interpretation
of the INA.
                              A
    We begin by considering Lopez’s argument that the
ordinance under which he was convicted does not
categorically define a CIMT because it does not specify
whether the deprivation of property is permanent or
temporary. We conclude that the BIA’s most recent
interpretation of the INA holding that a theft offense
constitutes a CIMT if it includes an intent to deprive “either
permanently or under circumstances where the owner’s
property rights are substantially eroded,” Matter of Diaz-
Lizarraga, 

 (BIA 2016)(emphasis
                          LOPEZ V. GARLAND                           11


added), is entitled to respect under Skidmore, 

.
Applying the BIA’s interpretation, we conclude that a
conviction under Reno’s petit larceny ordinance, RMC
§ 8.10.040, is categorically a CIMT.
    To determine whether an offense is a CIMT, we employ
the “categorical approach” which focuses on the elements of
the crime as stated in the relevant statute or ordinance rather
than the specific conduct of the individual. Pereida v.
Wilkinson, 

 (2021); Barbosa v. Barr, 

 (9th Cir. 2019). Under this approach, “we
compare the elements of the state offense”—or in this case,
municipal offense—“to the elements of the generic offense
defined by federal law.” Almanza-Arenas v. Lynch, 

 (2016) (en banc) (quoting Lopez–Valencia v.
Lynch, 

, 867–68 (9th Cir. 2015)). If the
elements of the state or municipal crime are “the same as or
narrower than” the elements of a generic CIMT, it is a
“categorical match” and “every conviction qualifies as [a
CIMT].” 

 If, by contrast, the state or local statute sweeps
more broadly and criminalizes conduct that falls out the
generic federal definition, a conviction does not qualify as a
CIMT. Maie, 7 F.4th at 849.1
    Prior to Loper Bright Enterprises, we would, under
Chevron, defer to the BIA’s specification of the “subset of
theft offenses” that constitute CIMTs “when articulated by
the BIA in a published opinion.” See Silva v. Garland, 

 (9th Cir. 2021). Now, our task is to evaluate
the statute independently under Skidmore, giving “due



1
 Neither the IJ nor the BIA relied on the modified categorical approach,
so that is not at issue in this petition for review.
12                         LOPEZ V. GARLAND


respect,” but not binding deference to the agency’s
interpretation. Loper Bright Enter., 144 S. Ct. at 2266–67.2
    As the Supreme Court explained in Skidmore, agency
decisions “while not controlling upon the courts by reason
of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may
properly resort for guidance.” 

. And “[t]he
weight of such a judgment in a particular case will depend
upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power
to persuade, if lacking power to control.” 

 Under
Skidmore, “[t]he deference given to an agency action may
range from great respect to near indifference, depending on
the degree of the agency’s care, its consistency, formality,
and relative expertness, and . . . the persuasiveness of the
agency’s position.” Bax v. Doctors Med. Ctr. of Modesto,
Inc., 

, 872 (9th Cir. 2022) (cleaned up). Thus,
we have upheld BIA interpretations under Skidmore when
the BIA “‘confront[ed] an issue germane to the eventual
resolution of the case’ and ‘resolve[d] it after reasoned
consideration.’” Alcarez-Rodriguez v. Garland, 

  Loper Bright Enterprises also instructed that “when a particular statute
delegates authority to an agency consistent with constitutional limits,
courts must respect the delegation, while ensuring that the agency acts
within it.” 144 S. Ct. at 2273. Here, we are mindful that the governing
statute provides that “[t]he Secretary of Homeland Security shall be
charged with the administration and enforcement of this chapter and . . .
determination and ruling by the Attorney General with respect to all
questions of law shall be controlling.” 

(a)(1). However,
for the purposes of this case, we need not—and do not–determine
whether this provision is a statute that expressly delegates interpretative
authority to the agency.
                      LOPEZ V. GARLAND                      13


754, 762 (9th Cir. 2023) (quoting Route v. Garland, 

 (9th Cir. 2021)).
     With that guidance in mind, we examine the BIA’s
precedent decision in Diaz-Lizarraga, in the context our
jurisprudence.       In Diaz-Lizarraga, which involved a
shoplifting offense, the BIA revised its prior interpretation
of the distinction between theft CIMTs and non-
turpitudinous temporary takings in light of the developments
in state criminal law. 26 I. & N. Dec. at 851–52. The BIA
explained that the purpose of the “traditional dichotomy of
permanent versus temporary takings,” was to separate
morally “reprehensible conduct” from that conduct that
reflects a less culpable mental state. Diaz-Lizarraga, 26 I.
& N. Dec. at 849–51. Surveying contemporary state law in
all fifty states, however, the BIA concluded that criminal law
had since evolved to “recognize that many temporary takings
are as culpable as permanent ones.” Id. at 851. As such, the
BIA decided to revise its interpretation to track the
“mainstream, contemporary understanding of theft”
reflected in the Model Penal Code. Id. at 852–54. Although
Diaz-Lizarraga             is        inconsistent         with
“earlier . . . pronouncements,” Skidmore, 

,
the BIA carefully explained why the revised interpretation is
nonetheless consistent with the agency’s longstanding
distinction—which we have also endorsed, see Galeana-
Mendoza v. Gonzales, 

 (9th Cir.
2006)—between reprehensible and non-reprehensible
criminal conduct, Diaz-Lizarraga, 26 I. & N. Dec. at 853–
54.
    The BIA’s decision in Diaz-Lizarraga is thorough and
well-reasoned. It is, as we shall explain, also consistent with
judicial precedent. We have previously stated that “the
generic definition of a crime involving moral turpitude is a
14                    LOPEZ V. GARLAND


crime involving conduct that (1) is base, vile, or depraved
and (2) violates accepted moral standards.” Navarro-Lopez
v. Gonzales, 

 (9th Cir. 2007) (en banc),
overruled on other grounds by United States v. Aguila-
Montes de Oca, 

 (9th Cir. 2011). “Our
understanding of the general meaning of this amorphous
phrase does not vary materially from that of the BIA,” which
has defined morally turpitudinous conduct as that which is
“inherently base, vile or depraved.” Galeana-Mendoza, 

 n.9 (quoting In re Danesh, 

 (BIA 1988)). For theft offenses, we have consistently
held that acts of theft, are “crime[s] of moral turpitude”
regardless of “whether the theft be petty or grand.” United
States v. Esparza-Ponce, 

, 1136–37 (9th Cir.
1999). However, like the BIA, we have also recognized that
convictions under certain “theft” statutes do not qualify as
CIMTs because they sweep more broadly to criminalize
“conduct involving [a] less culpable mens rea,” Maie, 7
F.4th at 851, such as “joyriding,” “receipt of stolen
property,” or “failure to make required disposition of funds,”
see Castillo-Cruz v. Holder, 

 (9th Cir.
2009); see also Maie, 7 F.4th at 849. Diaz-Lizarraga retains
this core distinction, expressly affirming that it is still
“appropriate to distinguish between substantial and de
minimis takings when evaluating whether theft offenses
involve moral turpitude.” 26 I. & N. at 851.
    The BIA’s revised interpretation is also consistent with
the generic definition of theft that has been adopted for other
purposes by the Supreme Court and the Model Penal Code.
For example, for the purpose of determining whether a theft
offense is an “aggravated felony,” 

(a)(2)(A)(iii), the Supreme Court has endorsed a
generic definition of theft as a “taking of property or an
                      LOPEZ V. GARLAND                     15


exercise of control over property without consent with the
criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent.” Gonzales v. Duenas-Alvarez, 

 (2007) (emphasis added) (quoting Penuliar v. Gonzales,

 (9th Cir. 2006)).
     Likewise, the Model Penal Code defines “theft by
unlawful taking” to require an intent to “withhold property
of another permanently or for so extended a period as to
appropriate a major portion of its economic value . . . or to
dispose of the property so as to make it unlikely that the
owner will recover it.” See Model Penal Code §§ 223.0
(defining “deprive”), 223.2 (defining “theft by unlawful
taking or disposition). “[A]n offense’s definition in the
Model Penal Code can serve as an aid in determining the
‘generic’ meaning of the offense.” United States v.
Rodriguez-Guzman, 

 (9th Cir. 2007)
(citing Taylor v. United States, 

, 598 n.8
(1990)).
    Given these considerations, we conclude that Diaz-
Lizarraga is entitled to “Skidmore deference.” Orellana v.
Barr, 

 (9th Cir. 2020). Exercising our
independent evaluation of the statute, we conclude that as
applied to theft offenses, the statutory phrase “crimes
involving moral turpitude,” 

(a)(2)(A)(ii),
encompasses offenses that require the government to prove
the defendant acted with an intent to permanently deprive an
owner’s property or substantially erode the owner’s property
rights. Offenses that criminalize less culpable conduct,
including temporary takings with the intent return to the
owner shortly thereafter, however, are still categorically
overbroad.
16                        LOPEZ V. GARLAND


    In reaching this conclusion, we are mindful that Diaz-
Lizarraga overruled long-standing BIA precedent that
created a sharp distinction between permanent and
temporary property deprivations and holding that an intent
to deprive permanently was a necessary element of a CIMT.
See In re R–, 

, 828 (B.I.A. 1947); see also
In re P–, 

, 887 (B.I.A. 1947); In re H–, 

, 865 (B.I.A. 1947); In re T–, 

, 42 (Op. Att'y Gen. 1944).
    We have historically endorsed this BIA’s prior
interpretation under Chevron. See, e.g. Castillo-Cruz, 

. Applying the prior BIA permanent deprivation
requirement, for example, we held that state theft statutes
that are broad enough to “penalize[] temporary takings” do
not categorically describe CIMTs. Lozano-Arredondo v.
Sessions, 

 (9th Cir. 2017) (analyzing

); see also Garcia-Martinez v.
Sessions, 

 (9th Cir. 2018) (analyzing 

). We have not yet, however, had
occasion to decide whether the BIA’s revised interpretation
in Diaz-Lizarraga reflects the correct interpretation of
“moral turpitude” in the context of theft offenses, nor
whether it was entitled to Chevron deference.3 In light of the

3
  In cases addressing whether a theft offense constitutes a CIMT since
2016, we have declined to decide whether Diaz-Lizarraga reflects a
lawful interpretation of the statute. See Maie, 7 F.4th at 847 (“[W]e do
not review whether Diaz-Lizarraga was correctly decided”); Silva, 

 (holding that offense was a CIMT “regardless” of whether
Diaz-Lizarraga applies); Lozano-Arredondo, 

 n.3
(holding that Idaho’s theft statute is overbroad even under the revised
Diaz-Lizarraga definition); Barbosa, 

 (“[T]he new
[Diaz-Lizarraga] standard does not apply retroactively to [this] case.”)
(emphasis added); Garcia-Martinez, 

 (“[T]he changed
rule should not be applied [retroactively] in this situation.”).
                     LOPEZ V. GARLAND                    17


BIA’s thoroughness, persuasive reasoning, and consistency
with the longstanding distinction between substantial and de
minimis takings, we conclude that the BIA’s 2016
interpretation is correct.
   With this revised definition of a CIMT in mind, we must
decide whether Lopez’s convictions meet that definition.
Garcia-Martinez, 

. The ordinance under
which Lopez was convicted provides that:

       It is unlawful for any person to take or carry
       away the property of another with the intent
       to deprive the owner of his property therein
       in any value less than $650.00 and for his
       conviction therefore, he shall be fined in an
       amount not more than $1,000.00 and/or be
       incarcerated not more than six months. In
       addition to any other penalty, the court shall
       order the person to pay restitution.

RMC § 8.10.040.
   The RMC does not define “deprive,” but instructs that
“[w]ords and phrases not specifically defined shall be
construed according to the context and approved usage.”
RMC § 1.01.030(4). To ascertain the commonly accepted
“usage” of the term, we consult both the Model Penal Code
and Nevada state law, both of which define “deprive” as a
“withholding” that is either permanent or for so long that a
substantial portion of its value to the owner is lost. See
Model Penal Code § 223.0; 

.
   Reading the RMC § 8.10.040 with these definitions of
“deprive” in mind, we conclude that the ordinance does not
encompass de minimis temporary takings. Under Diaz-
18                    LOPEZ V. GARLAND


Lizarraga, with which we agree, RMC § 8.10.040
categorically defines a CIMT. As such, Lopez’s convictions
under the ordinance provide a proper basis for removal under

(a)(2)(A)(ii) because RMC § 8.10.040
requires an intent to permanently deprive or substantially
erode an owner’s property interest.
                             B
    We next address Lopez’s argument that the INA’s
“pardon waiver” provision means he cannot be removed
based on a CIMT conviction for which there is no available
pardon. Interpreting the statute independently, we conclude
that the BIA correctly concluded that the possibility of
obtaining a pardon is not a prerequisite to removal under 

(a)(2).
    The pardon waiver is an exception to the statute
providing that a noncitizen can be removed for committing
a CIMT and provides that the statute “shall not apply in the
case of an alien with respect to a criminal conviction if the
alien subsequent to the criminal conviction has been granted
a full and unconditional pardon by the President of the
United States or by the Governor of any of the several
States.” 

(a)(2)(A)(vi). Lopez argues that his
convictions are not a proper basis for removal under section
1227(a)(2)(A)(ii) because he is unable to obtain a pardon for
a petty municipal offense. Because we have not previously
addressed the meaning of pardon waiver in this context, we
undertake the statutory analysis independently, giving
proper respect but not controlling deference to the views of
the BIA. Loper Bright Enter., 144 S. Ct. at 2269–70.
    To understand the applicability of the pardon waiver in
this context, a brief review of the statutory history is
instructive. Prior to 1917, there was no provision of the
                      LOPEZ V. GARLAND                    19


immigration statutes that provided a deportation exception
when the noncitizen had been pardoned. Jason A. Cade,
Deporting the Pardoned, 

, 366
(Dec. 2012). However, various administrative opinions at
the time supported a general understanding that a pardon
removed immigration consequences of a crime. 

 The
Immigration Act of 1917 provided for deportability for a
CIMT, but also provided that deportation for committing a
CIMT did not apply to noncitizens who had been pardoned.
39 Stat 874, 889–90. The Act also allowed for a presiding
judge to make a Judicial Recommendation Against
Deportation (“JRAD”).           

    This provision was
“consistently...interpreted as giving the sentencing judge
conclusive authority to decide whether a particular
conviction should be disregarded as a basis for deportation.”
Padilla v. Kentucky, 

 (2010) (quoting
Janvier v. United States, 

 (2nd Cir. 1986)).
Congress narrowed the JRAD provision in the 1952
Immigration and Nationality Act, and then completely
eliminated it in 1990. Id. at 363. The 1952 Act also changed
the pardon waiver language which referenced only a
“pardon” to require “a full and unconditional pardon” which
was granted by the President or a Governor. Cade, supra, at
371.
    The BIA has addressed the meaning of the pardon waiver
in two decisions, the second of which overruled the first. In
Matter of Cevallos, 

 (BIA 1968),
the BIA announced its own official interpretation that “[t]he
conviction of an offense for which there is no pardoning
authority . . . is not a conviction of a ‘crime’ within the
meaning of [

(a)(2)].” As in this case,
Cevallos dealt with a municipal conviction for petty larceny.

 at 750–51. Because “one convicted of a violation of a
20                     LOPEZ V. GARLAND


municipal ordinance” in Florida could not “apply for and
have an application for pardon considered,” the BIA
concluded a noncitizen could not be deported on the basis of
those convictions. Id. at 751.
    Twenty years later, the BIA overruled Cevallos in Matter
of Nolan, 

 (BIA 1988). In Nolan, the
respondent challenged his deportation based on an attempted
burglary conviction for which he received an “automatic
pardon” as a first-time felony offender under the Louisiana
Constitution. 

 at 540–41; see La. Const. art. IV, § 5 (E)(1).
The BIA concluded that, because the pardon was automatic,
it was not “full and unconditional” as required by the statute.
Matter of Nolan, 19 I. & N. Dec at 942-43. Further, the BIA
held the fact that the respondent could not obtain a second
pardon that would conform to the section 1227(a)(2)(A)(vi)
was irrelevant. Id. at 545. “In our view, the availability or
unavailability of a pardon under state or federal law, or the
existence or nonexistence of a qualifying pardoning
authority, has no bearing on . . . whether an offense
constitutes a ‘crime’ for the purpose of deportability[.]” Id.
(emphasis added). The BIA explained its decision to
abandon Cevallos briefly, emphasizing two points. First,
Cevallos had not subsequently been relied on by the BIA or
“any court.” Id. at 544. Second, Cevallos might perversely
protect aggravated offenders whom a state intentionally
“preclude[s]” from obtaining a pardon from deportation. Id.
In the intervening thirty-six years, no federal court of appeals
has addressed whether Nolan’s interpretation is reasonable
with respect to pardon availability.
    Against this background, and pursuant to Loper Bright
Enterprises, 144 S. Ct. at 2273, we proceed to construe the
statute independently. We begin, as always, with the plain
language of the statute. Cheneau v. Garland, 

,
                      LOPEZ V. GARLAND                      21


920 (9th Cir. 2021) (en banc). If the plain language is clear,
our inquiry is complete. United States v. 475 Martin Lane,

 (9th Cir. 2008).
    Here, the plain language of the statute provides only that
relief is available when the petitioner “has been granted a
full and unconditional pardon by the President of the United
States or by the Governor of any of the several States.” The
statute does not indicate that a pardon must be available. If
Congress had intended the pardon waiver to include crimes
for which no pardon was available, it could easily have said
so. To add “or is otherwise unavailable” to the phrase “has
been granted” would be to insert a different concept into the
statute. As the Supreme Court observed long ago, “[w]hen
the language is plain, we have no right to insert words and
phrases, so as to incorporate in the statute a new and distinct
provision.” United States v. Temple, 

 (1881);
see United States v. Johnson, 

 (“When
Congress provides exceptions in a statute, it does not follow
that courts have authority to create others. The proper
inference . . . that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth.”)
    Although there are no controlling precedential cases
squarely on point, courts have strictly construed the pardon
waiver. The Supreme Court rejected the application of the
provision to a pardon conditioned on good behavior, even
though the pardon had been issued before the 1952
amendments altering the language of the pardon waiver.
Lehman v. United States, 

 (1957).
Although our sister circuits have not directly addressed the
issue in this case, they have rejected attempts to expand the
pardon waiver by implication.              For example, in
Wojciechowicz v. Garland, 

 (7th Cir.
22                     LOPEZ V. GARLAND


2023), the Seventh Circuit declined to expand the pardon
waiver to include determinations of inadmissibility, as well
as removals. In Tetteh v. Garland, 

 (4th
Cir. 2021), the Fourth Circuit declined to expand the pardon
waiver beyond the enumerated grounds for removal. In
Aristy-Rosa v. Attorney General, 

, 115 (3d Cir.
2021), the Third Circuit rejected an argument that Congress
implied a pardon waiver for controlled substance offenses.
In each of these cases, our sister Circuits founded their
decisions on the plain text of the statute.
    Here, construing the pardon waiver to prohibit
deportation in circumstances where no pardon had been
issued would fly in the face of the plain statutory terms, and
would preclude removability for large categories of crimes
for which the statute provided for removals. Given the plain
words of the statute, we not only agree with the BIA’s
application of Matter of Nolan to this case and afford it
Skidmore deference, but also independently conclude, based
on our own statutory analysis, that the pardon waiver does
not require availability of a pardon to find a conviction to be
a proper basis for removal.
    Lopez relies on Matter of Cevallos, which the BIA has
overruled, and two court cases: Gubbels v. Hoy, 

 (9th Cir. 1958) and Costello v. INS, 

 (1964).
Neither case is on point. Gubbels involved the availability
of a JRAD in court martial proceedings. 

. In
Gubbels, we held that a noncitizen who was convicted by
court-martial could not be deported based on those crimes
because there was no way he could obtain a JRAD from the
prosecuting entity. 

. That case did not involve
the pardon waiver at issue here. In Costello v. INS, the
Supreme Court considered whether crimes committed by a
naturalized citizen could later be used to deport the petitioner
                         LOPEZ V. GARLAND                          23


after he was denaturalized. 

. The petitioner’s
argument was that he could be deported only for crimes
committed while he was a noncitizen, and involved a
semantic interpretation of a phrase not at issue in this case.

. The case did not involve the pardon waiver or
the construction of the statutory language we consider here.
    In sum, we conclude that the plain language of the
pardon waiver precludes Lopez’s interpretation. The
potential lack of availability of a pardon for a particular
conviction does not render the conviction an improper basis
for removal.4
                                 C
    Finally, we consider Lopez’s argument that he cannot be
deported based on his four larceny convictions because they
arose from a “single scheme” of misconduct.
    Pursuant to 

(a)(2)(A)(ii), a non-citizen
may be removed if he “at any time after admission is
convicted of two or more crimes involving moral turpitude,
not arising out of a single scheme of criminal
misconduct . . . .” (emphasis added). Interpreting the phrase
“single scheme,” the BIA held that:

        [W]hen an alien has performed an act, which,
        in and of itself, constitutes a complete,
        individual, and distinct crime, he is
        deportable when he again commits such an


4
 Given our resolution of the issue, we need not —and do not—determine
whether a pardon is actually available for Lopez’s municipal
convictions. We simply assume, arguendo, that no pardon is available
for the crimes at issue. The Nevada Supreme Court has not decided that
question, and we express no opinion on that issue.
24                   LOPEZ V. GARLAND


       act, even though one may closely follow the
       other, be similar in character, and even be
       part of an overall plan of criminal
       misconduct.

Matter of Adetiba, 

 (BIA 1992).
    In Szonyi v. Whitaker, 

 (9th Cir.
2019), we endorsed Adetiba as a reasonable interpretation of
the statute. Although we recognized in Szonyi that it was
somewhat in tension with prior Ninth Circuit authority,
including Wood v. Hoy, 

 (9th Cir. 1959), Szonyi
remains precedential authority which binds us. And,
although Szonyi relied on Chevron, the Supreme Court has
instructed that Loper Bright Enterprises does not “call into
question prior cases that relied on the Chevron framework.”
144 S. Ct. at 2273. And unlike the CIMT interpretation
discussed in section II.a, the BIA has not promulgated a new
interpretation of the statute to prompt us to reconsider our
precedent.
    Lopez argues that the petty larcenies that were
committed on four separate occasions were part of a single
crime spree and therefore exempt. This argument is
precluded by Szonyi because Lopez was convicted of four
“complete, individual, and distinct” criminal municipal
charges of petit larceny notwithstanding the fact that they
followed in quick succession and in response to similar
material circumstances. Szonyi, 915 F.3d at 1232–33
(quoting Adetiba, 20 I. &. N. Dec. at 509). Pursuant to
Szonyi, these crimes did not form “a single scheme of
criminal misconduct” that would exempt him from
deportation under 

(a)(2)(A)(ii).
                      LOPEZ V. GARLAND                      25


    Lopez urges us to return to our pre-Szonyi jurisprudence.
However, as a three-judge panel, we lack the authority to
overrule existing circuit precedent absent “intervening
higher authority” that is “clearly irreconcilable with” Szonyi.
Miller v. Gammie, 

 (9th Cir. 2003)
(en banc). There is no such authority, so Szonyi binds us,
and forecloses Lopez’s argument.
                              III
    Having concluded that the BIA did not err in finding
Lopez removable based on his municipal convictions, we
turn to Lopez’s application for asylum and withholding of
removal.
                              A
    Although we lack jurisdiction to review the BIA’s
timeliness determination under 

(a)(2)(B), we
have jurisdiction to review the BIA’s conclusion regarding
the availability of equitable tolling due to “changed” or
“extraordinary circumstances,” where the facts are
undisputed. Alquijay v. Garland, 

 (9th
Cir. 2022); Ramadan v. Gonzales, 

, 649–50 (9th
Cir. 2007) (per curiam). The BIA’s determination of
whether undisputed facts constitute “changed” or
“extraordinary circumstances” is a mixed question of fact
and law, which we review de novo. Ramadan, 

. We conclude that the BIA did not err in denying
Lopez’s asylum application as untimely.
    Lopez concedes that his application was filed well after
the one-year deadline, but offers two arguments for why he
should have been granted an exception due to “changed” or
“extraordinary” circumstances. U.S.C. § 1158(a)(2)(D).
First, Lopez argues that the consequences of his immigration
26                    LOPEZ V. GARLAND


status did not become salient until he received the NTA
following his convictions. But neither youth nor “ignorance
of the legal requirement[s] [for asylum]” constitute
extraordinary circumstances. Alquijay, 

.
    Second, Lopez argues that the BIA failed to “take
seriously” his argument that he is entitled to an exception
based on disability. Lopez raised this argument for the first
time on appeal, citing both a learning disability that was
diagnosed during childhood and mental illness that was
diagnosed while he was in immigration detention. The only
evidence proffered to the BIA was for the former and “pre-
date[d] the [IJ’s] decision by several years,” which the BIA
deemed not “material new evidence.”              Under these
circumstances, the BIA “may apply a procedural default rule
to arguments raised for the first time on appeal.” Honcharov
v. Barr, 

 (9th Cir. 2019) (per curiam).
Without evidence of Lopez’s recent diagnoses in the record,
there is no undisputed factual basis to conclude that his
mental illness constitutes “extraordinary circumstances.”
See Toj-Culpatan v. Holder, 

 (9th Cir.
2010) (assessing whether the record demonstrates
“extraordinary circumstances”).
                             B
    Substantial evidence supports the agency’s denial of
Lopez’s application for withholding of removal based its
conclusion that he did not demonstrate likelihood of
persecution based on family membership.
    As to past persecution, the agency concluded that the
harm Lopez suffered “in utero” did not constitute past
persecution because it was not motivated by animosity on
account of his familial relationship with his mother. The
record demonstrates that Yadira suffered serious domestic
                     LOPEZ V. GARLAND                    27


abuse during her pregnancy that impacted Lopez physically,
emotionally, and cognitively. The record does not, however,
compel the conclusion that the abuse was directed
intentionally at Lopez, who was not yet born at the time. In
the agency’s view, Lopez was an incidental victim of the
abuse against his mother—not the direct target. The record
does not compel reversal of this conclusion.
    The record also supports the agency’s conclusion that
Lopez will not face future persecution based on his identity
as Yadira’s son. Lopez did not provide any evidence that
Lopez’s father or paternal relatives have any interest in
harming him as an adult. To the contrary, the record shows
that Rodrigo has been absent from his children’s lives.
Accordingly, the record does not compel the conclusion that
Lopez will face persecution at the hands of his father if he
his returns to Mexico.
                            IV
    In sum, Lopez’s larceny convictions constitute CIMTs
that render him properly removable. His asylum application
was untimely, and no circumstances permit excusing the
untimeliness. Substantial evidence supports the agency’s
denial of withholding of removal. We deny the petition for
review. Lopez’s motion to stay removal is denied as moot.
   PETITION DENIED.
28                    LOPEZ V. GARLAND


SANCHEZ, Circuit Judge, concurring in part and dissenting
in part:

    Petitioner Christian Lopez, a native and citizen of
Mexico, was convicted of four counts of petit larceny under
section 8.10.040 of the Reno Municipal Code (RMC). The
majority denies Lopez’s petition for review, finding that his
petit larceny convictions categorically qualify as crimes
involving moral turpitude (CIMT). In reaching this
conclusion, the majority first determines that the BIA’s
decision in Matter of Diaz-Lizarraga, 

(BIA 2016), is entitled to deference under Skidmore v. Swift
& Co., 

 (1944), and was correctly decided.
Next, the majority concludes that Lopez’s petit larceny
convictions are CIMTs because the “intent to deprive” under
RMC § 8.10.040 may be interpreted according to
“commonly accepted usage” that implicitly incorporates the
Model Penal Code and Nevada state law.
    I agree with the majority’s application of Loper Bright
Enterprises v. Raimondo, 

, 2262 (2024),
which requires courts to “exercise independent judgment in
determining” the meaning of statutory terms such as crimes
of moral turpitude, but allows us to afford Skidmore
deference to thorough and well-reasoned agency
interpretations. However, even if Diaz-Lizarraga correctly
determined that theft offenses involving the intent to deprive
“either permanently or under circumstances where the
owner’s property rights are substantially eroded” are CIMTs,
see 

, Lopez’s petty larceny convictions
are not a categorical match.
   Reno defines petty larceny as taking or carrying away the
property of another valued under $650 “with the intent to
deprive the owner of his property therein,” RMC § 8.10.040.
                       LOPEZ V. GARLAND                      29


The ordinance, however, does not define what an “intent to
deprive” means. By its plain terms, the ordinance is not
limited to permanent deprivations of property or to
temporary deprivations that “substantially erode” the value
of the owner’s property. The majority errs by reaching for
an interpretation not found in the text of the ordinance or any
decision by a Nevada state court. In filling in this gap, the
majority ignores that we must construe statutory ambiguities
in favor of the person facing removal. See Moncrieffe v.
Holder, 

 (2013). Because Lopez’s
convictions are not categorically crimes involving moral
turpitude, I would grant the petition and remand.
                               I.
    I begin by narrowing my disagreement with the majority.
I agree that the BIA did not err in denying Lopez’s petition
for asylum as untimely and that substantial evidence
supports the agency’s denial of his claim for withholding of
removal. I agree in the majority’s analysis of the “pardon
waiver,” and that Lopez’s four larceny offenses do not
constitute a single scheme under applicable precedents.
Finally, I join in the majority’s application of Loper Bright
and its determination that Diaz-Lizarraga is entitled to
Skidmore deference. As the majority explains, in exercising
our independent review of statutes, we may “seek aid from
the interpretations of those responsible for implementing
particular statutes” under Skidmore. Loper Bright Enter.,
144 S. Ct. at 2262. However, the weight we afford the
agency’s judgment will “depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” Id. at 2259 (quoting Skidmore, 

). While Diaz-Lizarraga is entitled to Skidmore
30                     LOPEZ V. GARLAND


deference, the majority errs in concluding that Lopez’s petit
larceny convictions categorically constituted crimes of
moral turpitude under the BIA’s revised theft definition.
                              II.
    We employ a two-step framework for determining
whether an offense is categorically a crime of moral
turpitude. Rivera v. Lynch, 

 (9th Cir.
2016). First, we identify the elements of the statute.
Coquico v. Lynch, 

 (9th Cir. 2015).
Second, we “compare the elements of the statute of
conviction to the generic definition of a [CIMT] and decide
whether the conviction meets that definition.” Betansos v.
Barr, 

 (9th Cir. 2019) (internal
quotation marks omitted). A conviction constitutes a CIMT
only “if the full range of conduct encompassed by the statute,
including the least egregious conduct prosecuted under the
statute, is a crime of moral turpitude.” Barragan-Lopez v.
Mukasey, 

 (9th Cir. 2007) (internal
quotation marks omitted). We may only find a categorical
match when there is no “‘realistic probability’ that the statute
of conviction would be applied to non-turpitudinous
conduct.” Fugow v. Barr, 

 (9th Cir. 2019)
(quoting Gonzales v. Duenas-Alvarez, 

(2007)).
    “Although the immigration statutes do not specifically
define offenses constituting crimes involving moral
turpitude, a crime involving moral turpitude is generally a
crime that (1) is vile, base, or depraved and (2) violates
accepted moral standards.” Hernandez-Gonzalez v. Holder,

 (9th Cir. 2015) (internal quotation marks
omitted). “To be considered a crime of moral turpitude, a
crime other than fraud must be more than serious; it must
                       LOPEZ V. GARLAND                       31


offend the most fundamental moral values of society, or as
some would say, shock the public conscience.” 

 (cleaned
up). We have recognized that “at some level all illegal acts
violate societal norms and values—that is why the acts are
illegal. However, ‘crimes involving moral turpitude’ is a
limited category of crimes and does not extend to cover all
conduct that violates the law.” Navarro-Lopez v. Gonzales,

, 1073 n.9 (9th Cir. 2007), overruled in part by
United States v. Aguila-Montes de Oca, 

 (9th
Cir. 2011).
    Until recently, the BIA had long determined that “a theft
offense is not categorically a crime of moral turpitude if the
statute of conviction is broad enough to criminalize a taking
with intent to deprive the owner of his property only
temporarily.” Almanza-Arenas v. Lynch, 

(9th Cir. 2016) (en banc). For years, we agreed that the
distinction between permanent and temporary deprivations
of property was appropriate because it reflected differing
degrees of culpability. Id.; see Castillo-Cruz v. Holder, 

 (9th Cir. 2009) (“A recipient who
intends. . . to deprive its rightful owner of its possession only
temporarily would not seem to have committed an act that
may be termed morally turpitudinous.”).
    In 2016, in a “rather abrupt change in the law,” the BIA
broadened the definition of theft offenses that qualify as
CIMTs in Diaz-Lizarraga. See Garcia-Martinez v. Sessions,

 (9th Cir. 2018). The BIA concluded in
its precedential decision that “a theft offense is a crime
involving moral turpitude if it involves an intent to deprive
the owner of his property either permanently or under
circumstances where the owner’s property rights are
substantially eroded.” Diaz-Lizarraga, 

. This revised interpretation borrows from section
32                      LOPEZ V. GARLAND


223.0(1) of the Model Penal Code (defining the term
“deprive”) and reflects developments in the law of a majority
of states. See 

 at 851–52. Notably, however, the BIA
observed that “[w]e continue to believe that it is appropriate
to distinguish between substantial and de minimis takings
when evaluating whether theft offenses involve moral
turpitude.” 

. Thus, where a statute “does not
require the government to prove the defendant intended to
permanently deprive or substantially erode the owner’s
property rights,” it is not a crime involving moral turpitude.
See Maie v. Garland, 

, 849–851 (9th Cir. 2021);
see also Diaz-Lizarraga, 26 I. & N. Dec. at 853–54; Castillo-
Cruz, 

.
    RMC § 8.10.040 does not define the scope of conduct
criminalized under the ordinance. Petty larceny is defined
as follows:

        It is unlawful for any person to take or carry
        away the property of another with the intent
        to deprive the owner of his property therein,
        in any value less than $650.00 and for his
        conviction therefore, he shall be fined in an
        amount not more than $1,000.00 and/or be
        incarcerated not more than six months. In
        addition to any other penalty, the court shall
        order the person to pay restitution.

RMC § 8.10.040. 1 The ordinance does not provide a
definition for the term “deprive.” See RMC § 1.01.020
(definitions). Nor has any Nevada state court offered


1
  In 2020, after Lopez was convicted, RMC § 8.10.040 was updated to
include property up to $1,200. See Ord. No. 6569, § 1, 8-12-20.
                      LOPEZ V. GARLAND                      33


guidance as to the scope of RMC § 8.10.040. The only state
court decision to reference the ordinance involved a
defendant convicted for shoplifting a candy bar and cough
drops from a store. See In re Coughlin, 

, 

 (2012). Thus, the RMC’s “greater breadth is
evident from its text.” See United States v. Bautista, 

 (9th Cir. 2021) (internal quotation marks omitted).
In the absence of any limiting language, the ordinance may
well reach temporary de minimus takings, crimes that do not
involve morally turpitudinous conduct. See Diaz-Lizarraga,

. Indeed, the government concedes
that standing alone, the text of RMC § 8.10.040 could not
constitute a CIMT.
    To compensate for this gap, the majority relies on the
instruction in the RMC that “[w]ords and phrases not
specifically defined shall be construed according to the
context and approved usage of the language.” RMC
§ 1.01.030(4). The majority then concludes that common
usage of the term “deprive” permits us to consult the Model
Penal Code and Nevada state law, both of which define
“deprive” as “withhold[ing]” a property interest either
permanently or for so long that a substantial portion of its
value is lost. See Model Penal Code 223.0(1); NRS
§ 205.0824.
    The majority’s approach is out of step with the Supreme
Court’s admonition that we must construe ambiguities—
such as the absence of explicit statutory reference or
consistent state court interpretation—in favor of the
noncitizen. See Moncrieffe, 

. In Moncrieffe,
the Supreme Court held that possession of marijuana with
intent to distribute under state law was not a categorical
aggravated felony barring a grant of discretionary relief from
removal. 

. Under the categorical approach, which
34                   LOPEZ V. GARLAND


requires starting from the presumption “that the conviction
rested upon [nothing] more than the least of th[e] acts
criminalized,” we must “err on the side of
underinclusiveness because ambiguity in criminal statutes
referenced by the INA must be construed in the noncitizen’s
favor.” 

 at 190–91, 205. The Court held that the
petitioner’s conviction was not a CIMT because it could be
categorized either as a felony or a misdemeanor, and
“[a]mbiguity on this point means that the conviction did not
‘necessarily’ involve facts that correspond to an offense
punishable” as a felony under the Controlled Substances
Act. 

 at 194–95.
    Here, the government concedes the text of RMC
§ 8.10.040 is ambiguous as to the breadth of theft it
criminalizes. However, in drawing a series of inferences to
find a categorical match, the majority fails to construe
ambiguities in favor of the non-citizen as required under
Moncrieffe. Id. at 205.
    Compounding its mistake, the majority does not point to
any evidence suggesting that the RMC intended to
incorporate the definition of “deprive” from Nevada state
law or the Model Penal Code. As a threshold matter, the
RMC forecloses any legal reliance on the NRS, stating that
state law references contained therein “are not intended to
have any legal effect but are merely intended to assist the
user of [the RMC].” RMC § 1.01.060. Thus, the RMC’s
cross-reference to NRS § 204.240 cannot be construed as an
“approved usage” to supply meaning to the RMC’s
undefined terms.
   Indeed, the Nevada legislature contemplates that state
and local authorities can criminalize conduct in different
ways. See NRS §§ 266.105, 268.0035(1)(c) (vesting cities
                      LOPEZ V. GARLAND                      35


with “all . . . powers necessary or proper to address matters
of local concern for the effective operation of city
government[.]”). Reno routinely criminalizes conduct that
state law does not. See, e.g., RMC § 8.04.020 (criminalizing
inflating “toy balloons with hydrogen”); RMC § 8.04.030
(criminalizing “marathon dancing or marathon walking
contest” in the city). Reno also criminalizes other petty theft
offenses that sweep more broadly than crimes of moral
turpitude as defined by Diaz-Lizarraga. For example, RMC
§§ 8.10.050(d)(3)–(4) criminalizes the unauthorized
removal of a shopping cart with the intent to deprive the
owner either “temporarily or permanently.” There is no
basis to infer that RMC § 8.10.040 is limited to an intent to
permanently deprive or substantially erode an owner’s
property rights when other municipal petty theft offenses do
not impose this constraint.
     Nor is the majority’s reliance on what constitutes a
generic theft offense under the Model Penal Code
appropriate. In Diaz-Lizarraga, the BIA found that
shoplifting under Arizona state law was a CIMT even though
it did not specify the duration of “intent to deprive” in part
because Arizona had “adopted the Model Penal Code’s
definition of the term ‘deprive’ more or less verbatim.” 26 I.
& N. Dec. at 847–48, 851–52. Here, neither party has
proffered any authority for the proposition that Reno follows
the Model Penal Code. See Maie, 7 F.4th at 851.
    In short, there is a “realistic probability” that one could
be convicted under RMC § 8.10.040 for both a categorical
deprivation and conduct that is not morally turpitudinous.
See Moncrieffe, 

; see also Rivera, 

. Without evidence to the contrary, we may not fill
in the gaps with our own inferences about what conduct is
criminalized under RMC § 8.10.040. See Leocal v. Ashcroft,
36                    LOPEZ V. GARLAND

, 11 n.8 (2004) (“Even if [

, defining
a crime of violence under the INA] lacked clarity on this
point, we would be constrained to interpret any ambiguity in
the statute in petitioner’s favor.”). Because the government
has not demonstrated by statutory text or state court
precedent that RMC § 8.10.040 categorically describes a
crime of moral turpitude, I would grant Lopez’s petition.