The Board of Immigration Appeals (BIA or Board) held in Matter of Islam, 25 I. & N. Dec. 637 (B.I.A. Nov. 18, 2011), that (1) in determining whether an alien’s convictions for two or more crimes involving moral turpitude (CIMTs) arose out of a “single scheme of criminal misconduct” within the meaning of INA § 237(a)(2)(A)(ii) [8 USCA § 1227(a)(2)(A)(ii)] (2006), the Board will uniformly apply its interpretation of that phrase in all circuits, and (2) where the respondent was convicted in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to get items of value from several retail outlets on five separate occasions over the course of a day, his crimes did not arise out of a “single scheme of criminal misconduct.”
The respondent, a native and citizen of Bangladesh, was admitted to the U.S. in 1998. In 2008, he was convicted in the Columbia County Court, New York, of fourth degree criminal possession of stolen property, namely a credit or debit card, in violation of § 165.45(2) of the New York Penal Law, for which he was sentenced to six months’ incarceration with five years of probation and was required to pay restitution and fees. He was also convicted in 2009 in Greene County, New York, of forgery in the third degree in violation of § 170.05 of the New York Penal Law, for which he was fined and sentenced to three years of probation to run concurrent with his earlier sentence. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he is removable based on his convictions for CIMTs.
In his immigration court proceedings the respondent argued that he was not removable because his convictions arose out of a single scheme of criminal misconduct. He also asserted his eligibility for cancellation of removal under INA § 240A(a) [8 USCA § 1229b(a)] (2006). In the proceedings, the respondent admitted that on March 22, 2008, he used or attempted to use two different credit and debit cards belonging to another person on five separate occasions to buy goods at four different locations in two adjoining counties over the span of a few hours. The immigration judge (IJ) found that the circumstances of the crimes indicated that the respondent “had time to dissociate himself and reflect on what he had done” between the commission of each offense. Consequently, the IJ found that the respondent was convicted of two or more CIMTs that did not arise out of a single scheme of criminal misconduct and he was therefore removable under INA § 237(a)(2)(A)(ii). The IJ also found that he had failed to properly complete his application for relief and ordered him removed. The respondent appealed.
The respondent did not deny that forgery and possession of stolen property are CIMTs so the sole issue on appeal was whether the respondent’s CIMT convictions arose out of a single scheme of criminal misconduct. In resolving this issue, the Board found it proper to apply the interpretation of the “single scheme” language that it adopted in Matter of Adetiba, 20 I. & N. Dec. 506, 1992 WL 195812 (B.I.A. 1992), rather than the “more expansive interpretation” expressed by the U.S. Court of Appeals for the Second Circuit (the Circuit in which this case arose) in Nason v. Immigration and Naturalization Service, 394 F.2d 223 (2d Cir. 1968), a pre-Chevron case.
In Matter of Adetiba, the Board noted (as did the Second Circuit in Nason that neither the language, nor the legislative history of the statute, provides any insight into what Congress meant by “a single scheme of criminal misconduct.” The Board concluded that when an alien has performed an act, which, in and of itself, is a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. The Board found that the single scheme exception refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime is a lesser offense of another or where two crimes flow from and are the natural result of a single act of criminal misconduct, such as where someone possesses and utters a counterfeit bill or where someone breaks into a store with the intent to commit larceny and, in connection with that crime, also commits an assault with a deadly weapon. Thus the Board found that separate crimes involving the unauthorized use of four different credit cards obtained in four different fictitious names, which resulted in harm to different victims, did not arise out of a “single scheme of criminal misconduct,” even if they were committed by an elaborate plan and the same modus operandi was used for each offense. In reaching this conclusion, the Board relied on the U.S. Court of Appeals for the First Circuit decision in Pacheco v. Immigration and Naturalization Service, 546 F.2d 448 (1st Cir. 1976), for the proposition that a single scheme must take place at one time, meaning that there must be no real interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done.
The respondent in the present case contended that the Board should apply the Second Circuit’s decision in Nason, which, he asserted, placed some emphasis on the nine-month interval between the commission of the offenses. By contrast, the respondent argued, he committed his crimes within a brief period on a single day and did not have time to reflect on his first crime or disassociate himself from the criminal enterprise before completing his other crimes. The Board, however, rejected this argument, finding that it should follow the approach outlined in Matter of Adetiba. The Board noted that the Second Circuit, in Michel v. I.N.S., 206 F.3d 253 (2d Cir. 2000), found it unnecessary to decide whether Chevron deference was due to Matter of Adetiba because, on the facts, the alien’s crimes were not committed as part of a single scheme under either standard, but that six other circuits have determined that Matter of Adetiba warrants Chevron deference. [FN9] The Board also pointed out that the Supreme Court in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), held that Chevron deference must be paid to an agency’s interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction was the better one, so long as the agency’s interpretation is reasonable. The Board found the phrase “single scheme of criminal misconduct” to be “a quintessentially ambiguous term,” and concluded that its analysis in Matter of Adetiba is controlling and should be applied uniformly in all circuits.
Turning to the present case, the Board first noted that the question whether multiple crimes are part of a “single scheme of criminal misconduct” is not subject to the categorical approach but instead requires a “circumstance-specific” inquiry in which all relevant evidence may be consulted. The Board concluded, in agreement with the IJ, that DHS had established by clear and convincing evidence that the respondent’s convictions did not arise out of a single scheme of criminal misconduct. Like the IJ, the Board rejected the respondent’s assertion that because his crimes took place during a brief period, he did not have time to reflect on his first offense or disassociate himself from the criminal enterprise before completing his additional crimes, finding, as it did in Matter of Adetiba, that:
the respondent committed separate and distinct crimes each time he used a different credit card and obtained through its unauthorized use things of … value … The use of additional cards did not flow from and was not a natural consequence of a single act of criminal misconduct. After use of any one credit card, the [respondent] had the opportunity to disassociate himself from his enterprise and reflect on what he had done.
The Board further stated that the respondent traveled to different venues to get more items of value with the stolen credit cards supported the determination that the respondent’s crimes, while occurring on the same day, did not arise from a single scheme of criminal misconduct.
Finally, the Board affirmed the IJ’s determination that the respondent abandoned his application for cancellation of removal when he failed to timely file a complete application and rejected his request that he be released from custody pending further proceedings since the Board “do[es] not review custody determinations in the context of an appeal from an order of removal.”
