BIA: Interprets “single scheme of criminal misconduct” language in multiple CIMT ground of removal

By University of Denver Sturm College of Law

Jan 26, 2012

The BIA refined its interpretation of the “single scheme of criminal misconduct” exception to the multiple crimes involving moral turpitude ground of removal. Matter of Islam, 25 I&N Dec. 637 (BIA 2011) (Pauley, Malphrus, and Mullane, Board Members). Board Member Pauley wrote the panel’s opinion.

This case involved an LPR who was convicted of criminal possession of stolen property (involving a credit or debit card), N.Y. Penal § 165.45(2), and, four months later, forgery in the third degree, N.Y. Penal § 170.05. DHS charged him as removal pursuant to INA § 237(a)(2)(A)(ii) for having been convicted “of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” These convictions arose, according to Islam’s statements, from his use of two credit and debit cards at four locations, including different retail outlets, in adjoining counties where he made five purchases over the course of a few hours. Matter of Islam, 25 I&N Dec. at 638.

The BIA noted that forgery and possession of stolen property “have long been considered” CIMTs. Matter of Islam, 25 I&N Dec. at 638. “Therefore the sole issue on appeal is whether the respondent’s convictions arose out of a ‘single scheme of criminal misconduct.’” Matter of Islam, 25 I&N Dec. at 639.

The BIA relied quite heavily on its earlier explanation in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), of the single scheme clause:

“In Matter of Adetiba, 20 I&N Dec. at 512, we concluded that separatecrimes involving the unauthorized use of four different credit cards obtainedin four different fictitious names, which resulted in harm to different victims,did not arise out of a ‘single scheme of criminal misconduct,’ even if theywere committed pursuant to an elaborate plan and the same modus operandiwas used for each offense…. Reviewing our past precedents, we found the statutory language to mean that when 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 act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. Thus, we determined 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 constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 639 (internal quotations and citations omitted).

An example of a single scheme, it added, might be “where a person breaks into a store with the intent to commit larceny and, in connection with that criminal act, also commits an assault with a deadly weapon.” Matter of Islam, 25 I&N Dec. at 640.

Because the single scheme clause is “a quintessentially ambiguous term,” Matter of Islam, 25 I&N Dec. at 641, and “neither the language nor the legislative history of the statute provides any insight into what Congress meant by that phrase,” Matter of Islam, 25 I&N Dec. at 639, the Board explained federal courts owe deference to its interpretation. Matter of Islam, 25 I&N Dec. at 640-41 (discussing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)). This is only important in federal circuits that had not adopted the Matter of Adetiba approach—for example, the Second Circuit which adopted a more expansive approach in Nason v. INS, 394 F.2d 223 (2d Cir. 1968), and which the respondent had urged the Board to follow. Matter of Islam, 25 I&N Dec. at 639.

The BIA concluded by noting its agreement with the IJ’s “determination that under the analysis set forth in Matter of Adetiba, the DHS has established by clear and convincing evidence that the respondent’s convictions for crimes involving moral turpitude did not arise out of a single scheme of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 641. The respondent, accordingly, is removable for having been convicted of multiple CIMTs. Matter of Islam, 25 I&N Dec. at 642.