Interim Decision #3177

Interim Decision #3177

MATTER OF ADETIBA

In Deportation Proceedings

A-29571508

Decided by Board May 22, 1992

(1) The Board of Immigration Appeals follows its historical approach as to what

constitutes a "single scheme of criminal misconduct" within the meaning of section

241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii)

(Supp. II 1990), by interpreting 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, be 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; such an approach recognizes that the statutory language

was meant to distinguish cases where there are separate and distinct crimes, but they

are 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. Pacheco v Iatg, 546 F. 2d

448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977), followed.

(2) Outside their respective circuits, the Board will not follow the more expansive

interpretation of the statutory language in question as set forth in Gonzalez-Sandoval

v. INS, 910 F.2d 614 (9th Cir. 1990); Nason v. INS, 394 F.2d 223 (2d Cir.), cert.

denied, 393 U.S. 830 (1968); and Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

(3) The separate crimes of which the respondent was convicted, namely using credit

cards in the names of different people, with intent to defraud, and from which he

obtained things of value for each card during a period of time, did not arise out of a

"single scheme of criminal misconduct" within the meaning of section 241(a)(2)(A)(ii)

of the Act, notwithstanding that the crimes were committed pursuant to an elaborate

plan and the modus operandi was the same in each instance.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(A)(ii) [8 U.S.C. § 1251(a)(2)(A)(ii)]—Crimes involving moral turpitude

ON BEHALF OF RESPONDENT:

Pro se

ON BEHALF OF SERVICE:

Lorraine L Griffin

General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated January 3, 1992, an immigration judge found

the respondent deportable under section 241(a)(2)(A)(ii) of the Immi506

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gration and Nationality Act, 8 U.S.C. § 1251(a)(2)(AXii) (Supp. II

1990), as an alien who at any time after entry is convicted of two

crimes involving moral turpitude not arising out of a single scheme of

criminal misconduct, and ordered him deported from the United

States to Nigeria. The respondent has appealed from that decision.

The appeal will be dismissed. The request for oral argument is denied.

8 C.F.R. § 3.1(e) (1992).

We first note that the immigration judge's decision incorrectly

indicates that the respondent conceded deportability. He did not. He

denied allegation 6 in the Order to Show Cause and Notice of Hearing

(Form I-221), and the Order to Show Cause reflects that he denied the

charge of deportability. Accordingly, the Board will review the record

de novo. See Matter of Lok, 18 I&N Dec. 101, 106 (BIA 1981), affd on

other grounds, 681 F.2d 107 (2d Cir. 1982) (holding that the Board is

not bound by immigration judge's conclusions but rather has plenary

power to review the record de nova and to make its own independent

determinations on questions of law and fact). We also note that the

respondent has offered the indictment from his criminal record on

appeal and that the Immigration and Naturalization Service has not

objected to its consideration.

The respondent, a native and citizen of Nigeria, entered the United

States as a nonimmigrant visitor on October 27, 1980. and his status

was adjusted to that of a lawful permanent resident on June 8, 1989.

On October 15, 1990, he was convicted in the United States District

Court for the Eastern District of North Carolina of the following

offenses: four counts of fraud in violation of 18 U.S.C. § 1341 (1988);

four counts of using fictitious names and addresses in violation of 18

U.S.C. § 1342 (1988); four counts of having falsely represented a

social security number assigned by the Secretary of the United States

Department of Health and Human Services in violation of 42 U.S.C.

§ 408 (1988); and three counts of fraud and related activity in

connection with access devices in violation of 18 U.S.C. § 1029(a)(2)

(1988). The conviction record was accepted into evidence at the

hearing. On October 23, 1991, the United States Court of Appeals for

the Fourth Circuit dismissed the respondent's direct appeal of his

conviction. On November 29, 1991, the respondent filed a petition for

rehearing with the Fourth Circuit.

For 11 of the counts, the respondent received a sentence of 3 years'

imprisonment for each count, to run concurrently with each other. For

the remaining four counts, he was placed on 5 years' probation. He

was also assessed a fine of $2,000 and, as a condition of probation, was

ordered to pay $71,386.19 as restitution. A monetary assessment of

$750 was also imposed.

The respondent does not contest that the crimes of which he was

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convicted involve moral turpitude. Fraud, as a general rule, has been

held to involve moral turpitude. Jordan v. De George, 341 U.S. 223

(1951); Matter of Flores, 17 I&N Dec. 225 (BIA 1980).

If the respondent had been convicted of only a single crime

involving moral turpitude committed within 5 years of "entry" into

the United States, he would also be deportable under section

241(a)(2)(A)(i) of the Act. However, it appears from the record before

us that the respondent's last "entry" occurred on October 27, 1980,

and the crimes in question were committed between June of 1986 and

May of 1987. The respondent's status was adjusted to that of a lawful

permanent resident on June 8, 1989, but this does not constitute an

"entry" for purposes of section 241(a)(2)(A)(i) of the Act. See Matter of

Connelly, 19 I&N Dec. 156 (BIA 1984). As reflected by the Order to

Show Cause, the respondent is solely charged with deportability under

section 241(a)(2)(A)(ii) of the Act on the basis that at any time after

entry, he has been convicted of two crimes involving moral turpitude

not arising out of a single scheme of criminal misconduct.

The immigration judge found that the respondent's conviction was

final for immigration purposes based on the conviction record and the

dismissal of his direct appeal by the Fourth Circuit. Thus, he found the

respondent deportable as charged and ordered him deported to

Nigeria.

The facts regarding the circumstances of the respondent's crimes are

not in dispute. The respondent applied for four credit cards in the

names of four different individuals, using fictitious names, addresses,

and social security numbers, and he was issued three of those cards.

Upon receipt of these cards, the respondent, during various periods in

1986 and 1987, obtained or attempted to obtain things of an aggregate

value of $1,000 or more for each card from Gulf Products Division,

BP Oil, Inc. He also caused others to use the falsely obtained cards.

On appeal, the respondent contends that the immigration judge

erred in concluding that his conviction was final for immigration

purposes. However, it is well established that a conviction attains a

sufficient degree of finality for immigration purposes when direct

appellate review of the conviction has been exhausted. See Matter of

Ozkok, 19 I&N Dec. 546, 552 n.7 (131A 1988). Therefore, the

possibility of a decision on any post-conviction motion that has been

filed does not affect our finding that the respondent is deportable. See

Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (stating that postconviction motions do not operate to negate finality of a conviction

for deportation purposes, unless and until the conviction is overturned

pursuant to such motions).

The respondent also asserts that his crimes arose out of a single

scheme of criminal misconduct. He maintains that the courts in most

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jurisdictions have rejected the Board's historical view of the issue,

following the lead case of Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959).

The respondent emphasizes that the crimes of which he was convicted

were all part of a single scheme which was elaborately planned. As

evidence of the single scheme, the respondent points out that the

indictment refers to him having "devised a scheme" and doing acts "in

furtherance of the aforesaid scheme."

Section 241(a)(2)(A)(ii) of the Act provides as follows:

Multiple criminal convictions. - Any alien who at any time after entry is convicted of

two or more crimes involving moral turpitude, not arising out of a single scheme of

criminal misconduct, regardless of whether confined therefor and regardless of

whether the convictions were in a single trial, is deportable.

Neither the language of the above statutory provision nor the

legislative history provides any assistance or insight into what

Congress meant by the phrase "single scheme of criminal misconduct." See Wood v. Hoy, supra; Matter of Vosganian, 12 I&N Dec. 1

(BIA 1966). In the past, the Board has interpreted this 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. This interpretation, which we continue

to view as the more reasonable one, recognized that the statutory

language was meant to distinguish cases where there are separate and

distinct crimes but they are performed in furtherance of a single

criminal episode. See Matter of LP, 8 I&N Dec. 236 (BIA 1958); Matter

of

7 I&N Dec. 144 (BIA 1956); Matter of 6 I&N Dec. 382 (BIA

1954); Matter of Z-, 6 I&N Dec. 167 (BIA 1954); Matter of D-, 5 I&N

Dec. 728 (BIA 1954).

Under this analysis, there would exist a single scheme of criminal

misconduct where one crime constituted a lesser offense of another, or

where the two crimes flow From and are the natural consequence of a

single act of criminal misconduct. Examples would be both possessing

and uttering a counterfeit bill, Matter of D-, supra, or where a person

breaks and enters into a store with intent to commit larceny and, in

connection with that criminal act, also commits an assault with a

deadly weapon. Matter of D-, supra; see also Matter of B-, supra, at 239.

The court in Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976), cert.

denied, 430 U.S. 985 (1977), appears to have most closely followed the

same analysis. Stating that it was reluctant to adopt a definition of a

"single scheme" that depends on a multitude of factors, the court

concluded that to be a "single scheme," the scheme must take place at

one time, meaning there must be no substantial interruption that

would allow the participant to disassociate himself from his enterprise

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and reflect on what he has done. The Board also finds this to be a

reasonable approach, which comports with the analysis undertaken in

our prior cases. See, e.g., Matter of Pataki, 15 I&N Dec. 324 (BIA

1975).

However, as pointed out by the respondent, the courts in the other

jurisdictions that have confronted this issue have, to varying degrees,

applied a more expansive interpretation of the language in question.

See Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990); Nason v.

INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830 (1968); Sawkow

v. INS, 314 F.2d 34 (3d Cir. 1963); Wood v. Hoy, supra; see also

Barrese v. Ryan, 203 F. Supp. 880 (D. Conn. 1962); Zito v. Moutal,

174 F. Supp. 531 (N.D. Ill. 1959); Jeronimo v. Muiff, 157 F. Supp. 808

(S.D.N.Y. 1957).

The respondent asserts that the Board should reverse the immigration judge's finding of deportability. We decline to do so and will

continue to follow our approach outside of those jurisdictions noted

above that have followed a more expansive interpretation. See Matter

of Cerna, 20 I&N Dec. 399 (131A 1991) (stating that authority from one

circuit is not binding in another), air d, 979 Fid 212 (11th Cir. 1992).

The respondent asserts that all jurisdictions, aside from the First

Circuit, have largely followed the analysis set forth in Wood v. Hoy,

supra. In that case, the Ninth Circuit stated that the liberal language of

the statute controls and that the phrase "not arising out of a single

scheme of criminal conduct" is not intended to mean not arising out of

a single criminal act. Id. at 830. Quoting Chanan Din Khan v. Barber,

253 F.2d 547 (9th Cir.), cert. denied, 357 U.S. 920 (1958), the court

went on to state that in the absence of all evidence to the contrary, two

complete crimes constitute two crimes not arising out of a single

scheme of criminal misconduct. Wood v. Hoy, supra, at 830.

In that case, the respondent had been convicted of robbing a liquor

store with three others, as well as robbing a drive in theater with the

-

same three people 3 days later. Although there were two complete

crimes, the court held that there was the existence of evidence

establishing a single scheme of criminal misconduct. Id. It agreed that

the commission of two crimes may, by the very nature of the crimes

themselves, or the time or circumstances of their commission,

constitute reasonable, substantial, and probative evidence that they

did not arise out of a single scheme of misconduct. However, the court

concluded that this was not the case before it, where both crimes were

robbery of the first degree, were committed by the same four people,

and were committed within 3 days of each other, and in both crimes

money was obtained from the victims by means of force and fear. Id.

at 831. The court also emphasized that the participants had met 2 or 3

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weeks before and had agreed at that time to participate in the two

particular armed robberies. Id.

In 1990, the Ninth Circuit reaffirmed its analysis, holding in

Gonzalez-Sandoval v. INS, supra, that where credible, =contradicted

evidence, which was consistent with the circumstances of the crimes,

showed that the two predicate crimes were planned at the same time

and were executed in accordance with that plan, the Government

failed in its burden of establishing that the convictions did not arise

out of "a single scheme of criminal misconduct." Id. at 616. In that

case, the court found that two bank robberies occurring within 2 days

of each other at the same bank arose out of a single scheme. Cf. LeonHernandez v. INS, 926 F.2d 902 (9th Cir. 1991).

However, we find this emphasis on whether the crimes are planned

together and executed in accordance with that plan, as were the

respondent's crimes, to be clearly unjustified. Such a contradiction of

the statute would result in extreme absurdities, as it would render

section 241(a)(2)(A)(ii) of the Act completely inapplicable in any case

where an alien committed several crimes, provided he first had the

foresight to formulate a broad plan of criminal misconduct, even if he

had numerous opportunities to reflect and to disassociate himself from

his criminal enterprise. See Pacheco v. INS, supra; Matter of Z-, supra.

In the case before us, it is clear that the respondent did, in fact, commit

his crimes pursuant to an elaborate plan. However, the emphasis on

the planning for these crimes remains unjustified. It would allow for

criminals to commit numerous similar crimes over a period of time,

but still avoid deportability by having committed them according to a

previous plan, while the criminal who committed the same crimes, but

without any overall plan, would be subject to deportation.

We simply cannot conclude that Congress intended by the "single

scheme" language to insulate from deportability individuals who

formulate a plan at one time for criminal behavior involving multiple

separate crimes, while making deportable those who commit only two

such crimes without a plan. Accordingly, as noted above, except within

the jurisdiction of a circuit court that has ruled otherwise, we will

continue to interpret and apply this statutory phrase as we have

historically. That is, the statutory 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.

This case arose within the jurisdiction of the Fifth Circuit, which has

not ruled on the interpretation of "single scheme" contained in section

241(a)(2)(A)(ii) of the Act. Therefore, the Board will apply its

historical analysis to the respondent's crimes.

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Under this analysis, it is of no consequence that the respondent's

separate crimes of unauthorized use of a credit card with intent to

defraud and the other related offenses were committed pursuant to an

elaborate plan and that the modus operandi was the same in each

instance. In Matter of Z , supra, which involved two convictions for

-

forging and uttering government checks, the Board interpreted the

predecessor statute to section 241(a)(2)(A)(ii) of the Act to mean that

when a criminal act accomplishes a specific and individual criminal

objective of and by itself, then the alien who performs it becomes

deportable when he commits another such act, provided both acts are

followed by convictions. Id. at 170. In that case, this was said to mean

that when the respondent received the money from the first forged

check she accomplished a specific criminal objective, and when she

received the money from the second forged check she accomplished

another, distinct criminal objective. Id. Thus, the Board focused on

actual receipt of the money by the alien as accomplishing the criminal

objective. In the present case the respondent committed separate and

distinct crimes each time he used a different credit card and obtained

through its unauthorized use things of an aggregate value of more than

$1,000. Therefore, with each use of a different card, the respondent

accomplished his specific criminal objective when he obtained things

of value resulting from the transactions with each card. At that point

the specific criminal objective had been accomplished.

The further use of other credit cards to obtain additional things of

value was not necessary to the success in obtaining things of value

from any one individual card. A specific criminal objective had

already been accomplished when he illegally used any one individual

credit card and from that illegal use obtained 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 alien had the opportunity to disassociate himself

from his enterprise and reflect on what he had done. In sum, the Board

finds that the Service has met its burden of establishing by clear,

unequivocal, and convincing evidence that the respondent was

convicted of two crimes involving moral turpitude not arising out of a

single scheme of criminal misconduct, and that he is accordingly

deportable as charged. Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R.

§ 242.14(a) (1992).

We find the respondent's remaining contentions to be without

merit.

Accordingly, the appeal will be dismissed.

ORDER:

The appeal is dismissed.

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