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When discussing immigration deportability for two or more crimes involving moral turpitude, when does one scheme of misconduct end and another begin? I mean, “Everything has to come to an end, sometime.” L. Frank Baum, The Marvelous Land of Oz. But, in immigration law, when is that point? When does something come to an end? This week the Ninth Circuit (in one of the more fascinating philosophical decisions I have ever read) addressed this issue and deferred to the Board of Immigration Appeals’ interpretation as to when things end. Nothing came down from the BIA and nothing came down from the Attorney General’s office. In related news, William Barr was sworn in as the new Attorney General. It should be interesting to see how he handles all of the immigration cases that Sessions and Whitaker referred to themselves. I imagine the BIA and the AG’s office might become more active in the coming months.
NINTH CIRCUIT
What Constitutes a Single Scheme of Misconduct?
A noncitizen is removable from the United States if after any time after admission they are convicted of two or more crimes involving moral turpitude (CIMT) not arising out of a single scheme of misconduct. INA § 237(a)(2)(A)(ii). Most of the time this issue is pretty clear cut. Like when a noncitizen is convicted of insurance fraud in 2002 and is convicted of robbery in 2018. Those are two distinct incidents; two distinct crimes; and they are separated by a long period of time. But what happens when the crimes take place at the same time? How do you determine whether it is a single crime of many different crimes?
The facts in this case are disturbing, but they are important to understanding the case. You might need to go for a walk (or down a shot of scotch) after reading this blog. Istvan Szonyi is a native and citizen of Hungary. In 1957, when he was four years old, he was admitted to the United States. (Remember that in 1956 the Soviet Union invaded Hungary when it tried to leave the Eastern Bloc. It is likely that Mr. Szonyi entered the United States as a refugee). It’s unclear when he became a permanent resident. Here is where the case gets really ugly. In 1981 (that’s not a typo, we are talking about something that happened thirty-eight years ago) he invited three women to his nearby place of work “where he threatened, abused, and degraded them over a period of five or six hours.” Szonyi v. Whitaker, No. 15-73514, slip op. at *23 (Fisher, J. dissenting). That year he was arrested, and he pleaded guilty to two counts of oral copulation in violation of California Penal Code § 288a(c) and to two counts of sexual penetration with a foreign object in violation of California Penal Code § 289. (I am not linking to the California code because these convictions were from 1981 and I am not sure if it is the same code). The court sentenced Mr. Szonyi to twelve years in prison. In 1988 he was released from prison. In 2005, ICE served Mr. Szonyi with a notice to appear charging him with removability under INA § 237(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. It is a stark reminder that there is no statute of limitations in immigration law.
You might be wondering why the government charged him removability for having been convicted of two crimes involving moral turpitude, rather than charge him with removability for having been convicted of an aggravated felony. Surely these convictions constitute an aggravated felony. I mean if anything is an aggravated felony it must be sexual assault. Plus, if they just charged him with an aggravated felony, the government would not have to go into this esoteric argument that the crimes were not a single scheme of misconduct. The answer is, Mr. Szonyi committed and was convicted of these crimes in 1982. That year is important. While we don’t have a statute of limitations, we do have retroactivity concerns in immigration law.
Here is a little history lesson. On November 18, 1988, Congress created aggravated felonies. The original aggravated felonies were drug trafficking, arms trafficking, and murder. IMMACT90 added rape and sexual abuse of a minor. But IMMACT90 (§ 501(b)) only applies to acts committed on or before October 24, 1994. Ira Kurzban, Immigration Law Sourcebook, at 345 (Sixteenth Edition). Plus, in the Ninth Circuit, even if the definition of an aggravated felony is retroactive, it does not render a person deportable because the Anti-Drug Abuse Act of 1988 (ADAA) barred an aggravated felony conviction entered prior to its effective date of November 18, 1988 from serving as a basis for removal. Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010). Mr. Szonyi is not removable for having been convicted of an aggravated felony because the conviction was before 1988. He is also not removable for having been convicted of a single CIMT because he committed the crime well after the five years after admission. (A noncitizen is removable for having been convicted of a single CIMT if he committed the crime within five years after admission). INA § 237(a)(2)(A)(i). The only way the government could remove Mr. Szonyi for having been convicted of these crimes, was if he had been convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.
On September 19, 2011, the Immigration Judge (IJ) found that Mr. Szonyi was removable because his predicate crimes did not arise out of a single scheme of criminal misconduct. The IJ also denied his applications for cancellation of removal under INA § 240A(a) and under § 212(c). Mr. Szonyi appealed the case to the BIA. While his appeal was pending, the BIA issued a precedential opinion holding that it would apply its interpretation of a “single scheme of criminal misconduct” in all circuits. Matter of Islam, 25 I.&N. Dec. 637 (BIA 2011).
Now it’s time to compare the BIA’s definition of a ‘single scheme of misconduct’ with the Ninth Circuit’s definition to see what changed. First, let’s examine the BIA’s definition. The BIA held that a single scheme of misconduct “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 quoting, Matter of Adetiba, 20 I&. Dec. 506, 509 (BIA 1992). The BIA clarified “to be a ‘single scheme of misconduct,’ the single scheme “must take place at one time, meaning that there must be no substantial interruption that would allow the participant to dissociate himself from his enterprise and reflect on what he has done.” Matter of Islam, 25 I.& N. Dec. at 640, quoting, Matter of Adetiba, 20 I.& N. Dec. at 509-510. The idea is that if a person robs someone ICE cannot charge them with two crimes – robbery and assault – because assault is a lesser included offense of robbery and is a consequence of the single act of criminal misconduct.
By contrast, the Ninth Circuit defined a single scheme of misconduct as encompassing distinct crimes that were all part of the same overall plan. Gonzalez-Sandoval v. U.S. INS, 910 F.2d 614, 619 (9th Cir. 1990). It would seem under the Ninth Circuit’s definition that Mr. Szonyi’s crime were all part of a single scheme of misconduct as they were all part of the same overall plan.
So which definition applies to Mr. Szonyi? Is a single scheme of misconduct one where the distinct crimes were all part of the same overall plan? Or, was it a scheme that would allow the participant to disassociate himself from his enterprise and reflect on what he had done? The Ninth Circuit found that they had to accord Chevron deference to Matter of Islam because the statute is ambiguous, and the BIA’s interpretation of the statute is permissible. And under Brand X, (Nat’l Cable & Telecomms. Ass’n v. Brand X, 545 U.S. 967, 982 (2005)), where the circuit courts have a different interpretation of the law from the agency, but the agency’s interpretation is permissible under Chevron, the agency’s definition trumps the circuit court’s definition. The Ninth Circuit had to defer to Matter of Islam. The BIA in Mr. Szonyi’s case found that under Matter of Islam, Mr. Szonyi’s crimes were separate offenses and were not part of a single scheme.
After determining which definition they had to use, the Ninth Circuit disposed of all of Mr. Szonyi’s arguments. First, Mr. Szonyi argued that the BIA’s interpretation is impermissible based on congressional intent and constitutional avoidance. The Ninth Circuit disagreed finding the definition did not present the same uncertainty concerns that the Supreme Court identified in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding that the immigration definition of a crime of violence was unconstitutionally vague).
Next, the Ninth Circuit found that the BIA’s decision was not impermissibly retroactive. The Ninth Circuit went through the five prong Montgomery Ward test and found that the factors favored the government. Under Montgomery Ward the courts consider:
(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982).
Applying this test, we conclude that the BIA’s application of its standard to Szonyi’s case was permissible.
Szonyi, slip op. at * 14. I am not going to belabor the Montgomery Ward analysis here. Suffice it to say, the Ninth Circuit found that the Government prevailed on the majority of the factors.
Mr. Szonyi then argued that under the BIA’s own precedent, he was not removable. Under the BIA’s precedent it is not a single scheme if the noncitizen had an opportunity to stop his activities, reflect on what he had done and dissociate himself from it. But the Ninth Circuit found that the BIA “explicitly concluded that “[a]fter the abuse of any one victim, the respondent had the opportunity to cease his activities and reflect on what he had done.”” Szonyi, slip op. at *17. Remember that the BIA’s findings are conclusive unless any reasonable adjudicator would be compelled to conclude the to the contrary. Villavicencio v. Sessions, 904 F.3d 658 (9th Cir. 2018). The Ninth Circuit held, “We do not read the record as compelling a conclusion that Szonyi had no opportunity to reflect on his acts over a period of five or six hours while subjecting three separate women to nonconsensual sexual acts.” Szonyi, slip op. at *17.
Next, the Ninth Circuit found that the BIA did not abuse its discretion in not granting Mr. Szonyi cancellation of removal or 212(c) relief. The Ninth Circuit noted that while it lacks jurisdiction to review the merits of a discretionary decision to deny cancellation of removal, it does have jurisdiction to review whether the IJ considered relevant evidence in making this decision. Vilchez v. Holder, 682 F.3d 1195 (9th Cir. 2012). Here the Ninth Circuit recognized that the BIA and the IJ reviewed the entire record and denied Mr. Szonyi’s case in an exercise of its discretion.
Judge Raymond Fisher dissented. He started off his dissent noting that the agrees with much of the majority opinion but disagrees with their conclusion that the BIA reasonably applied its precedent to this case. Judge Fisher puts it more elegantly than I can.
BIA precedent squarely holds that two or more crimes committed during a single criminal episode arise from a single scheme of criminal conduct, and hence do not render an individual removable under 8 U.S.C. § 1227(a)(2)(A)(ii), unless they are marked by a “substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done” between crimes. Matter of Adetiba, 20 I. & N. Dec. 506, 509–10 (BIA 1992) (emphasis added). Because we cannot discern whether or how the BIA applied this precedent in this case, where the petitioner’s crimes were part of a single and continuous criminal episode, and there is nothing in the record to suggest there was a “substantial interruption” between the crimes, I would grant the petition for review and remand to the BIA for an adequate explanation.
Szonyi, slip op. at *22.
In other words, there is no way to tell whether Mr. Szonyi’s crimes were part of a single, continuous episode, or whether there was a substantial interruption between the crimes that allowed Mr. Szonyi to stop, reflect, and say to himself, “should I do this?” I have to agree with the dissent here. There is nothing in the decision (there might be something else in the record that is not in the decision) to indicate that there was any type of substantial interruption here. This case might be one of bad facts creating bad law. It is easy to imagine the government now charging every CIMT as multiple schemes of misconduct.