Safe Havens

(B)  Burden of Proof.  Since the proceeding is a deportation proceeding, the government bears the burden of establishing that the convictions did not arise out of a single scheme of misconduct, unless the nature, time, or circumstances of the crimes makes such proof unnecessary.[1068]  The Supreme Court, however, established a presumption that agency action is valid, and federal courts have since concluded that the government’s burden of proving the different convictions were not committed as part of a “single scheme” is easily met.[1069]

[1068] Nason v. INS, 370 F.2d 865 (2d Cir. 1967) (no administrative finding that burden was met; on appeal after remand, the court held that evidence was sufficient to support the finding that noncitizen’s two convictions for devising scheme to defraud were not a “single scheme of criminal misconduct” and that deportation was properly authorized); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963) (burden not sustained where two similar crimes involving thefts of automobiles were committed within one day of each other); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959); Zito v. Moutal, 174 F.Supp. 531 (N.D. Ill. 1959); Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975) (government did not sustain burden, since record supported inconsistent inferences);  Matter of T, 9 I. & N. Dec. 646 (BIA 1962) (when respondent stood mute, government’s burden met by introducing his preliminary statement and court records of his convictions); Matter of C, 9 I. & N. Dec. 524 (BIA 1961).  Cf. Glaros v. INS, 434 F.2d 685 (5th Cir. 1970); Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 120 (1964) (no affirmative showing required when respondent remained silent and tax evasion charges were for separate years); Fitzgerald v. Landon, 238 F.2d 864 (1st Cir. 1956) (disregarding convicting court’s statement that the offenses were part of a single criminal enterprise).

[1069] See Balogun v. INS, 31 F.3d 8 (1st Cir. 1994) (convictions for mail fraud did not arise from a “single scheme of criminal misconduct” and thus could be considered two crimes for purpose of determining deportability); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993) (adopting the BIA’s definition of “single scheme” after giving due deference to the agency’s interpretation of ambiguous law as required by Chevron); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993) (INS met burden of showing that its interpretation of the “single scheme” provision in the INA was reasonable).