There is a statutory exception to deportability under this ground where the two convictions arise “out of a single scheme of criminal misconduct, regardless of whether the defendant was confined therefor and regardless of whether the convictions were in a single trial.”[248] 

 

The phrase “single scheme of criminal misconduct” is not defined in the statute.  “The early administrative view, with some judicial support, seemed to regard ‘single scheme’ as equivalent to ‘single act,’ limited to acts resulting from the same criminal transaction.  This view was rejected by later judicial holdings that held that identity of time and purpose were not the exclusive considerations and that other factors, such as object and purpose, methods and procedures, identity of participants, and identity of victims should be taken into account.”[249]  

 

The BIA then broadened its interpretation of this phrase beyond a single act, but its limits have not been described with clarity.[250]

However, in a 1992 precedent decision, the Board rejected the majority judicial view, and reaffirmed its historic interpretation, which reads the “single scheme” language as denoting “an act, which in and of itself constitutes a complete, individual, and distinct crime.”  In applying this view, the Board ruled that a noncitizen who had devised a scheme of using different credit cards to defraud businesses on several occasions had not operated a single scheme of criminal misconduct, and was deportable for multiple crimes.  The Board’s restrictive reading, equating the statutory reference to “single scheme of criminal misconduct” as applicable to a single criminal episode, which may violate more than one criminal statute, has been adopted by some courts.[251]

[248] INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii).

[249] Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959); Zito v. Moutal, 174 F.Supp. 531 (N.D. Ill. 1959); Jeronimo v. Murff, 157 F.Supp. 808 (S.D.N.Y. 1957).

[250] Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975) (voluntary manslaughter and aggravated assault on mother-in-law and wife during rage provoked by marital argument, offenses occurred within a few minutes and were held the result of a single scheme); Matter of Gutnick, 13 I. & N. Dec. 412 (BIA 1969) (two separate burglaries in different cities, pursuant to a general plan to burglarize cars over a two-week period, held not single scheme); Matter of McLean, 12 I. & N. Dec. 551 (BIA 1967) (two convictions for issuing fraudulent checks three weeks apart, in different states, held not single scheme); Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (two convictions, one year apart, same lewd offense, held not single scheme); Matter of Vosganian, 12 I. & N. Dec. 1 (BIA 1966) (several larcenies over period of one month in seeking to cope with financial difficulties); Matter of O’Gorman, 11 I. & N. Dec. 6 (BIA 1965) (two separate convictions for forgery for acts one year apart, held not single scheme); Matter of Nason, 12 I. & N. Dec. 452 (BIA 1963), aff’d sub nom. Nason v. INS, 394 F.2d 223 (2d Cir. 1968) (two convictions for similar frauds committed over 10 months apart, held not single scheme); Matter of S, 9 I. & N. Dec. 613 (BIA 1962); Matter of C, 9 I. & N. Dec. 524 (BIA 1962); Matter of B, 9 I. & N. Dec. 211 (BIA 1961), rev’d sub nom. Barrese v. Ryan, 203 F.Supp. 880 (D. Conn. 1962); Matter of FG and CD, 8 I. & N. Dec. 447 (BIA 1959).  But see Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 120 (1964).

[251] Balogun v. INS, 31 F.3d 8 (1st Cir. 1994) (a single scheme must take place at one time; there must be no substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done); Nguyen v. INS, 991 F.2d 621, 624 (10th Cir. 1993) (statute equates “single scheme of criminal misconduct” with a “single criminal episode”); Animashaun v. INS, 990 F.2d 234, 257 (5th Cir. 1993) (“When an alien performs an act that in and of itself constitutes a complete, individual and distinct crime, he is deportable, even though one may follow closely the other, be similar in character, and even be part of an overall plan of criminal misconduct.”) (disagrees with Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990)); Iredia v. INS, 981 F.2d 847, 849 (5th Cir. 1993) (citing numerous conflicting authorities, court upheld administrative reading as not unreasonable). 

BIA

CRIMES OF MORAL TURPITUDE " SINGLE SCHEME EXCEPTION
Matter of Islam, 25 I&N Dec. 637, 643 (BIA 2011) (very restrictive interpretation of single scheme exception for multiple moral turpitude conviction ground of deportability, calling into question the authority of older cases with a more generous interpretation: the BIA cited to Chevron and Brand X and concluded: "We respectfully conclude that our analysis there is controlling and should now be uniformly applied in all circuits throughout the country."). Note: There is a good argument, however, to the contrary. E.g., Gonzalez-Sandoval v. U.S. INS, 910 F.2d 614 (9th Cir. 1990) (single scheme found where a noncitizen committed two robberies of the same bank within two days of each other, pursuant to a plan the noncitizen devised to acquire money); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). The BIA (and other circuits) definition is more restrictive and might receive deference. However, theres nothing in the dictionary definition of scheme that would restrict it to the same criminal incident or the same criminal episode, and Congress could have used those simple terms instead, so the plain ordinary meaning of scheme is something more like a plan than episode, incident or even course of conduct. It would assist the argument if the factual basis for the plea stated that the two counts were planned at the same time and executed in accordance with that plan as part of a single scheme of criminal misconduct. Thanks to Jonathan Moore.

CRIMES OF MORAL TURPITUDE " SINGLE SCHEME EXCEPTION
Matter of Islam, 25 I&N Dec. 637, 643 (BIA 2011) (very restrictive interpretation of single scheme exception for multiple moral turpitude conviction ground of deportability, calling into question the authority of older cases with a more generous interpretation: the BIA cited to Chevron and Brand X and concluded: "We respectfully conclude that our analysis there is controlling and should now be uniformly applied in all circuits throughout the country."). Note: There is a good argument, however, to the contrary. E.g., Gonzalez-Sandoval v. U.S. INS, 910 F.2d 614 (9th Cir. 1990) (single scheme found where a noncitizen committed two robberies of the same bank within two days of each other, pursuant to a plan the noncitizen devised to acquire money); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). The BIA (and other circuits) definition is more restrictive and might receive deference. However, theres nothing in the dictionary definition of scheme that would restrict it to the same criminal incident or the same criminal episode, and Congress could have used those simple terms instead, so the plain ordinary meaning of scheme is something more like a plan than episode, incident or even course of conduct. It would assist the argument if the factual basis for the plea stated that the two counts were planned at the same time and executed in accordance with that plan as part of a single scheme of criminal misconduct. Thanks to Jonathan Moore.

CRIMES OF MORAL TURPITUDE " DEPORTATION SINGLE SCHEME
Matter of Islam, 25 I&N Dec. 637 (BIA 2011) (crimes of moral turpitude did not arise out of a single scheme of criminal misconduct where respondent was convicted in two different counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to obtain items of value from several retail outlets on five separate occasions over the course of a day). http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf

CRIMES OF MORAL TURPITUDE " DEPORTATION GROUND " MULTIPLE CONVICTIONS " SINGLE SCHEME OF CRIMINAL MISCONDUCT
Matter of Islam, 25 I&N Dec. 637, 639 (BIA 2011) (New York convictions of criminal possession of stolen property (involving a credit or debit card), under N.Y. Penal 165.45(2), and forgery in the third degree, under N.Y. Penal 170.05, constituted multiple convictions of crimes of moral turpitude, for purposes of deportation under INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii), rejecting a claim that these convictions should be treated as a single scheme of criminal misconduct, where they arose from respondents use of two credit and debit cards at four locations, including different retail outlets, in adjoining counties over the course of a few hours); following Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) (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 pursuant to an elaborate plan and the same modus operandi was used for each offense: 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. . . . 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.).

CRIMES OF MORAL TURPITUDE - GROUND OF DEPORTATION - SINGLE SCHEME EXCEPTION
Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) (rejecting common plan test for single scheme), followed in Balogun v. INS, 31 F.3d 8 (1st Cir. 1994); Akindemowo v. U.S. INS, 61 F.3d 282 (4th Cir. 1995) Iredia v. INS, 981 F.2d 847 (5th Cir. 1993); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993), contra, Nason v. INS, 394 F.2d 223 (2d Cir. 1968) (a specific coherent plan of action to constitute a single scheme of criminal misconduct.); see Michel v. INS, 206 F.3d 2000 (2d Cir. 2000) (expressly leaving open question whether Chevron required it to follow Adetiba); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963) (expansive view of single scheme); Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990) (government will lose if "credible, uncontradicted evidence, which is consistent with the circumstances of the crimes, shows that the two predicate crimes were planned at the same time and executed in accordance with that plan ...."). If convictions are on same date and do not reflect the exact time, the government should lose even under Adetiba because there will be no evidence that the crimes were not committed simultaneously. Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975) (crimes were committed minutes apart). See also Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

Article, Checklist of Specific Facts That May Be Proven By Evidence Beyond the Record of Conviction for a Few Conviction-Based Grounds of Removal By Norton Tooby Introduction. In the wake of the Supreme Court's recent decision Nijhawan, we have analyzed all the conviction-based grounds of deportation and inadmissibility, to determine how to analyze whether a given conviction triggers a given ground of removal. The two options are: (a) the normal categorical analysis applies, or (b) there is a specific fact required for a selected number of removal grounds that goes beyond the elements of the offense of conviction, and may be proven by evidence beyond the record of conviction. (The same analysis is used for conviction-based bars to relief, nearly all of which also constitute grounds of removal.) We have just published a new 500-page book that discusses the current state of the categorical analysis. N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT (2d ed. 2009)(forthcoming). It will be back from the printer and available for purchase at the day-long crime and immigration seminar in New York on September 26, 2009, presented by the Immigrant Defense Project, the National Immigration Project of the National Lawyers Guild, and the Law Offices of Norton Tooby. This seminar will contain considerable information concerning both the old and new forms of categorical analysis, and will include state-of-the-art defenses against removal. To find out more about the topics to be covered, or to register for this seminar, go to www.NortonTooby.com. The new volume discusses: (1) The strict traditional categorical analysis, that applies to nearly all of the conviction-based grounds of removal; (2) The modified categorical analysis, in which the record of conviction is consulted. This modified analysis is used to determine which offense, among more than one offense encompassed in a given criminal statute, is the offense of which the defendant was convicted. (3) The new fact-specific analysis that is used in a few instances only, and always in addition to the normal categorical analysis. This article will offer a checklist of the limited number of specific facts that may be proven by evidence outside the record of conviction under the Supreme Court's analysis in Nijhawan. The General Rule. The categorical analysis applies to all conviction-based grounds of removal, including both grounds of deportability and grounds of inadmissibility. This traditional analysis focuses on the elements of the crime of conviction, and ignores the underlying facts. Under the Nijhawan analysis, a few grounds use the categorical analysis to see if a conviction falls within the generic definition of a ground of removal, but have an additional fact-specific requirement. These facts (a) need not be elements of the crime of conviction, and (b) can be proven in removal proceedings by any admissible evidence beyond the formal "record of conviction" of the crime. First, we will discuss the state of the law of categorical analysis applicable to Crimes of Moral Turpitude. Then, we will list the grounds with additional fact-specific requirements. Crimes of Moral Turpitude. The former Attorney General held that the assessment whether a conviction involved moral turpitude could be made under certain circumstances on the basis of evidence beyond the elements of the offense of conviction, and beyond the record of conviction. His analysis conflicts with the Supreme Court's analysis in Nijhawan, but has not yet been overruled. N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT 2.27 and Chapter 3, Living With Silva-Trevino (2d ed. 2009). Under the Nijhawan analysis, Silva-Trevino should be set aside, and whether a given conviction qualifies as a crime of moral turpitude should analyzed using the traditional categorical analysis. The moral turpitude ground of deportation, however, has a date requirement that appears to be a specific fact that can be proven by evidence outside the record of conviction. See (6), below. Fact-Specific Requirements. Under the best interpretation of Nijhawan, all conviction-based grounds of removal use the normal categorical analysis for the generic portion of the definition. The following removal grounds have, in addition, a fact-specific requirement that need not be an element of the offense of conviction. This fact can be proven by admissible evidence, even if it is outside the record of conviction. (1) Fraud or Deceit Aggravated Felonies have a requirement that the loss to the victim or victims exceeds $10,000." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (2) Tax Evasion Aggravated Felonies require a conviction of an offense "described in [26 U.S.C. 7201] (relating to tax evasion) in which the revenue loss to the government exceeds $10,000." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (3) Money Laundering Aggravated Felonies require a conviction of a violation of 18 U.S.C. 1956 or 1957, "if the amount of the funds exceeded $10,000 . . . ." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction, because it closely parallels the $10,000 loss requirement that the Supreme Court in Nijhawan held to be a specific fact. (4) Transporting Persons for Prostitution Aggravated Felonies require a conviction of "an offense that-- . . . (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage . . . ." The italicized language of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (5) Domestic Violence Protected Relationship Convictions require proof of a listed relationship between the defendant and the victim. It is very likely that the courts will in future hold that this protected relationship is a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. (6) Crime of Moral Turpitude Deportation Ground requires that the offense be committed within five years of admission. This appears to be a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. (7) RICO Aggravated Felony can be shown by a conviction of an offense described in 18 U.S.C. 1084, "if it is a second or subsequent offense . . . ." This appears to be a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. Fact-Based Exceptions to Grounds of Removal. In addition to the foregoing removal grounds, in which a specific fact is required to establish removability, there are a number of exceptions to conviction-based grounds of removal that depend upon specific facts. In Nijhawan, the Supreme Court described certain exceptions to conviction-based grounds of removal as fact-based definitions. Exceptions meeting this description include: (8) Immediate Family Exception to Alien Smuggling Aggravated Felony. (9) Immediate Family Exception to Passport Fraud Aggravated Felony. (10) Political Offense Exception to Crime of Violence Aggravated Felony. (11) Political Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility. (12) Youthful Offender Exception to Crime of Moral Turpitude Ground of Inadmissibility. (13) Petty Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility. (14) Political Offense Exception to Multiple Criminal Conviction Ground of Inadmissibility. (15) Thirty Grams of Marijuana Exception to Controlled Substances Deportation Ground. (16) Single Scheme Exception to Multiple Moral Turpitude Ground of Deportation. These removal grounds, and the analysis of Nijhawan used to reach the conclusions offered here, are described in more detail in N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT (2d ed. 2009)(forthcoming). The contents of this new edition are as follows. Chapter 1 contains an introduction and overview of the topic. Chapter 2 discusses the categorical analysis after Nijhawan, and draws general principles from that decision that are used to determine the type of categorical analysis to be used with respect to each conviction-based ground of removal. Appendix A lists all conviction-based grounds of removal - both grounds of deportability and inadmissibility -- and specifies the type of analysis to be used with each, with an analysis of why this is so under Nijhawan. Chapter 3 discusses the Silva-Trevino decision of the former Attorney General, purporting to abandon key elements of the categorical analysis historically used for a hundred years to determine whether a conviction constitutes a crime involving moral turpitude. It focuses on "living with Silva-Trevino," in the event that sloppy and result-oriented lame-duck decision survives - as it should not -- the aftermath of Nijhawan. The Appendices include other important analyses of Nijhawan, and recent briefs and lower court decisions implementing Nijhawan and Silva-Trevino. They also include a number of briefs challenging different aspects of Silva-Trevino. Appendix A lists all conviction-based grounds of removal and bars to relief, and seeks to show what type of analysis applies to each, and is presented in a simple checklist form to make it easy to find the applicable analysis. Appendix B includes the Nijhawan decision, and reprints with permission two leading Practice Advisories concerning its interpretation: Dan Kesselbrenner & Manny Vargas, Practice Advisory: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009) www.nationalimmigrationproject.org; Katherine A. Brady, Senior Staff Attorney, Immigrant Legal Resource Center, Preliminary Advisory on Nijhawan v. Holder (Immigrant Legal Resource Center 2009), www.ilrc.org. Appendix C includes the Silva-Trevino decision, several briefs challenging it, two recent Immigration Judge decisions interpreting it, and a Reasonable Probability Affidavit showing how to argue that defendants have actually been prosecuted for conduct lying outside the boundaries of a ground of removal. 1. Attorney General Decision Since a close reading of Silva-Trevino is important when reviewing the other materials in this volume, we have provided a copy here. 2. Motion to Reconsider Lisa Brodyaga's excellent motion to reconsider in Silva-Trevino itself is included here. 3. Amicus Motion to Reconsider We have also included the very valuable motion to reconsider, filed on behalf of a number of amicus curiae, which offers many arguments that could be made in courts of appeal in a case in which the BIA follows Silva-Trevino. 4. Amicus Reply Memorandum This document responds to the government's brief in opposition to the motion to reconsider. 5. Amicus Second Motion to Reconsider After Mukasey denied the initial motion to reconsider Silva-Trevino, on the eve of his departure from office, amicus filed a second motion to reconsider this decision. 6. IJ Decision Denying Silva-Trevino Hearing This IJ decision rejects a DHS request for a step three Silva-Trevino hearing to establish that a non-CMT conviction on the elements is a CMT on the facts. 7. Reasonable Probability Affidavit This affidavit in support of a motion to terminate proceedings in Matter of Louissaint, on remand, was signed by a Florida public defender, and establishes that Florida burglary covers not only buildings, but also "cartilage," which includes partially enclosed adjacent areas, and that there is a reasonable probability that a defendant who entered only the cartilage, but not a building, would in fact be prosecuted under this statute in Florida, for the purpose of meeting the Duenas and Silva-Trevino "reasonable probability" of prosecution tests. 8. Step Three Boston IJ Decision This IJ decision finds that the evidence fails to establish that convictions under 18 U.S.C. 1501(a) were crimes of moral turpitude, following a Silva-Trevino Step Three factual hearing. Appendix D K. Brady, Practice Advisory, Defense Arguments: Matter of Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009). Appendix E Circuit Breakdown of "Extra Element" Variations This Article, drawn from N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS (2007), gives a circuit-by-circuit description of decisions on the question whether evidence beyond the elements of the offense of conviction may be used in the analysis of the nature of a conviction for immigration purposes. CD4:16.7;AF:4.6;CMT3:6.2 CRIMES OF MORAL TURPITUDE - SINGLE SCHEME The BIA has defined "single scheme of criminal misconduct" as covering crimes where the defendant did not have time to reflect between the first and second crimes. The BIA rejected the "common plan" approach, under which two convictions would be considered part of a single scheme if both were committed as part of a common plan. Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992). The First, Fourth, Fifth, Seventh, and Tenth Circuits have deferred to Adetiba. Balogun v. INS, 31 F.3d 8 (1st Cir. 1994); Akindemowo v. U.S. INS, 61 F.3d 282 (4th Cir. 1995); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993). To deport, the government has the burden of proving that the crimes were not part of a single scheme. Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975). The government may satisfy its burden through inferences. See Matter of C, 9 I. & N. Dec. 524 (BIA 1962), rev'd on other grounds, Costello v. INS, 376 U.S. 120 (1964). In Iredia v. INS, 981 F.2d 847 (5th Cir. 1993), the Fifth Circuit found that the Immigration Judge's refusal to permit the respondent to testify did not violate due process, where the respondent was arguing an improper standard governed the issue. If the Immigration Judge refuses to allow testimony, counsel should consider making an offer of proof as to the contents of respondent's testimony. In Adetiba, the BIA acknowledged that the Second, Third, and Ninth Circuits disagree with the BIA's approach, holding that testimony might establish that the crimes were part of a single scheme, which would undercut the government's case that no single scheme existed. See, e.g., Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990). The BIA contemplates that testimony would be offered on this issue. Matter of C, 9 I. & N. Dec. 524 (BIA 1962), rev'd on other grounds, Costello v. INS, 376 U.S. 120 (1964). In a pre-Chevron case, the Second Circuit took an expansive view of what constitutes a "single scheme, allowing a specific coherent plan of action to constitute a single scheme of criminal misconduct." Nason v. INS, 394 F.2d 223 (2d Cir. 1968). In Michel v. INS, 206 F.3d 2000 (2d Cir. 2000), the Second Circuit expressly left open the question of whether Chevron required it to follow Adetiba. The Third Circuit also has a pre-Chevron single scheme case that takes an expansive view of the meaning of the phrase "single scheme." Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963). In a post-Chevron case that does not mention Chevron, the Ninth Circuit reaffirmed Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990). In the Ninth Circuit, the government will lose if "credible, uncontradicted evidence, which is consistent with the circumstances of the crimes, shows that the two predicate crimes were planned at the same time and executed in accordance with that plan ...." Gonzalez-Sandoval v. INS, 910 F.2d 614, 616 (9th Cir. 1990). If convictions are on same date and do not reflect the exact time, the government should lose even under Adetiba because there will be no evidence that the crimes were not committed simultaneously. Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975) (crimes were committed minutes apart). See also Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963). Thanks to Dan Kesselbrenner.

Article, Checklist of Specific Facts That May Be Proven By Evidence Beyond the Record of Conviction for a Few Conviction-Based Grounds of Removal By Norton Tooby Introduction. In the wake of the Supreme Court's recent decision Nijhawan, we have analyzed all the conviction-based grounds of deportation and inadmissibility, to determine how to analyze whether a given conviction triggers a given ground of removal. The two options are: (a) the normal categorical analysis applies, or (b) there is a specific fact required for a selected number of removal grounds that goes beyond the elements of the offense of conviction, and may be proven by evidence beyond the record of conviction. (The same analysis is used for conviction-based bars to relief, nearly all of which also constitute grounds of removal.) We have just published a new 500-page book that discusses the current state of the categorical analysis. N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT (2d ed. 2009)(forthcoming). It will be back from the printer and available for purchase at the day-long crime and immigration seminar in New York on September 26, 2009, presented by the Immigrant Defense Project, the National Immigration Project of the National Lawyers Guild, and the Law Offices of Norton Tooby. This seminar will contain considerable information concerning both the old and new forms of categorical analysis, and will include state-of-the-art defenses against removal. To find out more about the topics to be covered, or to register for this seminar, go to www.NortonTooby.com. The new volume discusses: (1) The strict traditional categorical analysis, that applies to nearly all of the conviction-based grounds of removal; (2) The modified categorical analysis, in which the record of conviction is consulted. This modified analysis is used to determine which offense, among more than one offense encompassed in a given criminal statute, is the offense of which the defendant was convicted. (3) The new fact-specific analysis that is used in a few instances only, and always in addition to the normal categorical analysis. This article will offer a checklist of the limited number of specific facts that may be proven by evidence outside the record of conviction under the Supreme Court's analysis in Nijhawan. The General Rule. The categorical analysis applies to all conviction-based grounds of removal, including both grounds of deportability and grounds of inadmissibility. This traditional analysis focuses on the elements of the crime of conviction, and ignores the underlying facts. Under the Nijhawan analysis, a few grounds use the categorical analysis to see if a conviction falls within the generic definition of a ground of removal, but have an additional fact-specific requirement. These facts (a) need not be elements of the crime of conviction, and (b) can be proven in removal proceedings by any admissible evidence beyond the formal "record of conviction" of the crime. First, we will discuss the state of the law of categorical analysis applicable to Crimes of Moral Turpitude. Then, we will list the grounds with additional fact-specific requirements. Crimes of Moral Turpitude. The former Attorney General held that the assessment whether a conviction involved moral turpitude could be made under certain circumstances on the basis of evidence beyond the elements of the offense of conviction, and beyond the record of conviction. His analysis conflicts with the Supreme Court's analysis in Nijhawan, but has not yet been overruled. N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT 2.27 and Chapter 3, Living With Silva-Trevino (2d ed. 2009). Under the Nijhawan analysis, Silva-Trevino should be set aside, and whether a given conviction qualifies as a crime of moral turpitude should analyzed using the traditional categorical analysis. The moral turpitude ground of deportation, however, has a date requirement that appears to be a specific fact that can be proven by evidence outside the record of conviction. See (6), below. Fact-Specific Requirements. Under the best interpretation of Nijhawan, all conviction-based grounds of removal use the normal categorical analysis for the generic portion of the definition. The following removal grounds have, in addition, a fact-specific requirement that need not be an element of the offense of conviction. This fact can be proven by admissible evidence, even if it is outside the record of conviction. (1) Fraud or Deceit Aggravated Felonies have a requirement that the loss to the victim or victims exceeds $10,000." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (2) Tax Evasion Aggravated Felonies require a conviction of an offense "described in [26 U.S.C. 7201] (relating to tax evasion) in which the revenue loss to the government exceeds $10,000." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (3) Money Laundering Aggravated Felonies require a conviction of a violation of 18 U.S.C. 1956 or 1957, "if the amount of the funds exceeded $10,000 . . . ." The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction, because it closely parallels the $10,000 loss requirement that the Supreme Court in Nijhawan held to be a specific fact. (4) Transporting Persons for Prostitution Aggravated Felonies require a conviction of "an offense that-- . . . (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage . . . ." The italicized language of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction. (5) Domestic Violence Protected Relationship Convictions require proof of a listed relationship between the defendant and the victim. It is very likely that the courts will in future hold that this protected relationship is a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. (6) Crime of Moral Turpitude Deportation Ground requires that the offense be committed within five years of admission. This appears to be a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. (7) RICO Aggravated Felony can be shown by a conviction of an offense described in 18 U.S.C. 1084, "if it is a second or subsequent offense . . . ." This appears to be a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction. Fact-Based Exceptions to Grounds of Removal. In addition to the foregoing removal grounds, in which a specific fact is required to establish removability, there are a number of exceptions to conviction-based grounds of removal that depend upon specific facts. In Nijhawan, the Supreme Court described certain exceptions to conviction-based grounds of removal as fact-based definitions. Exceptions meeting this description include: (8) Immediate Family Exception to Alien Smuggling Aggravated Felony. (9) Immediate Family Exception to Passport Fraud Aggravated Felony. (10) Political Offense Exception to Crime of Violence Aggravated Felony. (11) Political Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility. (12) Youthful Offender Exception to Crime of Moral Turpitude Ground of Inadmissibility. (13) Petty Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility. (14) Political Offense Exception to Multiple Criminal Conviction Ground of Inadmissibility. (15) Thirty Grams of Marijuana Exception to Controlled Substances Deportation Ground. (16) Single Scheme Exception to Multiple Moral Turpitude Ground of Deportation. These removal grounds, and the analysis of Nijhawan used to reach the conclusions offered here, are described in more detail in N. TOOBY, CATEGORICAL ANALYSIS TOOL KIT (2d ed. 2009)(forthcoming). The contents of this new edition are as follows. Chapter 1 contains an introduction and overview of the topic. Chapter 2 discusses the categorical analysis after Nijhawan, and draws general principles from that decision that are used to determine the type of categorical analysis to be used with respect to each conviction-based ground of removal. Appendix A lists all conviction-based grounds of removal - both grounds of deportability and inadmissibility -- and specifies the type of analysis to be used with each, with an analysis of why this is so under Nijhawan. Chapter 3 discusses the Silva-Trevino decision of the former Attorney General, purporting to abandon key elements of the categorical analysis historically used for a hundred years to determine whether a conviction constitutes a crime involving moral turpitude. It focuses on "living with Silva-Trevino," in the event that sloppy and result-oriented lame-duck decision survives - as it should not -- the aftermath of Nijhawan. The Appendices include other important analyses of Nijhawan, and recent briefs and lower court decisions implementing Nijhawan and Silva-Trevino. They also include a number of briefs challenging different aspects of Silva-Trevino. Appendix A lists all conviction-based grounds of removal and bars to relief, and seeks to show what type of analysis applies to each, and is presented in a simple checklist form to make it easy to find the applicable analysis. Appendix B includes the Nijhawan decision, and reprints with permission two leading Practice Advisories concerning its interpretation: Dan Kesselbrenner & Manny Vargas, Practice Advisory: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009) www.nationalimmigrationproject.org; Katherine A. Brady, Senior Staff Attorney, Immigrant Legal Resource Center, Preliminary Advisory on Nijhawan v. Holder (Immigrant Legal Resource Center 2009), www.ilrc.org. Appendix C includes the Silva-Trevino decision, several briefs challenging it, two recent Immigration Judge decisions interpreting it, and a Reasonable Probability Affidavit showing how to argue that defendants have actually been prosecuted for conduct lying outside the boundaries of a ground of removal. 1. Attorney General Decision Since a close reading of Silva-Trevino is important when reviewing the other materials in this volume, we have provided a copy here. 2. Motion to Reconsider Lisa Brodyaga's excellent motion to reconsider in Silva-Trevino itself is included here. 3. Amicus Motion to Reconsider We have also included the very valuable motion to reconsider, filed on behalf of a number of amicus curiae, which offers many arguments that could be made in courts of appeal in a case in which the BIA follows Silva-Trevino. 4. Amicus Reply Memorandum This document responds to the government's brief in opposition to the motion to reconsider. 5. Amicus Second Motion to Reconsider After Mukasey denied the initial motion to reconsider Silva-Trevino, on the eve of his departure from office, amicus filed a second motion to reconsider this decision. 6. IJ Decision Denying Silva-Trevino Hearing This IJ decision rejects a DHS request for a step three Silva-Trevino hearing to establish that a non-CMT conviction on the elements is a CMT on the facts. 7. Reasonable Probability Affidavit This affidavit in support of a motion to terminate proceedings in Matter of Louissaint, on remand, was signed by a Florida public defender, and establishes that Florida burglary covers not only buildings, but also "cartilage," which includes partially enclosed adjacent areas, and that there is a reasonable probability that a defendant who entered only the cartilage, but not a building, would in fact be prosecuted under this statute in Florida, for the purpose of meeting the Duenas and Silva-Trevino "reasonable probability" of prosecution tests. 8. Step Three Boston IJ Decision This IJ decision finds that the evidence fails to establish that convictions under 18 U.S.C. 1501(a) were crimes of moral turpitude, following a Silva-Trevino Step Three factual hearing. Appendix D K. Brady, Practice Advisory, Defense Arguments: Matter of Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009). Appendix E Circuit Breakdown of "Extra Element" Variations This Article, drawn from N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS (2007), gives a circuit-by-circuit description of decisions on the question whether evidence beyond the elements of the offense of conviction may be used in the analysis of the nature of a conviction for immigration purposes. CD4:16.7;AF:4.6;CMT3:6.2 CRIMES OF MORAL TURPITUDE - SINGLE SCHEME The BIA has defined "single scheme of criminal misconduct" as covering crimes where the defendant did not have time to reflect between the first and second crimes. The BIA rejected the "common plan" approach, under which two convictions would be considered part of a single scheme if both were committed as part of a common plan. Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992). The First, Fourth, Fifth, Seventh, and Tenth Circuits have deferred to Adetiba. Balogun v. INS, 31 F.3d 8 (1st Cir. 1994); Akindemowo v. U.S. INS, 61 F.3d 282 (4th Cir. 1995); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993). To deport, the government has the burden of proving that the crimes were not part of a single scheme. Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975). The government may satisfy its burden through inferences. See Matter of C, 9 I. & N. Dec. 524 (BIA 1962), rev'd on other grounds, Costello v. INS, 376 U.S. 120 (1964). In Iredia v. INS, 981 F.2d 847 (5th Cir. 1993), the Fifth Circuit found that the Immigration Judge's refusal to permit the respondent to testify did not violate due process, where the respondent was arguing an improper standard governed the issue. If the Immigration Judge refuses to allow testimony, counsel should consider making an offer of proof as to the contents of respondent's testimony. In Adetiba, the BIA acknowledged that the Second, Third, and Ninth Circuits disagree with the BIA's approach, holding that testimony might establish that the crimes were part of a single scheme, which would undercut the government's case that no single scheme existed. See, e.g., Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990). The BIA contemplates that testimony would be offered on this issue. Matter of C, 9 I. & N. Dec. 524 (BIA 1962), rev'd on other grounds, Costello v. INS, 376 U.S. 120 (1964). In a pre-Chevron case, the Second Circuit took an expansive view of what constitutes a "single scheme, allowing a specific coherent plan of action to constitute a single scheme of criminal misconduct." Nason v. INS, 394 F.2d 223 (2d Cir. 1968). In Michel v. INS, 206 F.3d 2000 (2d Cir. 2000), the Second Circuit expressly left open the question of whether Chevron required it to follow Adetiba. The Third Circuit also has a pre-Chevron single scheme case that takes an expansive view of the meaning of the phrase "single scheme." Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963). In a post-Chevron case that does not mention Chevron, the Ninth Circuit reaffirmed Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990). In the Ninth Circuit, the government will lose if "credible, uncontradicted evidence, which is consistent with the circumstances of the crimes, shows that the two predicate crimes were planned at the same time and executed in accordance with that plan ...." Gonzalez-Sandoval v. INS, 910 F.2d 614, 616 (9th Cir. 1990). If convictions are on same date and do not reflect the exact time, the government should lose even under Adetiba because there will be no evidence that the crimes were not committed simultaneously. Matter of Pataki, 15 I. & N. Dec. 324 (BIA 1975) (crimes were committed minutes apart). See also Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963). Thanks to Dan Kesselbrenner.

Fifth Circuit

SINGLE SCHEME
United States v. Hope, 545 F.3d 293 (5th Cir. Oct. 8, 2008) (defendant's possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute).

Sixth Circuit

CRIMES OF MORAL TURPITUDE - SINGLE SCHEME
United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006) (sentencing court may rely on affidavits of complaint containing statements of fact "only" for "the limited inquiry of whether prior offenses constitute a single criminal episode or multiple episodes" for purposes of determining whether prior offenses qualify as "convictions [for crimes] ... committed on occasions different from one another" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)); accord, United States v. Wells, 473 F.3d 640, 647 n. 5 (6th Cir.2007).