Criminal Defense of Immigrants

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).