Criminal Defense of Immigrants

 

(A)  Examples.  The courts have found multiple convictions occurred under a “single scheme” in a number of cases: six separate acts of bribery, larceny, and conspiracy in obtaining money from a city over a two-year period;[252] tax fraud for liquor violations on several dates;[253] two robberies by the same group three days apart;[254] false statements made one week apart to obtain unemployment compensation.[255]

 

On the other hand, the mere fact that two or more offenses were prosecuted in a single charging document or trial does not mean that the crimes will be considered part of a single scheme.[256]  The BIA found no single scheme for convictions in one trial of separate acts of theft,[257] forgery,[258] fraud,[259] tax evasion for different years,[260] passing counterfeit coins to different people,[261] unlawfully buying food stamps,[262] lewdness and indecent assault.[263]

 

In finding that multiple offenses were not committed pursuant to a single scheme when the person was convicted for tax evasion in two successive years, one court indicated disapproval of some earlier district court decisions, and interpreted the statute more harshly to deport more criminal noncitizens.[264]  This court stated: “Congress meant to give the noncitizen a second chance, not to spare the recidivist,” a “nebulous intention to repeat his crime” at some future time and place was not within the statutory contemplation, and deportability was triggered for two convictions for similar frauds committed over nine months apart.[265]

Another court upheld a deportation order based on break-ins committed two days apart during a prolonged period of drunkenness.[266]  The court recognized that the statute is ambiguous, and that the statute must be strictly construed in favor of the noncitizen, but was reluctant to adopt a definition “that depends on a multitude of factors,” and found that the “single scheme” contemplated a “temporarily integrated episode of continuous activity,” and “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.”[267]

 

In another decision, the court upheld deportability based on two acts of copulation, a month apart, with a minor of the opposite sex, rejecting a contention that they were part of a single scheme.[268]

 

[252] Jeronimo v. Murff, 157 F.Supp. 808 (S.D.N.Y. 1957).

[253] Barrese v. Ryan, 203 F.Supp. 880 (D. Conn. 1962), reversing Matter of B, 9 I. & N. Dec. 211 (BIA 1961); Zito v. Moutal, 174 F.Supp. 531 (N.D. Ill. 1959). Cf. Matter of C, 9 I. & N. Dec. 524 (BIA 1961) (two tax evasions in successive years).

[254] Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990) (“single scheme” found where noncitizen committed two robberies of the same bank within two days of each other, pursuant to a plan noncitizen devised to acquire money); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959); cf. Matter of Gutnick, 13 I. & N. Dec. 412 (BIA 1969).

[255] Matter of FG, 8 I. & N. Dec. 447 (BIA 1959).

[256] Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993); Animashaun v. INS, 990 F.2d 234 (5th Cir. 1993); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993); Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864 (1st Cir. 1956).

[257] Gubbels v. Del Guercio, 152 F.Supp. 277 (S.D. Cal. 1957), rev’d on other grounds, 261 F.2d 952 (9th Cir. 1958); Matter of A, 5 I. & N. Dec. 470 (BIA 1953).

[258] Matter of Z, 6 I. & N. Dec. 167 (BIA 1954). Cf. Matter of O’Gorman, 11 I. & N. Dec. 6 (BIA 1965) (two separate convictions for acts one year apart, not single scheme).

[259] Matter of O, 7 I. & N. Dec. 539 (BIA 1957); Matter of D, 5 I. & N. Dec. 728 (BIA 1954).

[260] Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 120 (1964); Khan v. Barber, 253 F.2d 547 (9th Cir. 1958); Matter of C, 9 I. & N. Dec. 524 (BIA 1961); Matter of J, 6 I. & N. Dec. 382 (BIA 1954).

[261] Matter of K, 7 I. & N. Dec. 178 (BIA 1956), overruled in part by Matter of Flores, 17 I. & N. Dec. 225, 229 (BIA 1980).

[262] Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. July 1, 2005) (affirming BIA conclusion that two convictions for violating 720 ILCS 5/17B-5 by illegally purchasing food stamps were not committed as part of a single scheme of criminal misconduct since the acts were distinct and neither offense caused the other).

[263] Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864 (1st Cir. 1956); Matter of M, 7 I. & N. Dec. 144 (BIA 1956).

[264] Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on another ground, 376 U.S. 120 (1964).

[265] Nason v. INS, 394 F.2d 223, 227 (2d Cir. 1968).  See also Michel v. INS, 206 F.3d 253, 260 (2d Cir. 2000) (using Nason analysis to hold that two convictions for use of stolen bus passes did not arise out of a single scheme of criminal misconduct).

[266] Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976) (reviewing prior decisions); cf. Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990) (“single scheme” found where noncitizen committed two bank robberies of same bank within two-day period pursuant to plan to acquire money; the Gonzalez-Sandoval court criticized the Pacheco requirement of a “temporally integrated episode” as straining “the language of the statute”).

[267] Pacheco v. INS, 546 F.2d 448, 451-52 (1st Cir. 1976).

[268] Leon-Hernandez v. INS, 926 F.2d 902 (9th Cir. 1990) (emphasizing statement in Nason that a “nebulous intention to repeat the crime with the same person” rather than a “fixed plan of future action” did not qualify as a single scheme).