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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1011
HENRY OLAWALE BALOGUN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN
ORDER OF THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Selya and Cyr,
Circuit Judges
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Henry Olawale Balogun on brief pro se.
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Frank W, Hunger, Assistant Attorney General, Richard M.
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Evans, Assistant Director, and John L. Davis, Attorney, Office of
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Immigration Litigation, on brief for respondent.
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July 28, 1994
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Per Curiam. Petitioner seeks review of a final
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order of deportation by the Board of Immigration Appeals
(BIA). His sole argument on appeal is that the BIA erred in
finding him deportable under the Immigration and Nationality
Act, 8 U.S.C. 1251(a)(2)(A)(ii), because he had been
convicted of two crimes of moral turpitude "not arising out
of a single scheme of criminal misconduct." Petitioner
argues that his convictions should be construed as arising
from a "single scheme" because they were part of a continuing
criminal enterprise. He asserts that his crimes thus
"morally constitute only a single wrong."
Petitioner pled guilty in a United States district
court to one count of conspiracy to commit mail fraud, and
three counts of mail fraud. The indictment charged that from
about April 1, 1989 to October 16, 1991, he conspired with
others to use the mails to submit false accident reports and
claims to various insurance companies. The specific acts of
fraud to which petitioner pled guilty occurred on three
separate dates: October 16, 1990, October 21, 1991 and
November 15, 1991. The crimes involved three different
insurance companies, separate locations, and the use by
petitioner of three different aliases.1 Petitioner's 33-
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1. Petitioner does not deny the accuracy of the facts
recited in the indictment. At the deportation hearing he
admitted participating in the filing of 124 false accident
reports, and receiving $217,000 therefrom.
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month sentence was affirmed on appeal. United States v.
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Balogun, 989 F.2d 20 (1st Cir. 1993).
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In Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976),
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cert. denied, 430 U.S. 985 (1977), we interpreted the meaning
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of the statutory language "single scheme" in light of the
purpose of the Act, accepting that the intent of Congress was
to give "a one-time alien offender . . . a second chance
before he could be deported." Pacheco, 546 F.2d at 451.
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To us this suggests that a scheme, to be 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.
. . . .
Our present thinking is that both the purpose of
the statute and the use of the adjective "single"
point to a temporally integrated episode of
continuous activity. When the immediate activity
has ended, even though a "scheme" calls for future
activity a participant has his second chance to
make a decision. He need not further pursue a
multistage scheme.
Id. at 451-52.
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Petitioner implicitly recognizes that under Pacheco
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his crimes cannot be characterized as a "single scheme." He
argues, however, that this court should apply the more
"expansive definition" adopted by the Ninth Circuit. In
Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990), the
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Ninth Circuit reaffirmed the approach it had adopted in Wood
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v. Hoy, 266 F.2d 825 (9th Cir. 1959), holding that the
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government had not disproved the existence of a single scheme
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where uncontradicted, credible evidence showed that the two
predicate crimes were planned at the same time and executed
according to the plan. Older cases from the Second and Third
Circuits suggest a similarly expansive definition. See Nason
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v. INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830
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(1968); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).
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In Pacheco, however, we rejected the approach
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upon which petitioner relies. Moreover, in Matter of
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Adetiba, Interim Dec. 3177, 1992 WL 195812 (B.I.A. May 22,
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1992), the BIA declined to adopt the Ninth Circuit's
"expansive definition," fearing that it might insulate from
deportability aliens who formulate a plan to commit many
separate crimes, while deporting those who commit two crimes
without a plan. That result, the BIA said, would be absurd.
Adetiba, 1992 WL 195812, at *5. The BIA characterized
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Pacheco as following most closely its own analysis, and
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decided that except in jurisdictions where a circuit court
has ruled otherwise, it would interpret the statute as
follows:
[T]he statutory 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.
Id. at *5. Since then, the Fifth and Tenth Circuits have
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upheld the BIA's definition as a reasonable interpretation of
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the law. See Thanh Huu Nguyen v. INS, 991 F.2d 621 (10th
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Cir. 1993) (adopting the BIA's definition after giving due
deference to the agency's interpretation of ambiguous law as
required by Chevron, U.S.A., Inc. v. Natural Resources
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Defense Council, Inc., 467 U.S. 837 (1984)); Iredia v. INS,
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981 F.2d 847 (5th Cir.) (same), cert. denied, 114 S. Ct. 203
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(1993).
In this case petitioner's separate crimes involved
separate acts, different victims, and occurred on widely
separated dates. Petitioner had ample opportunity between
crimes to change direction. Accordingly, his convictions do
not arise from a "single scheme" as defined in Pacheco and
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Adetiba. We need not decide how a more expansive definition
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might affect this case, because petitioner offers no
persuasive reason for deviating from our own longstanding
interpretation and the majority of recent decisions.
The order of the Board of Immigration Appeals is
affirmed.
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Document Info
Docket Number： 94-1011
Filed Date： 8/1/1994
Precedential Status： Precedential
Modified Date： 9/21/2015