Istvan Szonyi v. Matthew Whitaker , 915 F.3d 1228 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISTVAN SZONYI, No. 15-73514
Petitioner,
Agency No.
v. A010-977-327
MATTHEW G. WHITAKER,
Acting Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 10, 2018
Portland, Oregon
Filed February 13, 2019
Before: Raymond C. Fisher, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Fisher
2 SZONYI V. WHITAKER
SUMMARY*
Immigration
Denying Istvan Szonyi’s petition for review of a decision
of the Board of Immigration Appeals, the panel upheld the
BIA’s interpretation of the phrase, “single scheme of criminal
misconduct,” which operates as an exception to the ground of
removal, under 8 U.S.C. § 1227(a)(2)(A)(ii), for a person who
has been convicted of “two or more crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct.”
In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the
BIA affirmed the following interpretation of the phrase
“single scheme of criminal misconduct”: “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 BIA
said that it would apply this interpretation in all circuits
except those that had adopted more expansive interpretations.
That exception applied to this circuit, whose previous
interpretation of the phrase encompassed distinct crimes that
were part of the same overall plan. However, in Matter of
Islam, 25 I. & N. Dec. 637 (BIA 2011), the BIA announced
that it would apply the interpretation from Matter of Adetiba
in all circuits.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SZONYI V. WHITAKER 3
Szonyi, a lawful permanent resident, forced three women
to commit sexual acts under threat of violence over a five- to
six-hour period. For those acts, Szonyi pled guilty to two
counts of oral copulation in violation of California Penal
Code § 288a(c) and two counts of sexual penetration with a
foreign object in violation of California Penal Code § 289.
Based on these offenses, the BIA ultimately concluded that
Szonyi was removable because his crimes did not arise out of
a single scheme under BIA precedent.
The panel rejected Szonyi’s argument that this court’s
precedent forecloses the BIA’s interpretation of the phrase
“single scheme of criminal misconduct,” upholding the BIA’s
interpretation under principles of deference under Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984). As a preliminary matter, the panel concluded that,
because the BIA’s position appeared to be set based on its
opinion in Matter of Islam at the time of Szonyi’s
proceedings, Szonyi did not have to exhaust his challenge to
the BIA’s interpretation.
Observing that, under Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967 (2005), the court does
not defer, under Chevron, where a prior court decision holds
that its construction follows from the unambiguous terms of
the statute, the panel concluded that no circuit precedent held
that the text of the statute unambiguously foreclosed the
BIA’s interpretation here. The panel also rejected Szonyi’s
contentions that the BIA’s interpretation was impermissible
based on congressional intent and constitutional avoidance.
With respect to the latter issue, the panel explained that the
Supreme Court’s recent vagueness jurisprudence is
distinguishable from the present case.
4 SZONYI V. WHITAKER
The panel also rejected Szonyi’s argument that, even if
the BIA’s construction of the statute was permissible, the
agency could not retroactively apply that standard to this
case. Analyzing the relevant factors set out by Montgomery
Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel
concluded that, on balance, the retroactive application of the
BIA’s interpretation was not improper. The panel further
rejected Szonyi’s argument that, even under BIA precedent
he was not removable, concluding that the BIA’s analysis was
consistent with its precedent.
Finally, the panel upheld the agency’s denial of
discretionary relief, rejecting Szonyi’s contention that the
BIA failed to consider all favorable and unfavorable factors
bearing on his eligibility.
Dissenting, Judge Fisher disagreed with the majority’s
conclusion that the BIA reasonably applied its precedent to
this case. Judge Fisher wrote that BIA precedent squarely
holds that two or more crimes committed during a single
criminal episode arise from a single scheme of criminal
conduct unless they are marked by a “substantial interruption
that would allow the participant to disassociate himself from
his enterprise and reflect on what he has done” between
crimes. Judge Fisher would grant the petition for review and
remand to the BIA for an adequate explanation because it
cannot be discerned from the record whether or how the BIA
applied this precedent in this case, where the petitioner’s
crimes were part of a single and continuous criminal episode,
and there was nothing in the record to suggest there was a
“substantial interruption” between the crimes.
SZONYI V. WHITAKER 5
COUNSEL
David Timothy Raimer (argued), Jones Day, Washington,
D.C.; Meir Feder, Jones Day, New York, New York; for
Petitioner.
Leslie McKay (argued), Senior Litigation Counsel; Terri J.
Scadron, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Jennifer Lee Koh and Andrew Michael Knapp, Western State
College of Law, Irvine, California, for Amicus Curiae
American Immigration Lawyers Association.
OPINION
CLIFTON, Circuit Judge:
Istvan Szonyi petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) upholding a final
order of removal against him. This case presents the question
of whether the BIA permissibly interpreted the phrase “single
scheme of criminal misconduct” under 8 U.S.C.
§ 1227(a)(2)(A)(ii). In that statute, the phrase operates as an
exception to a ground for removal. Specifically, the statute
provides that a person is deportable if he has been convicted
of “two or more crimes involving moral turpitude, not arising
out of a single scheme of criminal misconduct.” We
previously adopted a different, broader interpretation of the
phrase in Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), an
interpretation we reaffirmed in Gonzalez-Sandoval v. INS,
910 F.2d 614 (9th Cir. 1990), and Leon-Hernandez v. INS,
6 SZONYI V. WHITAKER
926 F.2d 902 (9th Cir. 1991). Because the phrase in question
operates as an exception to a ground for deportation, the
BIA’s narrower definition of the exception serves to broaden
the application of the removal provision, making Szonyi
subject to removal when he might not have been under our
previous definition.
We uphold the BIA’s interpretation under the principles
of Chevron deference that apply when the BIA interprets
immigration laws. See Chevron U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). We also conclude
that the BIA properly applied this interpretation here, and that
this application was not impermissibly retroactive. In
addition, we uphold the BIA’s denial of discretionary relief,
acknowledging the limitations on judicial review of
discretionary decisions. See 8 U.S.C. § 1252(a)(2)(B)(i).
Accordingly, we deny Szonyi’s petition for review.
I. Background
Szonyi is a citizen of Hungary who was admitted to the
United States as a lawful permanent resident in 1957, when
he was four years old. In 1981, after a day of heavy drinking,
he forced three women to commit sexual acts under threat of
violence over a five- to six-hour period. For those acts,
Szonyi pled guilty to two counts of oral copulation in
violation of California Penal Code § 288a(c) and two counts
of sexual penetration with a foreign object in violation of
California Penal Code § 289. Based on these offenses, the
government commenced removal proceedings against Szonyi
in 2005, eventually charging him as removable because he
had been convicted of “two or more crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct” under 8 U.S.C. § 1227(a)(2)(A)(ii).
SZONYI V. WHITAKER 7
The immigration judge (“IJ”) sustained that charge. In a
written order filed on September 19, 2011, the IJ found
Szonyi removable because his predicate crimes involved
moral turpitude and did not arise out of a single scheme of
criminal misconduct under Ninth Circuit precedent. The IJ
also determined that the positive equities in Szonyi’s case did
not offset his adverse criminal history and therefore denied
his request for a waiver of inadmissibility and cancellation of
removal. The IJ ordered Szonyi’s removal to Hungary, and
Szonyi timely appealed to the BIA.
While Szonyi’s appeal was pending, the BIA issued a
precedential opinion in Matter of Islam, 25 I. & N. Dec. 637(BIA 2011), which announced that the BIA would apply its
preferred interpretation of “single scheme of criminal
misconduct” in all circuits, including those that had
previously interpreted that phrase more expansively. Id. at
641. In light of Matter of Islam, the BIA remanded Szonyi’s
appeal to the IJ for analysis under the BIA’s “single scheme”
jurisprudence.
On remand, the IJ again found Szonyi removable because
his crimes did not arise out of a single scheme under BIA
precedent. The IJ also incorporated by reference her earlier
decision (1) finding Szonyi removable under the Ninth
Circuit’s standard and (2) denying discretionary relief. The
BIA affirmed, finding Szonyi removable under the BIA’s
interpretation of the single scheme exception. The BIA also
agreed with the IJ that Szonyi did not merit discretionary
relief.
Szonyi filed a timely petition for review.
8 SZONYI V. WHITAKER
II. Removability
Szonyi challenges the BIA’s conclusion that he is
removable because he has been convicted of “two or
more crimes involving moral turpitude, not arising out of
a single scheme of criminal misconduct.” 8 U.S.C.
§ 1227(a)(2)(A)(ii). Szonyi argues that (1) the BIA’s
interpretation of the Immigration and Nationality Act
(“INA”) is foreclosed by Ninth Circuit precedent; (2) the
BIA’s interpretation is unreasonable; (3) even if the BIA’s
interpretation is permissible, it cannot be applied to him
retroactively; and (4) even if the BIA’s interpretation is
permissible, the BIA misapplied that interpretation to the
facts of his case. We are not persuaded by any of these
arguments.
1. BIA Interpretation of “Single Scheme of Criminal
Misconduct”
In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the
BIA affirmed its longstanding interpretation of “single
scheme of criminal misconduct” under § 1227(a)(2)(A)(ii),
which it said would apply in all circuits except those that had
adopted their own more expansive interpretation of the term.
Id. at 510. The BIA’s interpretation was that:
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.
SZONYI V. WHITAKER 9
Id. at 509. As noted above, the BIA later announced it would
apply the Adetiba standard uniformly across all circuits in
Matter of Islam, 25 I. & N. Dec. at 641. Szonyi argues that
Ninth Circuit precedent forecloses the BIA’s interpretation.
As a preliminary matter, the government argues that this
court lacks jurisdiction to consider the permissibility of the
BIA’s interpretation because Szonyi failed to exhaust this
argument before the BIA. A petitioner’s failure to raise an
argument before the BIA generally constitutes a failure to
exhaust, thus depriving this court of jurisdiction to consider
the issue. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th
Cir. 2004). However, “[s]ome issues may be so entirely
foreclosed by prior BIA case law that no remedies are
‘available … as of right’ with regard to them before IJs and
the BIA.” Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004).
Where the agency’s position “appears already set” and
recourse to administrative remedies is “very likely” futile,
exhaustion is not required. El Rescate Legal Servs., Inc. v.
Exec. Office of Immigration Review, 959 F.2d 742, 747 (9th
Cir. 1991). Because the BIA’s position appeared set based on
its precedential opinion in Matter of Islam, 25 I. & N. Dec.
637, Szonyi did not have to exhaust his challenge to the
BIA’s interpretation, and we have jurisdiction to review his
claim.
We review legal questions de novo. Chavez-Garcia v.
Sessions, 871 F.3d 991, 995 (9th Cir. 2017). When
considering the BIA’s interpretation of the INA as set forth in
a published BIA opinion, we follow the two-step Chevron
framework. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815
(9th Cir. 2016).
10 SZONYI V. WHITAKER
Under Chevron, we first ask “whether Congress has
directly spoken to the precise question at issue.” 467 U.S. at
842. If Congress has done so, the court “must give effect to
the unambiguously expressed intent of Congress.” Id. at 843.
If Congress has not specifically addressed the question, the
court must defer to the agency’s interpretation if it is “based
on a permissible construction of the statute.” Id. This is true
even if there is contrary circuit precedent, unless “the prior
court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 982 (2005). Although this
circuit previously interpreted “single scheme” more broadly
than the BIA, no circuit precedent forecloses the BIA’s
interpretation.
Szonyi argues that this court concluded in Wood, 266
F.2d 825, that the BIA’s interpretation is incompatible with
the language of the statute. In Wood, we rejected the BIA’s
interpretation as “not what the statute says” because the BIA
“applied the statute as if it read ‘single criminal act’” rather
than “single scheme of criminal misconduct.” 266 F.2d at
830. Our decision also noted, however, that the INA did not
itself define the term, and that the legislative history did not
shed any light on Congress’s intent in drafting the provision.
Id. at 828–29. We therefore interpreted the phrase for
ourselves.
Subsequent cases have interpreted Wood as establishing
this circuit’s precedent that:
where credible, uncontradicted evidence,
which is consistent with the circumstances of
the crimes, shows that the two predicate
SZONYI V. WHITAKER 11
crimes were planned at the same time and
executed in accordance with that plan, we
must hold that the government has failed in its
burden to establish that the conviction did not
arise out of “a single scheme of criminal
misconduct” within the meaning of [the INA].
Gonzalez-Sandoval, 910 F.2d at 616. Thus, in contrast to the
BIA’s approach, our previous interpretation of “single
scheme of criminal misconduct” encompassed distinct crimes
that were part of the same overall plan.
Wood was decided before Chevron, so we did not in that
decision have reason to apply the Chevron framework and did
not specifically comment on the ambiguity of the statutory
text under Chevron step one. We did not say, though, that our
interpretation “follow[ed] from the unambiguous terms of the
statute,” which would foreclose the agency’s approach under
Brand X, 545 U.S. at 982. See Wood, 266 F.2d at 828–29. The
Wood decision likewise did not directly address the
reasonableness of the BIA’s approach under Chevron step
two other than to reject it in favor of our court’s own
interpretation. Id. at 830. Our rationale for the conclusion was
our own interpretation of the text, the absence of useful
legislative history, and resolution of any interpretive doubt in
favor of the alien where deportation might result. Id.Szonyi also cites two post-Chevron cases that reaffirmed
Wood’s interpretation of “single scheme,” but neither case
considered the permissibility of the BIA’s interpretation. In
Gonzalez-Sandoval, we reversed a BIA decision that relied on
the First Circuit’s standard rather than the Wood standard in
interpreting “single scheme.” 910 F.2d at 615. In Leon-
Hernandez, we mentioned the standards from Wood and
12 SZONYI V. WHITAKER
Gonzalez-Sandoval in affirming the BIA’s decision without
mentioning any different BIA standard. 926 F.2d at 905. In
sum, contrary to Szonyi’s argument, there is no circuit
precedent holding that the text of the statute unambiguously
forecloses the BIA interpretation.
Our decision here is consistent with the decisions of other
circuits that have considered the BIA’s interpretation after
Chevron. See, e.g., Balogun v. INS, 31 F.3d 8 (1st Cir. 1994);
Chavez-Alvarez v. Attorney Gen. United States, 850 F.3d 583(3d Cir. 2017); Akindemowo v. 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).
The Fourth Circuit noted in 1995, when it accepted the
BIA’s interpretation, that at the time only the Second, Third,
and Ninth Circuits did not follow the BIA’s interpretation.
Akindemowo, 61 F.3d at 286. In 2000, the Second Circuit
called into question its contrary pre-Chevron interpretation
and effectively appeared to join the circuits following the
BIA’s interpretation in Michel v. INS, 206 F.3d 253 (2d Cir.
2000). The majority in Michel concluded that it did not need
to decide whether the BIA’s “single scheme” interpretation
was reasonable under Chevron, but it specifically noted that
the precedent in which it had stated its different interpretation
of the statute, Nason v. INS, 394 F.2d 223 (2d Cir.1968), was
decided before Chevron. It further noted that it had “held, in
post-Chevron cases, that the BIA is entitled to deference
when interpreting other provisions of the Immigration and
Nationality Act, as long as those interpretations are
reasonable.” 206 F.3d at 260. Judge Cabranes wrote
separately to argue that the BIA interpretation of the relevant
statute was entitled to deference and should be so recognized
SZONYI V. WHITAKER 13
formally. Id. at 266 (Cabranes, J., concurring). As for the
Third Circuit, in 2017 that court “join[ed its] fellow Courts in
concluding that the BIA’s interpretation is reasonable.”
Chavez-Alvarez, 850 F.3d at 587. We alone remain.
2. Reasonableness of BIA Interpretation
Szonyi further argues that even if the BIA’s interpretation
is not foreclosed by circuit precedent, it is impermissible
based on congressional intent and constitutional avoidance.
As noted above, we already determined in Wood that the
legislative history did not shed any light on Congress’s intent
regarding this provision. 266 F.2d at 828–29.
We are also unpersuaded by the arguments raised by
Szonyi and amicus that the canon of constitutional avoidance
requires a different interpretation. The Supreme Court’s
recent vagueness jurisprudence is distinguishable from the
present case because those cases focused on the abstract
nature of the residual clause inquiry. See Johnson v. United
States, 135 S. Ct. 2551, 2557–58 (2015) (holding that a
provision of the Armed Career Criminal Act was
unconstitutionally vague because judicial assessment of risk
was tied to “a judicially imagined ‘ordinary case’ of a crime,
not to real-world facts or statutory elements” and
“indeterminacy about how to measure the risk posed by a
crime [was combined] with indeterminacy about how much
risk it takes for the crime to qualify as a violent felony”);
Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018) (striking
down a similar provision because it “has the same ‘[t]wo
features’ that ‘conspire[d] to make [ACCA’s residual clause]
unconstitutionally vague’” (alterations in original)). Because
the “single scheme” exception is not tied to a judicially-
imagined “ordinary case” and instead relies on a case-specific
14 SZONYI V. WHITAKER
determination, it does not present the same uncertainty
concerns the Supreme Court identified in Johnson and
Dimaya.
3. Retroactive Application of the BIA Standard
Szonyi argues that even if the BIA approach is a
permissible construction of the statute, the agency cannot
retroactively apply that standard in this case. Under our test
for retroactivity, we consider:
(1) whether the particular case is one of first
impression, (2) whether the new rule
represents an abrupt departure from well
established practice or merely attempts to fill
a void in an unsettled area of law, (3) the
extent to which the party against whom the
new rule is applied relied on the former rule,
(4) the degree of the burden which a
retroactive order imposes on a party, and
(5) the statutory interest in applying a new
rule despite the reliance of a party on the old
standard.
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th
Cir. 1982). Applying this test, we conclude that the BIA’s
application of its standard to Szonyi’s case was permissible.
We have recognized that the first factor “is not well suited
for immigration rulings.” Acosta-Olivarria v. Lynch, 799 F.3d
1271, 1275 (9th Cir. 2015). The parties agree that it is
irrelevant here.
SZONYI V. WHITAKER 15
“The second and third factors are intertwined” and “will
favor retroactivity if a party could reasonably have
anticipated the change in the law such that the new
requirement would not be a complete surprise.” Lemus v.
Lynch, 842 F.3d 641, 649 (9th Cir. 2016) (quotations
omitted). Szonyi notes that at the time he pled guilty, courts
in most jurisdictions applied a more expansive interpretation
of “single scheme of criminal misconduct” than the one the
BIA adopted in Matter of Islam and applied here. See Matter
of Adetiba, 20 I. & N. Dec. at 510. As of then, however, the
BIA itself had consistently applied its own narrower
approach. It was not until 1992, a decade after Szonyi pled
guilty, that the BIA announced that it would only apply its
interpretation outside circuits, like the Ninth Circuit, that had
adopted a more expansive interpretation. Id. at 511. Thus, at
the time Szonyi pled guilty, it could reasonably have been
anticipated that the BIA would apply its own interpretation.
On balance, the second and third factors favor the
government.
In immigration cases, we have held that “the fourth factor
favors non-retroactive application because deportation is
unquestionably a substantial burden.” Martinez-Cedillo v.
Sessions, 896 F.3d 979, 994 (2018). The government argues
Szonyi would be removable even under the Ninth Circuit’s
single-scheme jurisprudence. But there is “a clear difference,
for the purposes of retroactivity analysis, between facing
possible deportation and facing certain deportation.” I.N.S.
v. St. Cyr, 533 U.S. 289, 325 (2001). Therefore, to the extent
there was any uncertainty about Szonyi’s removability under
the Ninth Circuit standard but no such ambiguity under the
BIA standard, the fourth factor favors Szonyi.
16 SZONYI V. WHITAKER
The fifth factor generally favors the government “because
non-retroactivity impairs the uniformity of a statutory
scheme, and the importance of uniformity in immigration law
is well established.” Garfias-Rodriguez v. Holder, 702 F.3d
504, 523 (9th Cir. 2012).
In sum, the second, third, and fifth factors favor
retroactive application of the BIA interpretation, while the
fourth factor favors Szonyi. On balance, we conclude that the
retroactive application of the BIA’s interpretation was not
improper. See Martinez-Cedillo, 896 F.3d at 994 (holding
retroactive application permissible based on the same balance
of factors).
4. The BIA’s Application of Its Standard
Szonyi further argues that even under BIA precedent he
should not be removable. The BIA did not directly address
the cases Szonyi has cited to us, probably because Szonyi did
not raise them before the BIA, but it is not hard to infer the
distinctions that the BIA presumably would have drawn. We
conclude that the BIA’s analysis was consistent with its
precedent.
The BIA started its analysis by citing the interpretation of
the relevant language set out in Matter of Adetiba, 20 I. & N.
Dec. at 509–11. It then agreed with the IJ’s finding that
Szonyi’s offenses against multiple victims over the course of
six hours did not fall within a single scheme because, quoting
from the IJ’s decision, “the acts, though similar in character,
[were] distinct, because the commission of one can occur
without the commission of the other.” The BIA also noted
that the crimes did not constitute lesser included offenses of
another crime and were not a natural consequence of a single
SZONYI V. WHITAKER 17
act of criminal misconduct. While the BIA noted that
Szonyi’s convictions covered conduct occurring on the same
day in the same location, it observed “that the crimes
occurred over a period of 6 hours did not deprive the
respondent of an opportunity to reflect upon one crime before
committing another.” Id.
The BIA’s conclusion was consistent with its statement in
Matter of Adetiba that its prior cases had treated “single
scheme” as “meaning there must be no substantial
interruption that would allow the participant to disassociate
himself from his enterprise and reflect on what he has done.”
20 I. & N. Dec. at 509–10. The dissent concludes we cannot
discern whether or how the BIA applied this standard.
However, the BIA explicitly concluded that “[a]fter the abuse
of any one victim, the respondent had the opportunity to
cease his activities and reflect on what he had done.” The
dissent finds it significant that the BIA did not say there was
a “substantial interruption” between the crimes, but the BIA
has qualified that term as one that would allow the respondent
to “reflect on what he has done.” Matter of Adetiba, 20 I & N.
Dec. at 509–10. The BIA found that Szonyi had such an
opportunity here, and “[t]he BIA’s factual findings are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Villavicencio v.
Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018). We do not
read the record as compelling a conclusion that Szonyi had no
opportunity to reflect on his acts over a period of five or six
hours while subjecting three separate women to
nonconsensual sexual acts.
Szonyi argues that the BIA previously interpreted “single
scheme” to include all crimes “performed in furtherance of a
single criminal episode.” He contends that all of his acts were
18 SZONYI V. WHITAKER
“in furtherance of a single criminal episode” that began when
he pulled out a gun and continued for the next six hours as he
performed nonconsensual sexual acts with multiple women.
In quoting from BIA precedent, however, Szonyi omits the
remainder of the relevant sentences, which clarify the
meaning of “single criminal episode.” Both Matter of Islam
and Matter of Adetiba define “single scheme” as acts
“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.” See Matter of Islam,
25 I. & N. Dec. at 639; Matter of Adetiba, 20 I. & N. Dec. at
511. The BIA applied that standard here, describing “single
criminal episode” as including “where one crime is a lesser
included offense of another or two crimes ‘flow from and are
the natural consequence of a single act of criminal
misconduct.’”
Szonyi also argues that the BIA’s conclusion in this case
is at odds with the discussion in other precedential BIA cases
of what constitutes a “single scheme,” including “convictions
for indecent fondling of two minors in the same room at the
same time,” see Matter of Z-, 8 I. & N. Dec. 170, 175 (BIA
1958); situations where “A, B, & C are robbed by the alien at
the same time,” see Matter of B-, 8 I. & N. Dec. 236, 239
(BIA 1958); and convictions for assault with intent to do
great bodily harm and manslaughter where the alien
(1) pushed his mother-in-law down the stairs, then a few
minutes later (2) stabbed his wife with a knife, Matter of
Pataki, 15 I. & N. Dec. 324, 326 (BIA 1975). Szonyi argues
that in light of these decisions, the BIA erred in treating as
irrelevant the fact that Szonyi’s convictions covered conduct
occurring on the same day.
SZONYI V. WHITAKER 19
The BIA had previously made clear that the fact that
multiple crimes occurred on the same day did not mean that
they were necessarily part of a single scheme. See, e.g.,
Matter of D-, 5 I. & N. Dec. 728, 729 (BIA 1954) (“The fact
that one [crime] may follow the other closely, even
immediately, in point of time is of no moment.”). The cases
Szonyi cited to us were all distinguishable based on their
facts. For example, in Matter of Pataki, the BIA concluded
that convictions for assault and manslaughter against separate
victims constituted a “single scheme” because they “were
committed within a few minutes of each other as the result of
the same criminal impulse in the course of the same episode.”
15 I. & N. Dec. at 325–26. As the Board described, the
crimes occurred when, in a “rage, the [alien] pushed his
mother-in-law down the stairs. The rage continued to the
point that a few minutes later, he went for a knife and then
stabbed his wife.” Id. at 326. That two crimes committed
within a few minutes of each other as part of one rage were
held to fall within the same scheme does not mean that sexual
crimes committed over a span of six hours against separate
victims necessarily fell within a single scheme. Similarly,
while both Matter of Z-, 8 I. & N. Dec. at 175, and Matter of
B-, 8 I. & N. Dec. at 239, described acts occurring “at the
same time” or “one time,” the time period was not more
specifically defined in either case. The BIA could have
reasonably concluded those episodes were distinguishable
from crimes committed over six hours.
Although the BIA did not specifically distinguish
Szonyi’s case from these other decisions, it is understandable
that it did not do so where Szonyi failed to argue before the
BIA that his case was comparable to those cases or to any of
its precedents. The dissent concludes that Szonyi’s brief to
the BIA clearly placed the issue of substantial interruption
20 SZONYI V. WHITAKER
before the BIA by citing Matter of Adetiba and Matter of
Islam, but the BIA also directly followed the tests laid out in
those opinions to conclude that Szonyi’s acts did not fall
within a single scheme. The BIA should not be faulted for not
distinguishing additional cases that Szonyi did not raise
before the agency when he had the opportunity.
III. Discretionary Relief
Szonyi applied for two forms of discretionary relief:
waiver of inadmissibility under former section 212(c) of the
INA, 8 U.S.C. § 1182(c), and cancellation of removal under
8 U.S.C. § 1229b(a). This court lacks jurisdiction to review
the merits of a discretionary decision to deny cancellation of
removal, but it does have jurisdiction to review whether the
IJ considered relevant evidence in making this decision.
Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).
“[T]he BIA abuses its discretion when it fails to consider all
favorable and unfavorable factors bearing on a petitioner’s
application for § 212(c) relief.” Zheng v. Holder, 644 F.3d
829, 833 (9th Cir. 2011).
Szonyi argues that the BIA failed to consider all favorable
and unfavorable factors bearing on his eligibility for waiver
of inadmissibility and cancellation of removal. In making this
argument, Szonyi only looks to the BIA’s reasoning, arguing
that this court’s review is limited to the BIA decision because
the BIA conducted de novo review of the IJ’s decision.
Szonyi is correct that when the BIA reviews questions of
discretion de novo under 8 C.F.R § 1003.1(d)(3)(ii), this
court’s review is limited to the BIA’s decision, “except to the
extent that the BIA expressly adopted the IJ’s decision.”
Vilchez, 682 F.3d at 1199.
SZONYI V. WHITAKER 21
Here, the BIA announced it was conducting de novo
review but also acknowledged “that the Immigration Judge
adequately and correctly considered and addressed the
respondent’s equities and the adverse factors contained in the
record.” We may look to the IJ’s decision when “the BIA
incorporates parts of the IJ’s reasoning as its own.” Aguilar-
Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). This
court has also reviewed the IJ’s decision, and the BIA’s
opinion appeared to adopt the IJ’s decision by giving
examples from it. See Morgan v. Mukasey, 529 F.3d 1202,
1206 (9th Cir. 2008). The IJ expressly considered in her first
decision and explicitly incorporated into her second decision
the positive equities Szonyi claims the BIA erroneously failed
to consider.
Even if the IJ’s opinion were disregarded, this court
generally presumes that the BIA thoroughly considers all
relevant evidence in the record. Larita-Martinez v. INS,
220 F.3d 1092, 1095–96 (9th Cir. 2000); see also Cole v.
Holder, 659 F.3d 762, 771 (9th Cir. 2011) (“When nothing in
the record or the BIA's decision indicates a failure to consider
all the evidence, a ‘general statement that [the agency]
considered all the evidence before [it]’ may be sufficient.”
(citation omitted, alterations in original)). Here, the BIA
generally recognized “positive equities in [Szonyi’s] favor”
and specifically recognized that these included his lengthy
residence in the country, military service, steady
employment, payment of taxes, charitable work, citizen sister,
and various physical disabilities that require medical
treatment. Given the general presumption that the BIA
considered all relevant factors, the BIA did not abuse its
discretion in denying relief.
22 SZONYI V. WHITAKER
IV. Conclusion
The petition for review is denied.
PETITION FOR REVIEW DENIED.
FISHER, Circuit Judge, dissenting:
I agree with much of the majority opinion but disagree
with the majority’s conclusion that the Board of Immigration
Appeals (BIA) reasonably applied its precedent to this case.
Maj. Op. 16–19. BIA precedent squarely holds that two or
more crimes committed during a single criminal episode arise
from a single scheme of criminal conduct, and hence do not
render an individual removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii), unless they are marked by a “substantial
interruption that would allow the participant to disassociate
himself from his enterprise and reflect on what he has done”
between crimes. Matter of Adetiba, 20 I. & N. Dec. 506,
509–10 (BIA 1992) (emphasis added). Because we cannot
discern whether or how the BIA applied this precedent in this
case, where the petitioner’s crimes were part of a single and
continuous criminal episode, and there is nothing in the
record to suggest there was a “substantial interruption”
between the crimes, I would grant the petition for review and
remand to the BIA for an adequate explanation. See Eneh v.
Holder, 601 F.3d 943, 947–48 (9th Cir. 2010). Although our
review of BIA decisions is limited and deferential, we may
not deny a petition for review where, as here, we are left to
speculate as to the BIA’s reasoning, and where we cannot
discern from the record whether the BIA misapplied its own
precedent. See Alphonsus v. Holder, 705 F.3d 1031, 1049
SZONYI V. WHITAKER 23
(9th Cir. 2013), abrogation on other grounds recognized by
Guerrero v. Whitaker, 908 F.3d 541, 544 (9th Cir. 2018). I
therefore respectfully dissent.
I
Istvan Szonyi was admitted to the United States, at the
age of four or five, in 1957. In 1981, he was convicted of
four criminal offenses involving two victims – two counts of
unlawful oral copulation in violation of California Penal Code
§ 288a(c) and two counts of unlawful penetration in violation
of California Penal Code § 289. He was sentenced to
12 years in prison, and released from prison in 1988.
The record tells us that Szonyi’s offenses arose out of a
single, continuous and horrific criminal episode: Szonyi
invited three women into his nearby place of work, where he
threatened, abused and degraded them over a period of five
or six hours. The record does not, however, reveal when
during this five or six hour period the four criminal offenses
for which Szonyi was convicted occurred. Nor does it
explain how much time elapsed between the offenses, or
whether there was a substantial interruption between them.
In 2005, the Department of Homeland Security
commenced removal proceedings against Szonyi. Relying on
the 1981 convictions, the government charged Szonyi with
being removable under 8 U.S.C. § 1227(a)(2)(A)(ii), which
states:
Any alien who at any time after admission is
convicted of two or more crimes involving
moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of
24 SZONYI V. WHITAKER
whether confined therefor and regardless of
whether the convictions were in a single trial,
is deportable.
8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis added). The BIA
agreed with the government that Szonyi was removable
because he was convicted of multiple offenses of moral
turpitude “not arising from a single scheme.” Szonyi timely
petitioned for review. The majority would deny the petition.
I would grant it.
II
The term “arising out of a single scheme of criminal
misconduct” is not defined by the Immigration and
Nationality Act. The BIA, however, has defined the term in
a series of precedential decisions, holding that, “to be a
‘single scheme,’ the scheme must take place at one time,
meaning there must be no substantial interruption that would
allow the participant to disassociate himself from his
enterprise and reflect on what he has done.” Matter of
Adetiba, 20 I. & N. Dec. at 509–10 (emphasis added); accord
Matter of Islam, 25 I. & N. Dec. 637, 640, 642 (BIA 2011).
In adopting this substantial interruption rule, the Board
followed the First Circuit’s decision in Pacheco v. INS,
546 F.2d 448 (1st Cir. 1976). See Matter of Adetiba, 20 I. &
N. Dec. at 509–11. In Pacheco, the First Circuit held that
“the intent of Congress in [adopting the ‘single scheme’
language] was to give ‘a one-time alien offender . . . a second
chance before he could be deported.’” Pacheco, 546 F.2d at
451 (second alteration in original) (quoting Nason v. INS,
394 F.2d 223, 227 (2d Cir. 1968)). Thus, “a scheme, to be a
‘single scheme’, must take place at one time; there must be
SZONYI V. WHITAKER 25
no substantial interruption that would allow the participant to
disassociate himself from his enterprise and reflect on what
he has done.” Id. The court explained 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.” Id. at 452.
The Board also cited its own decision in Matter of Pataki,
15 I. & N. Dec. 324 (BIA 1975), as exemplifying the
substantial interruption rule. See Matter of Adetiba, 20 I. &
N. Dec. at 510. In Matter of Pataki, 15 I. & N. Dec. at 325,
the respondent pled guilty to two crimes occurring on the
same day – an assault on his mother-in-law and a subsequent
assault on his wife. The BIA sustained the immigration
judge’s conclusion that the two crimes were part of a “single
scheme of criminal misconduct”:
This evidence indicates that the crimes for
which the respondent was convicted stem
from a marriage problem. In his rage, the
respondent pushed his mother-in-law down
the stairs. The rage continued to the point that
a few minutes later, he went for a knife and
then stabbed his wife. We are satisfied that
both crimes were committed within a few
minutes of each other as the result of the same
criminal impulse in the course of the same
episode. This evidence is probative of the
existence of a single scheme.
Id. at 326.
26 SZONYI V. WHITAKER
Szonyi invoked the BIA’s “substantial interruption”
precedent here. Citing Matter of Adetiba and Matter of Islam,
he correctly argued in his brief to the BIA that “for a course
of criminal misconduct to constitute a single scheme it must
take place at one time with no substantial interruption that
would provide the perpetrator the opportunity to disassociate
himself and reflect on the criminal enterprise.”
Administrative Record 11. He then argued that the criminal
acts he committed constituted a “single scheme of criminal
misconduct,” because “there was no substantial interruption”
that would have allowed him “to disassociate himself from
his enterprise.” Id. at 12–13.
The BIA did not meaningfully address this argument. To
be sure, the Board said in a conclusory fashion that Szonyi
had an opportunity between offenses to reflect on what he had
done and to disassociate himself from the criminal enterprise:
[T]hat the crimes occurred over a period of
6 hours did not deprive the respondent of an
opportunity to reflect upon one crime before
committing another. After the abuse of any
one victim, the respondent had the
opportunity to cease his activities and reflect
on what he had done. Accordingly, the
respondent was convicted of multiple offenses
of moral turpitude not arising from a single
scheme.
But the BIA did not provide any basis for concluding that
Szonyi had an opportunity to reflect upon one crime before
committing another. Significantly, the Board did not say that
there was a substantial interruption between the crimes.
SZONYI V. WHITAKER 27
Our case law makes clear that the BIA must adequately
explain its decisions. As we said in Delgado v. Holder,
648 F.3d 1095 (9th Cir. 2011) (en banc),
the BIA must provide “a reasoned explanation
for its actions.” Movsisian v. Ashcroft,
395 F.3d 1095, 1098 (9th Cir. 2005). “Due
process and this court’s precedent require a
minimum degree of clarity in dispositive
reasoning and in the treatment of a properly
raised argument.” Su Hwa She v. Holder,
629 F.3d 958, 963 (9th Cir. 2010). The BIA
must be clear enough that we need not
“speculate based on an incomplete analysis.”
Id. at 964; see also Eneh v. Holder, 601 F.3d
943, 947 (9th Cir. 2010).
Id. at 1107.
The Board has not discharged that duty here. Did it
conclude that a “substantial interruption” is not required? If
so, how can it reconcile that conclusion with its decisions in
Matter of Adetiba and Matter of Islam? See Henriquez-Rivas
v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)
(“[W]e find that the BIA misapplied its own precedent . . . .
Accordingly, we grant [the] petition for review and remand
to the BIA for further proceedings.”); Israel v. INS, 785 F.2d
738, 740 (9th Cir. 1986) (“The BIA acts arbitrarily when it
disregards its own precedents and policies without giving a
reasonable explanation for doing so.”). Did it instead
conclude that there was a “substantial interruption” in this
case? If so, why didn’t it say so, and what is the basis in the
record for that conclusion?
28 SZONYI V. WHITAKER
The majority concludes that the substantial interruption
requirement is satisfied in Szonyi’s case because the crimes
were “committed over a span of six hours.” Maj. Op. 19.
But this reasoning is unpersuasive. First, our review must be
based on the BIA’s reasoning, not our own. See Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“If we
conclude that the BIA’s decision cannot be sustained upon its
reasoning, we must remand to allow the agency to decide any
issues remaining in the case.”). Second, because the record
does not reveal when during these five or six hours Szonyi’s
crimes of conviction occurred, it does not support the
majority’s conclusion that they were committed “over a span
of six hours.” They may have occurred within “a few
minutes of each other,” as in Matter of Pataki, 15 I. & N.
Dec. at 326.1 Third, even assuming arguendo that the crimes
occurred over hours rather than minutes, the BIA has never
held that a passage of time or the duration of a continuous
criminal episode, without more, establishes a substantial
interruption. As Pacheco makes clear, “a temporally
integrated episode of continuous activity,” as apparently
occurred here, constitutes a single scheme, not two separate
schemes. 546 F.2d at 452.2
1
See also Matter of B-, 8 I. & N. Dec. 236, 239 (BIA 1958) (holding
that a “single scheme” exists when “there are a series of similar acts which
occurred at ‘one time,” as when “A & B are indecently fondled at the
same time”); Matter of Z-, 8 I. & N. Dec. 170, 175 (BIA 1958) (explaining
that “convictions for indecent fondling of two minors in the same room at
the same time” are “so related in time and purpose as in reality to
constitute” a single scheme).
2
The BIA’s decision in Matter of Islam provides an example of a case
in which multiple crimes committed on a single day were marked by a
substantial interruption. There, the respondent admitted that
SZONYI V. WHITAKER 29
The majority says the Board’s failure to “distinguish
Szonyi’s case from . . . other decisions . . . is understandable”
because “Szonyi failed to argue before the BIA that his case
was comparable to those cases or to any of its precedents.”
Maj. Op. 19. Szonyi’s brief to the BIA, however, cited the
BIA’s two key decisions on the substantial interruption issue
– Matter of Adetiba and Matter of Islam3 – and made the
substantial interruption issue the centerpiece of his BIA
appeal. See Administrative Record 11–13. It is, in fact,
difficult to see what more Szonyi could have done to place
the issue before the Board. It is true that Szonyi’s brief
before the BIA did not mention some other BIA decisions,
“on March 22, 2008, he used or attempted to use two
different credit and debit cards belonging to another
individual on five separate occasions to purchase
goods.” According to the Immigration Judge, the
respondent “drove to four different locations and made
five purchases over the span of a few hours.” The
locations where the cards were used were in two
adjoining counties and involved different retail outlets,
including Auto Zone and Walmart. During one
transaction involving a stolen credit card, the
respondent told the cashier that the card belonged to his
girlfriend.
25 I. & N. Dec. at 638 (alteration omitted). The BIA held that “the
respondent’s crimes, while occurring in a single day, did not arise from a
‘single scheme’ of criminal misconduct,” because, “[a]fter use of any one
credit card, the respondent had the opportunity to disassociate himself
from his enterprise and reflect on what he had done.” Id. at 642 (alteration
omitted). Here, by contrast, it is far from clear that there was a substantial
interruption between Szonyi’s offenses.
3
Matter of Adetiba, in turn, cited Matter of Pataki as exemplifying
the substantial interruption rule. See Matter of Adetiba, 20 I. & N. Dec.
at 510.
30 SZONYI V. WHITAKER
such as the two decisions discussed above in footnote 1. But
this is of no moment. Szonyi squarely presented the
substantial interruption issue to the Board. The BIA,
therefore, was bound to address the issue in a manner that
would allow for meaningful appellate review.
The majority alternatively suggests we can uphold the
BIA’s decision by relying on the deferential standard of
review we apply to the BIA’s findings of fact. The majority
notes that the BIA found Szonyi “had the opportunity to cease
his activities and reflect on what he has done,” and argues
that the record does not compel “a conclusion that Szonyi had
no opportunity to reflect on his acts over a period of five or
six hours while subjecting three separate women to
nonconsensual sexual acts.” Maj. Op. 17. I cannot agree.
First, the issue in this case is whether Szonyi had an
opportunity to reflect between the actual crimes for which he
was convicted. 8 U.S.C. § 1227(a)(2)(A)(ii). Szonyi was not
convicted of assaulting three women, and he was not
convicted of engaging in assaults over a period of five or six
hours. He was convicted of four unlawful acts involving two
women, and the record is silent as to when those acts
occurred in relation to one another. Second, although we
have a duty to defer to the Board’s findings of fact, we do not
defer to mere speculation. See Maini v. INS, 212 F.3d 1167,
1175 (9th Cir. 2000) (“We have said it before and we say it
again: conjecture and speculation can never replace
substantial evidence.”). Here, there is nothing in the record
to show that any time elapsed between the actual crimes for
which Szonyi was convicted. Hence, if the BIA relied on the
theory that time elapsed between Szonyi’s crimes, then the
BIA relied on speculation, and its finding is not supported by
substantial evidence. If the BIA alternatively relied on the
SZONYI V. WHITAKER 31
theory that no time lapse was required, then the BIA needed
to reconcile that conclusion with its own precedent. See
Matter of Adetiba, 20 I. & N. Dec. at 509–10 (holding that
there must be a “substantial interruption that would allow the
participant to disassociate himself from his enterprise and
reflect on what he has done”); Matter of Islam, 25 I. & N.
Dec. at 640, 642 (same); Matter of Pataki, 15 I. & N. Dec. at
326 (holding that two distinct crimes involving different
victims, committed within a few minutes of each, resulting
from the same criminal impulse and committed in the course
of the same episode arose out of a “single scheme of criminal
misconduct”); Matter of B-, 8 I. & N. Dec. at 239 (holding
that a “single scheme” exists when “there are a series of
similar acts which occurred at ‘one time,” as when “A & B
are indecently fondled at the same time”); Matter of Z-, 8 I.
& N. Dec. at 175 (same). The standard of review offers no
shelter here.
III
On this record, I would grant the petition for review and
remand for the BIA to adequately explain its decision. BIA
precedent clearly requires a “substantial interruption”
between offenses, and Szonyi squarely placed this issue
before the BIA. The BIA, however, did not address it,
leaving us to speculate whether the BIA disregarded the
“substantial interruption” requirement, in contravention of its
own precedent, or concluded that there was a “substantial
interruption” between offenses in this case, but without
saying so and without pointing to anything in the record to
support that conclusion. Absent an adequate explanation, we
cannot effectively review the Board’s decision.