Balogun v. Immigration & Naturalization Service

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1011

HENRY OLAWALE BALOGUN,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN
ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya and Cyr,
Circuit Judges

Henry Olawale Balogun on brief pro se.

Frank W, Hunger, Assistant Attorney General, Richard M.

Evans, Assistant Director, and John L. Davis, Attorney, Office of

Immigration Litigation, on brief for respondent.

July 28, 1994

Per Curiam. Petitioner seeks review of a final

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-

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.

Balogun, 989 F.2d 20 (1st Cir. 1993).

In Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976),

cert. denied, 430 U.S. 985 (1977), we interpreted the meaning

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.

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.

Petitioner implicitly recognizes that under Pacheco

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

Ninth Circuit reaffirmed the approach it had adopted in Wood

v. Hoy, 266 F.2d 825 (9th Cir. 1959), holding that the

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

v. INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830

(1968); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

In Pacheco, however, we rejected the approach

upon which petitioner relies. Moreover, in Matter of

Adetiba, Interim Dec. 3177, 1992 WL 195812 (B.I.A. May 22,

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

Pacheco as following most closely its own analysis, and

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

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

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

Defense Council, Inc., 467 U.S. 837 (1984)); Iredia v. INS,

981 F.2d 847 (5th Cir.) (same), cert. denied, 114 S. Ct. 203

(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

Adetiba. We need not decide how a more expansive definition

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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