Interim Decision #1793 

Kam or NASON 

In Deportation Proceedings 

A-32126968 

Decided by Board September 29,1067 

Respondent's conviction on a plea of guilty on April 0, 1065 of willfully and 

knowingly devising a scheme to defraud by use of the mails rising a fictitious 

name from November 1, 1962 to December 31, 1962 in violation of 18 U.S.C. 

1341, and his conviction on the same day, in the same court, on his plea of 

guilty: of devising a similar scheme to defraud by use of tho mans using 

another fictitious name during the period October 2, through October 24, 1963, 

in violation of the same statute—convictions of two crimes involving moral 

turpitude—are not convictions arising out of a single scheme of criminal misconduct within the meaning of section 241(a) (4) of the Immigration and 

Nationality Act.• 

-Cnaton: 

Order: Act of 1952—Seetion 241(a) (4) [8 U.S.C. 1251(a) (4) )—Convicted of 

two crimes after entry—Devising a scheme to defraud 

by use of the mails (18 1341) ; and devising 

a scheme to defraud by use of the mails (18 II.S.C. 

1841). 

ON BEHALF OF RESPONDENT: ON BEHALF OF SE/DUCE: 

Rita E. Hauser, Esquire R. A. Vielha.ber 

300 Madison Avenue Appellate Trial Attorney 

New York, mew York 10017 

The case comes forward on appeal from the order of the special 

inquiry officer entered April 12, 1967 ordering that the respondent be 

deported on the charge contained in the order to show cause. 

The case was previously considered by us on June 2, 1966 on appeal 

from the order of the special inquiry officer dated January 13, 1966 

finding the respondent deportable as charged in the order to show 

cause, concluding that the crimes for which respondent was convicted 

did not arise out of a single scheme of criminal misconduct and ordering him deported to Canada. In an order of June 2, 1966, after noting 

the diversity of holdings regarding the meaning of the phrase "not 

•Reaffirmed. See 394 F. 2d 223 (CA. 2, 1908). 

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Interim Decision #1793 

arising out of a single scheme of criminal misconduct," we found 

that deportability had been established. 

The respondent applied for judicial review, Nason v. Immigration 

and Naturaliaatirm, Service, 370 F.2d 865 (2d Cir. 1967). The court 

held that devising a scheme to defraud by use of the mails was a crime 

involving moral turpitude; that the respondent was not entitled to 

have a lawyer present at a preliminary interrogation before an investigator of the Immigration and Naturalization Service, and that it was 

not error to fail to advise him that he had a right to counsel; and that it 

was not error to receive in evidence at the deportation hearing the 

respondent's sworn statement made at the preliminary interrogation. 

However, the court held that the Board's method of appraising the 

evidence was not L satisfactory application of the rule required in 

•deportation proceedings of clear, unequivocal and convincing evidence 

as held by the Supreme Court in TV oodby v. Immigration and Natura2- 

4zation Service, 884 U.S. 904 (1966) ; that it was necessary to decide 

the issues on the record as a whole. On March 28, 1967, we remanded 

the case for further proceedings in accordance with the opinion of 

the court .1 

We will briefly review the facts. The respondent, a native and citizen 

of Canada, now 81 years old, was admitted to the United States for 

permanent residence on April 29, 1961. On April 9, 1965 he pleaded 

guilty to three counts of an information in the District Court for the 

Southern District of New York for =lawfully, wilfully and knowingly devising a scheme to defraud by use of the mails using the fictitious name of "Charles C. Cole" from November 1, 1962 to December 

31, 1902 in violation of 18 U.S.C. 1341. On the same day in the same 

court he also pleaded guilty to three additional counts of the information for devising a similar scheme in violation of the same section, using 

the fictitious name "Peter Hughes," during the period from October 

2, through October 24, 1963. Upon his plea of guilty to these six counts 

petitioner was given a suspended sentence and placed on probation for 

two years. The special inquiry officer, the Board, and the court found 

that each of these crimes involved fraud and hence moral turpitude 

within the meaning of 8 U.S.C. 1251(a) (4). 

In his order of April 12, 1967 the special inquiry officer compared 

the respondent's sworn statement of June 15, 1965 with his testimony 

at the deportation hearing on August 8, 1965 and found that the re2 We noted the dissent of Chief Judge Lombard who found the evidence as to 

deportability to be clear, unequivocal and convincing, and that no testimony could 

support the claim that these two felonies, so removed in time, and void of any 

conceivable continuity, could have arisen out of a "single scheme" as Congress 

intended that phrase. 

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Interim Decision #1793 

spondent's attempted explanation at the deportation hearing was patently lame, and that the respondent was not a credible testifier in hia 

defense, plus the uncontrovertible fact that the frauds were separated 

by ten months. The special inquiry officer concluded that the evidencewas clear, unequivocal and convincing that the crimes for which therespondent was convicted did not arise out of a single scheme of 

criminal misconduct. 

Counsel argues that the evidence relied on by the special inquiry 

officer is not enough to meet the very rigorous burden of proof put 

on the Government in deportation proceedings by TV ovarby v. Immigration. and Naturalization Service, 384 U.S. 904, and that the special' 

inquiry officer erroneously relied on Costello v. Immigration and Naturalization Service, 311 F.2d 343 (2d Cir., 1962), reversed on other 

grounds, 376 U.S. 120 (1964). Judge Medina in the N WO% case referred 

to the Costello case and stated that the court concluded in the Costello 

case that in the absence of any admissible and relevant evidence other 

than the records of conviction (Costello did not testify), the special 

inquiry officer was required to find that the petitioner had been convicted of two crimes not arising from a single scheme of misconduct. 

The court pointed out that in the Nostra ease, by contrast, there was 

evidence, other than the record of convictions, which was relevant to 

the issue of how many criminal schemes existed. 

In the present case, the explanation of the respondent in deportation proeeedings attempting to clarify and to repudiate his statement 

of June 15, 1965, was a weak and unconvincing attempt to lessen the 

darnagi.ig effects of the statement against respondent's interest contained in Exhibit 4. The special inquiry officer, who had the opportunity to view the demeanor of the respondent when testifying, found 

him to be not a credible testifier. It is uncontradieted that the frauds 

were separated by a period of ten or eleven months_ In addition, close 

examination of the records of conviction show that the counts (1), 

(2) and (3) of the information involved a scheme to defraud under 

the name of Charles C. Cole; and counts (7), (8) and (9) involved 

a second scheme to defraud committed some ten or eleven months 

later under the name of Peter Hughes. 2 

While we have noted the distinction between this case and the 

Costello case, the court in the Costello case 3clearly indicated its disagreement with the views expressed in the cases collected in footnote 8, 

"By contrast, in Jeronimo v. Mattil, 157 P.Supp. SOS, the period of time charged 

in the first count encompassed the periods of time of the acts charged in 

every one of the other counts, and all the acts constituted parts of a common 

scheme and plan. • 

'311 F.29 343 p. 848. 

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Interim Decision #1793 

which are the cases relied upon by counsel. The court in. the Costello 

case, the same circuit as in the instant case, noted that the statute 

.makes no reference whatever to any "common scheme or plan;" nor 

would it seem reasonable to suppose that the Congress intended to 

grant immunity from deportation to those who over a period of time 

pursued a course of criminal misconduct, involving numerous succesaive, separate crimes, consummated at different times but in the same 

manner, or with the same associates, or even by the use of the same 

fraudulent devices, disguises, tools or weapons. The court stated that 

there was no denying the fact that the Congress by the 1952 Act 

intended to make it easier rather than more difficult to deport aliens 

who were recurrent criminals. 

Upon a full conLideration of all the evidence of record, including 

the respondent's sworn statement, his testimony, his attempted repudiation of sworn statement (a statement against interest), the finding 

of the special inquiry officer that the respondent was not a credible 

testifier, and the record of conviction showing two separate and distinct mail frauds, committed over ten months apart, constituted clear, 

unequivocal and convicing evidence that the crimes did not arise out 

of a single scheme of criminal misconduct. We kind that respondent is 

deportable as charged. The appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

455