Interim Decision #3177 

MATTER OF ADETIBA 

In Deportation Proceedings 

A-29571508 

Decided by Board May 22, 1992 

(1) The Board of Immigration Appeals follows its historical approach as to what 

constitutes a "single scheme of criminal misconduct" within the meaning of section 

241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) 

(Supp. II 1990), by interpreting the statutory language to mean that when an alien has 

performed an act, which, in and of itself, constitutes a complete, individual, and 

distinct crime, be 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; such an approach recognizes that the statutory language 

was meant to distinguish cases where there are separate and distinct crimes, but they 

are 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. Pacheco v Iatg, 546 F.2d 

448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977), followed. 

(2) Outside their respective circuits, the Board will not follow the more expansive 

interpretation of the statutory language in question as set forth in Gonzalez-Sandoval 

v. INS, 910 F.2d 614 (9th Cir. 1990); Nason v. INS, 394 F.2d 223 (2d Cir.), cert. 

denied, 393 U.S. 830 (1968); and Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963). 

(3) The separate crimes of which the respondent was convicted, namely using credit 

cards in the names of different people, with intent to defraud, and from which he 

obtained things of value for each card during a period of time, did not arise out of a 

"single scheme of criminal misconduct" within the meaning of section 241(a)(2)(A)(ii) 

of the Act, notwithstanding that the crimes were committed pursuant to an elaborate 

plan and the modus operandi was the same in each instance. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2)(A)(ii) [8 U.S.C. § 1251(a)(2)(A)(ii)]—Crimes involving moral turpitude 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Lorraine L Griffin 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated January 3, 1992, an immigration judge found 

the respondent deportable under section 241(a)(2)(A)(ii) of the Immi506 
Interim Decision #3177 

gration and Nationality Act, 8 U.S.C. § 1251(a)(2)(AXii) (Supp. II 

1990), as an alien who at any time after entry is convicted of two 

crimes involving moral turpitude not arising out of a single scheme of 

criminal misconduct, and ordered him deported from the United 

States to Nigeria. The respondent has appealed from that decision. 

The appeal will be dismissed. The request for oral argument is denied. 

8 C.F.R. § 3.1(e) (1992). 

We first note that the immigration judge's decision incorrectly 

indicates that the respondent conceded deportability. He did not. He 

denied allegation 6 in the Order to Show Cause and Notice of Hearing 

(Form I-221), and the Order to Show Cause reflects that he denied the 

charge of deportability. Accordingly, the Board will review the record 

de novo. See Matter of Lok, 18 I&N Dec. 101, 106 (BIA 1981), affd on 

other grounds, 681 F.2d 107 (2d Cir. 1982) (holding that the Board is 

not bound by immigration judge's conclusions but rather has plenary 

power to review the record de nova and to make its own independent 

determinations on questions of law and fact). We also note that the 

respondent has offered the indictment from his criminal record on 

appeal and that the Immigration and Naturalization Service has not 

objected to its consideration. 

The respondent, a native and citizen of Nigeria, entered the United 

States as a nonimmigrant visitor on October 27, 1980. and his status 

was adjusted to that of a lawful permanent resident on June 8, 1989. 

On October 15, 1990, he was convicted in the United States District 

Court for the Eastern District of North Carolina of the following 

offenses: four counts of fraud in violation of 18 U.S.C. § 1341 (1988); 

four counts of using fictitious names and addresses in violation of 18 

U.S.C. § 1342 (1988); four counts of having falsely represented a 

social security number assigned by the Secretary of the United States 

Department of Health and Human Services in violation of 42 U.S.C. 

§ 408 (1988); and three counts of fraud and related activity in 

connection with access devices in violation of 18 U.S.C. § 1029(a)(2) 

(1988). The conviction record was accepted into evidence at the 

hearing. On October 23, 1991, the United States Court of Appeals for 

the Fourth Circuit dismissed the respondent's direct appeal of his 

conviction. On November 29, 1991, the respondent filed a petition for 

rehearing with the Fourth Circuit. 

For 11 of the counts, the respondent received a sentence of 3 years' 

imprisonment for each count, to run concurrently with each other. For 

the remaining four counts, he was placed on 5 years' probation. He 

was also assessed a fine of $2,000 and, as a condition of probation, was 

ordered to pay $71,386.19 as restitution. A monetary assessment of 

$750 was also imposed. 

The respondent does not contest that the crimes of which he was 

507 
Interim Decision #3177 

convicted involve moral turpitude. Fraud, as a general rule, has been 

held to involve moral turpitude. Jordan v. De George, 341 U.S. 223 

(1951); Matter of Flores, 17 I&N Dec. 225 (BIA 1980). 

If the respondent had been convicted of only a single crime 

involving moral turpitude committed within 5 years of "entry" into 

the United States, he would also be deportable under section 

241(a)(2)(A)(i) of the Act. However, it appears from the record before 

us that the respondent's last "entry" occurred on October 27, 1980, 

and the crimes in question were committed between June of 1986 and 

May of 1987. The respondent's status was adjusted to that of a lawful 

permanent resident on June 8, 1989, but this does not constitute an 

"entry" for purposes of section 241(a)(2)(A)(i) of the Act. See Matter of 

Connelly, 19 I&N Dec. 156 (BIA 1984). As reflected by the Order to 

Show Cause, the respondent is solely charged with deportability under 

section 241(a)(2)(A)(ii) of the Act on the basis that at any time after 

entry, he has been convicted of two crimes involving moral turpitude 

not arising out of a single scheme of criminal misconduct. 

The immigration judge found that the respondent's conviction was 

final for immigration purposes based on the conviction record and the 

dismissal of his direct appeal by the Fourth Circuit. Thus, he found the 

respondent deportable as charged and ordered him deported to 

Nigeria. 

The facts regarding the circumstances of the respondent's crimes are 

not in dispute. The respondent applied for four credit cards in the 

names of four different individuals, using fictitious names, addresses, 

and social security numbers, and he was issued three of those cards. 

Upon receipt of these cards, the respondent, during various periods in 

1986 and 1987, obtained or attempted to obtain things of an aggregate 

value of $1,000 or more for each card from Gulf Products Division, 

BP Oil, Inc. He also caused others to use the falsely obtained cards. 

On appeal, the respondent contends that the immigration judge 

erred in concluding that his conviction was final for immigration 

purposes. However, it is well established that a conviction attains a 

sufficient degree of finality for immigration purposes when direct 

appellate review of the conviction has been exhausted. See Matter of 

Ozkok, 19 I&N Dec. 546, 552 n.7 (131A 1988). Therefore, the 

possibility of a decision on any post-conviction motion that has been 

filed does not affect our finding that the respondent is deportable. See 

Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (stating that postconviction motions do not operate to negate finality of a conviction 

for deportation purposes, unless and until the conviction is overturned 

pursuant to such motions). 

The respondent also asserts that his crimes arose out of a single 

scheme of criminal misconduct. He maintains that the courts in most 

508 
Interim Decision #3177 

jurisdictions have rejected the Board's historical view of the issue, 

following the lead case of Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). 

The respondent emphasizes that the crimes of which he was convicted 

were all part of a single scheme which was elaborately planned. As 

evidence of the single scheme, the respondent points out that the 

indictment refers to him having "devised a scheme" and doing acts "in 

furtherance of the aforesaid scheme." 

Section 241(a)(2)(A)(ii) of the Act provides as follows: 

Multiple criminal convictions. - Any alien who at any time after entry is convicted of 

two or more crimes involving moral turpitude, not arising out of a single scheme of 

criminal misconduct, regardless of whether confined therefor and regardless of 

whether the convictions were in a single trial, is deportable. 

Neither the language of the above statutory provision nor the 

legislative history provides any assistance or insight into what 

Congress meant by the phrase "single scheme of criminal misconduct." See Wood v. Hoy, supra; Matter of Vosganian, 12 I&N Dec. 1 

(BIA 1966). In the past, the Board has interpreted this language to 

mean 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. This interpretation, which we continue 

to view as the more reasonable one, recognized that the statutory 

language was meant to distinguish cases where there are separate and 

distinct crimes but they are performed in furtherance of a single 

criminal episode. See Matter of LP, 8 I&N Dec. 236 (BIA 1958); Matter 

of 7 I&N Dec. 144 (BIA 1956); Matter of 6 I&N Dec. 382 (BIA 

1954); Matter of Z-, 6 I&N Dec. 167 (BIA 1954); Matter of D-, 5 I&N 

Dec. 728 (BIA 1954). 

Under this analysis, there would exist a single scheme of criminal 

misconduct where one crime constituted a lesser offense of another, or 

where the two crimes flow From and are the natural consequence of a 

single act of criminal misconduct. Examples would be both possessing 

and uttering a counterfeit bill, Matter of D-, supra, or where a person 

breaks and enters into a store with intent to commit larceny and, in 

connection with that criminal act, also commits an assault with a 

deadly weapon. Matter of D-, supra; see also Matter of B-, supra, at 239. 

The court in Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976), cert. 

denied, 430 U.S. 985 (1977), appears to have most closely followed the 

same analysis. Stating that it was reluctant to adopt a definition of a 

"single scheme" that depends on a multitude of factors, the court 

concluded 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 

509 
Interim Decision #3177 

and reflect on what he has done. The Board also finds this to be a 

reasonable approach, which comports with the analysis undertaken in 

our prior cases. See, e.g., Matter of Pataki, 15 I&N Dec. 324 (BIA 

1975). 

However, as pointed out by the respondent, the courts in the other 

jurisdictions that have confronted this issue have, to varying degrees, 

applied a more expansive interpretation of the language in question. 

See Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990); 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); Wood v. Hoy, supra; see also 

Barrese v. Ryan, 203 F. Supp. 880 (D. Conn. 1962); Zito v. Moutal, 

174 F. Supp. 531 (N.D. Ill. 1959); Jeronimo v. Muiff, 157 F. Supp. 808 

(S.D.N.Y. 1957). 

The respondent asserts that the Board should reverse the immigration judge's finding of deportability. We decline to do so and will 

continue to follow our approach outside of those jurisdictions noted 

above that have followed a more expansive interpretation. See Matter 

of Cerna, 20 I&N Dec. 399 (131A 1991) (stating that authority from one 

circuit is not binding in another), air d, 979 Fid 212 (11th Cir. 1992). 

The respondent asserts that all jurisdictions, aside from the First 

Circuit, have largely followed the analysis set forth in Wood v. Hoy, 

supra. In that case, the Ninth Circuit stated that the liberal language of 

the statute controls and that the phrase "not arising out of a single 

scheme of criminal conduct" is not intended to mean not arising out of 

a single criminal act. Id. at 830. Quoting Chanan Din Khan v. Barber, 

253 F.2d 547 (9th Cir.), cert. denied, 357 U.S. 920 (1958), the court 

went on to state that in the absence of all evidence to the contrary, two 

complete crimes constitute two crimes not arising out of a single 

scheme of criminal misconduct. Wood v. Hoy, supra, at 830. 

In that case, the respondent had been convicted of robbing a liquor 

store with three others, as well as robbing a drive-in theater with the 

same three people 3 days later. Although there were two complete 

crimes, the court held that there was the existence of evidence 

establishing a single scheme of criminal misconduct. Id. It agreed that 

the commission of two crimes may, by the very nature of the crimes 

themselves, or the time or circumstances of their commission, 

constitute reasonable, substantial, and probative evidence that they 

did not arise out of a single scheme of misconduct. However, the court 

concluded that this was not the case before it, where both crimes were 

robbery of the first degree, were committed by the same four people, 

and were committed within 3 days of each other, and in both crimes 

money was obtained from the victims by means of force and fear. Id. 

at 831. The court also emphasized that the participants had met 2 or 3 

510 
Interim Decision #3177 

weeks before and had agreed at that time to participate in the two 

particular armed robberies. Id. 

In 1990, the Ninth Circuit reaffirmed its analysis, holding in 

Gonzalez-Sandoval v. INS, supra, that where credible, =contradicted 

evidence, which was consistent with the circumstances of the crimes, 

showed that the two predicate crimes were planned at the same time 

and were executed in accordance with that plan, the Government 

failed in its burden of establishing that the convictions did not arise 

out of "a single scheme of criminal misconduct." Id. at 616. In that 

case, the court found that two bank robberies occurring within 2 days 

of each other at the same bank arose out of a single scheme. Cf. LeonHernandez v. INS, 926 F.2d 902 (9th Cir. 1991). 

However, we find this emphasis on whether the crimes are planned 

together and executed in accordance with that plan, as were the 

respondent's crimes, to be clearly unjustified. Such a contradiction of 

the statute would result in extreme absurdities, as it would render 

section 241(a)(2)(A)(ii) of the Act completely inapplicable in any case 

where an alien committed several crimes, provided he first had the 

foresight to formulate a broad plan of criminal misconduct, even if he 

had numerous opportunities to reflect and to disassociate himself from 

his criminal enterprise. See Pacheco v. INS, supra; Matter of Z-, supra. 

In the case before us, it is clear that the respondent did, in fact, commit 

his crimes pursuant to an elaborate plan. However, the emphasis on 

the planning for these crimes remains unjustified. It would allow for 

criminals to commit numerous similar crimes over a period of time, 

but still avoid deportability by having committed them according to a 

previous plan, while the criminal who committed the same crimes, but 

without any overall plan, would be subject to deportation. 

We simply cannot conclude that Congress intended by the "single 

scheme" language to insulate from deportability individuals who 

formulate a plan at one time for criminal behavior involving multiple 

separate crimes, while making deportable those who commit only two 

such crimes without a plan. Accordingly, as noted above, except within 

the jurisdiction of a circuit court that has ruled otherwise, we will 

continue to interpret and apply this statutory phrase as we have 

historically. That is, the 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. 

This case arose within the jurisdiction of the Fifth Circuit, which has 

not ruled on the interpretation of "single scheme" contained in section 

241(a)(2)(A)(ii) of the Act. Therefore, the Board will apply its 

historical analysis to the respondent's crimes. 

511 
Interim Decision #3177 

Under this analysis, it is of no consequence that the respondent's 

separate crimes of unauthorized use of a credit card with intent to 

defraud and the other related offenses were committed pursuant to an 

elaborate plan and that the modus operandi was the same in each 

instance. In Matter of Z -, supra, which involved two convictions for 

forging and uttering government checks, the Board interpreted the 

predecessor statute to section 241(a)(2)(A)(ii) of the Act to mean that 

when a criminal act accomplishes a specific and individual criminal 

objective of and by itself, then the alien who performs it becomes 

deportable when he commits another such act, provided both acts are 

followed by convictions. Id. at 170. In that case, this was said to mean 

that when the respondent received the money from the first forged 

check she accomplished a specific criminal objective, and when she 

received the money from the second forged check she accomplished 

another, distinct criminal objective. Id. Thus, the Board focused on 

actual receipt of the money by the alien as accomplishing the criminal 

objective. In the present case the respondent committed separate and 

distinct crimes each time he used a different credit card and obtained 

through its unauthorized use things of an aggregate value of more than 

$1,000. Therefore, with each use of a different card, the respondent 

accomplished his specific criminal objective when he obtained things 

of value resulting from the transactions with each card. At that point 

the specific criminal objective had been accomplished. 

The further use of other credit cards to obtain additional things of 

value was not necessary to the success in obtaining things of value 

from any one individual card. A specific criminal objective had 

already been accomplished when he illegally used any one individual 

credit card and from that illegal use obtained things of value. The use 

of additional cards did not flow from and was not a natural 

consequence of a single act of criminal misconduct. After use of any 

one credit card, the alien had the opportunity to disassociate himself 

from his enterprise and reflect on what he had done. In sum, the Board 

finds that the Service has met its burden of establishing by clear, 

unequivocal, and convincing evidence that the respondent was 

convicted of two crimes involving moral turpitude not arising out of a 

single scheme of criminal misconduct, and that he is accordingly 

deportable as charged. Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. 

§ 242.14(a) (1992). 

We find the respondent's remaining contentions to be without 

merit. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

512