Istvan Szonyi v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISTVAN SZONYI, No. 15-73514
Petitioner,
Agency No.
v. A010-977-327
WILLIAM P. BARR, ORDER AND
Acting Attorney General, AMENDED
Respondent. OPINION
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
Amended November 13, 2019
Before: Raymond C. Fisher, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Order;
Dissent to Order by Judge Collins;
Opinion by Judge Clifton;
Dissent by Judge Fisher
2 SZONYI V. WHITAKER
SUMMARY*
Immigration
The panel filed: 1) an order amending its prior opinion,
denying panel rehearing, and denying, on behalf of the court,
rehearing en banc; and 2) an amended opinion denying Istvan
Szonyi’s petition for review of a decision of the Board of
Immigration Appeals.
In the amended opinion, 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
*
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
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.
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
4 SZONYI V. WHITAKER
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.
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,
SZONYI V. WHITAKER 5
and there was nothing in the record to suggest there was a
“substantial interruption” between the crimes.
Dissenting from denial of rehearing en banc, Judge
Collins, joined by Judge Bea, wrote that this case well
illustrates why the Chevron doctrine has become the subject
of so much recent criticism. Noting the separation-of-powers
concerns that arise where, as here, the Chevron doctrine has
the effect of placing the ability to construe authoritatively the
limits on an agency’s power in that agency’s own self-
interested hands, Judge Collins wrote that it is critical that
courts enforce Chevron’s condition that an agency’s
construction of an ambiguous provision merits deference only
if it is a reasonable reading of the actual words of the statute.
Judge Collins wrote that the panel failed to do that here;
instead, it upheld an agency construction that this court has
consistently rejected as being based on an impermissible
rewriting of the statutory text.
With respect to step one of Chevron, Judge Collins agreed
with the panel’s conclusion that the relevant statutory
language is ambiguous, and that nothing in the court’s
precedent required a contrary conclusion. However, Judge
Collins wrote that the BIA’s construction of the phrase is
unreasonable under Chevron step two, and should be rejected.
Accordingly, Judge Collins concluded that the proper course
would be to remand the matter to the BIA to adopt a new
construction that interprets, rather than rewrites, the statute.
6 SZONYI V. WHITAKER
COUNSEL
David Timothy Raimer (argued), Jones Day, Washington,
D.C.; Meir Feder, Jones Day, New York, New York; for
Petitioner.
Leslie McKay (argued) and Bryan S. Beier, Senior Litigation
Counsel; Terri J. Scadron and John W. Blakeley, Assistant
Directors; Joseph H. Hunt, Assistant Attorney General;
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.
ORDER
The opinion filed on February 13, 2019, is hereby
amended as follows:
1. On page 15 of the slip opinion, in the first full
paragraph, replace:
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
SZONYI V. WHITAKER 7
guilty, it could reasonably have been
anticipated that the BIA would apply its own
interpretation.
with the following:
As of then, however, the BIA had not clearly
indicated whether it would follow these
broader interpretations or its own precedent.
It was not until 1992, a decade after Szonyi
pled guilty, that the BIA announced that it
would 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 should not have
come as a “complete surprise” that the BIA
would apply an interpretation that held him
removable. See Lemus, 842 F.3d at 649.
With these amendments, Judge Clifton and Judge
Callahan have voted to deny the petition for panel rehearing.
Judge Fisher has voted to grant it. Judge Callahan has voted
to deny the petition for rehearing en banc, and Judge Clifton
has so recommended. Judge Fisher has recommended
granting it.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
8 SZONYI V. WHITAKER
The petition for rehearing and the petition for rehearing
en banc (Docket Entry No. 67) are otherwise DENIED, no
further petitions will be accepted.
COLLINS, Circuit Judge, with whom BEA, Circuit Judge,
joins, dissenting from denial of rehearing en banc:
This case well illustrates why Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837(1984), has become the subject of so much recent criticism.
Under Chevron, we are required to give deference to an
agency’s reasonable construction of ambiguous language in
a statute that the agency is charged with administering. Id. at
842–43. Where, as here, the ambiguous provision at issue
imposes an express legislative constraint on the agency’s
authority, the Chevron doctrine has the effect of placing the
ability to construe authoritatively the limits on an agency’s
power in that agency’s own self-interested hands. It is
troubling enough that Chevron “concentrate[s] federal power
in a way that seems more than a little difficult to square with
the Constitution of the framers’ design,” Gutierrez-Brizuela
v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,
concurring), but “when deference is applied to . . . an
agency’s interpretation of the statutory provisions that
concern the scope of its own authority, it is more troubling
still,” Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018)
(Kennedy, J., concurring) (emphasis added). Given these
separation-of-powers concerns, it is critical that courts
rigorously enforce Chevron’s condition that an agency’s
construction of an ambiguous provision merits deference only
if it is a reasonable reading of the actual words of the statute.
The panel failed to do that here. Instead, it upheld an agency
SZONYI V. WHITAKER 9
construction that this court has consistently rejected as being
based on an impermissible rewriting of the statutory text,
rather than an interpretation of it. In doing so, the panel
improperly disregarded controlling precedent and applied an
excess of deference that “suggests an abdication of the
Judiciary’s proper role in interpreting federal statutes.” Id.We should have taken this case en banc.
In the provision at issue here, Congress expressly limited
the Government’s power to deport aliens based on their
commission of “two or more crimes involving moral
turpitude” by specifying that the Government may not count
to two simply by carving up a “single scheme of criminal
misconduct” into multiple separate charges. See 8 U.S.C.
§ 1227(a)(2)(A)(ii). Because the Immigration and Nationality
Act (“INA”) is administered by the Attorney General and the
Board of Immigration Appeals (“BIA”), the Supreme Court
has held that “the BIA should be accorded Chevron deference
as it gives ambiguous statutory terms concrete meaning
through a process of case-by-case adjudication.” Negusie v.
Holder, 555 U.S. 511, 517 (2009) (citations and internal
quotation marks omitted). Unsurprisingly, when asked to
construe this statutory limit on the agency’s own power, the
BIA adopted an exceptionally narrow view of what
constitutes a “single scheme of criminal misconduct,” thereby
allowing it more easily to divide up a single criminal episode
into multiple crimes and expanding its power to order
deportation. Under the BIA’s construction, the “single
scheme” exception applies only when two crimes follow so
closely together that the offender essentially had no
opportunity to cease his activities and reflect on what he had
done. For sixty years, however, this court has consistently
refused to follow that construction because we correctly
recognized that it rewrites the statute “as if it read ‘single
10 SZONYI V. WHITAKER
criminal act’” rather than “‘single scheme of criminal
misconduct.’” Wood v. Hoy, 266 F.2d 825, 830 (9th Cir.
1959) (emphasis added). Having rejected the BIA’s position
as legally impermissible, we proceeded to apply our own
construction, under which two or more crimes will constitute
a “single scheme” if they “were planned at the same time and
executed in accordance with that plan.” Gonzalez-Sandoval
v. INS, 910 F.2d 614, 616 (9th Cir. 1990) (emphasis added).
But after the Supreme Court held that “[a] court’s prior
judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows
from the unambiguous terms of the statute,” Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
982 (2005), the BIA decided that it was time for us to fall in
line, and it started refusing to follow Wood even in cases
arising in this circuit. Unfortunately, the panel in this case
has now surrendered to the BIA’s flawed construction, and in
doing so, it has squarely contravened Wood’s holding that the
BIA’s interpretation rests on a legally impermissible
rewriting of the text.
Although I think that the panel thus erred in failing to
follow Wood’s rejection of the BIA’s interpretation, I cannot
fault the panel for concluding that the BIA is not required to
adopt the alternative construction of “single scheme” that this
court enunciated in Wood and its progeny. Wood itself
correctly recognized that the key phrase at issue
here—“arising out of a single scheme of criminal
misconduct”—is ambiguous, and under the Supreme Court’s
binding decision in Brand X, that means “the agency remains
the authoritative interpreter (within the limits of reason)” of
this provision. 545 U.S. at 983. Accordingly, Brand X and
SZONYI V. WHITAKER 11
Chevron require us to allow the agency, on remand, to
propose an alternative reading of the statutory text that is
reasonable. And I especially cannot fault the panel on this
score when I agree with the BIA that this court’s alternative
construction is itself wrong. Under Wood’s reading of “single
scheme,” we have wrongly ignored the objective connections
that are inherent in the concept of a “scheme,” and we instead
have given dispositive weight to whether multiple crimes
were planned together. As the BIA has noted, this flawed
subjective approach has the perverse consequence of favoring
more culpable criminals who pre-plan a crime spree over
those who commit the very same crimes without such
forethought.
A remand to the agency is particularly appropriate here,
because this is not a case in which the petitioner would lose
under any conceivable reading of “single scheme,” thereby
rendering pointless any such remand. The multiple crimes
that render Petitioner Istvan Szonyi eligible for deportation
were horrific—on an October night in 1981, he held three
young women at gunpoint in a room for six hours while
subjecting them to disgusting sexual abuse. Because these
multiple crimes against multiple victims all occurred during
a single episode in a single room, it is possible to posit
reasonable competing interpretations of the phrase “single
scheme of criminal misconduct,” some of which would cover
Szonyi’s conduct and some of which would not. But in
resolving that question, the agency needs to do what it has
failed to do for many years—namely, to articulate a
reasonable construction that is faithful to the meaning of the
phrase “single scheme,” rather than continue to apply a test
that disregards that phrase and instead rewrites the provision
as if it read “single act.”
12 SZONYI V. WHITAKER
Because the panel’s decision allows the agency to
continue to enforce an unreasonable reading of the statute that
disregards our precedent and that eliminates a congressional
constraint on the agency’s power, I respectfully dissent from
our failure to rehear this case en banc.
I
The statutory construction issue presented in this case
arises against the backdrop of a long history of judicial
interpretation of the relevant provision and its predecessor.
A
For more than 100 years, the immigration laws of this
country have provided for the deportation of specified
persons who have committed “crimes involving moral
turpitude.” For example, in section 19 of the Immigration
Act of 1917, Congress provided that any alien who commits
a single felony “crime involving moral turpitude . . . within
five years after the entry of the alien to the United States”
would generally be subject to deportation, 8 U.S.C. § 155(1946 ed.) (emphasis added), and the INA still contains a
comparable provision, see 8 U.S.C. § 1227(a)(2)(A)(i). The
apparent significance of the five-year limitation is that, once
an alien has been lawfully in the United States for sufficient
time to develop substantial ties to this country, a single felony
crime of moral turpitude should no longer be sufficient to
render that person automatically eligible for deportation. But
Congress has also consistently specified that no such
indulgence will be granted to those who commit multiple
crimes of moral turpitude after their admission to the United
States. Thus, in the 1917 statute, Congress generally
provided for the deportation of any alien “who is hereafter
SZONYI V. WHITAKER 13
sentenced more than once to such a [felony] term of
imprisonment because of conviction in this country of any
crime involving moral turpitude, committed at any time after
entry.” 8 U.S.C. § 155 (1946 ed.) (emphasis added). As a
result, where an alien has been in the country for more than
five years and commits a crime of moral turpitude, the
Government’s power to deport that alien will depend
critically upon whether he or she has committed one such
crime or two.
In 1948, the Supreme Court in Fong Haw Tan v. Phelan,
333 U.S. 6 (1948), resolved a circuit split over the proper
construction of this multiple-crimes provision of the 1917
statute. Rejecting this court’s view that any two convictions
for separate crimes were sufficient to trigger the statute, even
if the convictions were imposed at the same time and resulted
in concurrent sentences, the Supreme Court instead held that
an alien is “sentenced more than once” for a crime of moral
turpitude when the “alien[,] having committed a crime
involving moral turpitude and having been convicted and
sentenced, once again commits a crime of that nature and is
convicted and sentenced for it.” Id. at 9–10. The Court
explained that this reading of the statutory language was also
consistent with its purpose, because by reoffending after a
previous conviction, such a “repeater” had shown himself to
be “a criminal of the confirmed type,” with a “criminal heart
and a criminal tendency.” Id. at 9 (citations omitted).
As part of its overhaul of the immigration laws in 1952,
Congress changed the language of this provision in a manner
that unmistakably abrogated the rule recognized in Fong Haw
Tan. Instead of reaching only the pure recidivist who
reoffends after a prior conviction, the amended provision
established a broader rule generally providing for the
14 SZONYI V. WHITAKER
deportation of an alien who “is convicted of two crimes
involving moral turpitude, not arising out of a single scheme
of criminal misconduct,” and Congress expressly applied this
new rule “regardless of whether the convictions were in a
single trial.” 8 U.S.C. § 1251(a)(4) (1952 ed.). The current
version of this provision, which reflects only minor wording
changes from the 1952 version, is now contained in section
237(a)(2)(A)(ii) of the INA, and it provides as follows:
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
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).
As this text reflects, the broader any-two-crimes rule
adopted in 1952 was subject to an important exception—
namely, that an alien is deportable only if he or she is
convicted of two crimes of moral turpitude “not arising out
of a single scheme of criminal misconduct.” Id. (emphasis
added). Thus, while the multiple convictions could now
occur at a single trial, the proviso that they could not arise out
of a single scheme of criminal misconduct meant that the
amended statutory language retained, albeit in a narrower
form, the prior statute’s comparable focus on repeat criminals
who had demonstrated “lawless propensities.” Costello v.
INS, 376 U.S. 120, 134 (1964) (White, J., dissenting).
SZONYI V. WHITAKER 15
B
In 1954, the BIA first articulated its very narrow
construction of this new statutory limitation on the agency’s
power to deport an alien convicted of multiple crimes of
moral turpitude. See Matter of D—, 5 I. & N. Dec. 728 (BIA
1954). In Matter of D—, the alien argued that separate
convictions for obtaining property by false pretenses,
committed against different persons on different days, should
nonetheless be deemed to constitute a “single scheme of
criminal misconduct,” because the alien committed them
“pursuant to a scheme or pattern to raise funds for a single
purpose.” Id. at 729. Although the BIA might have rejected
this overbroad reading of the “single scheme” exception on
any number of grounds, it instead held that the exception did
not apply because, in its view, any two separate criminal acts
would be deemed not to arise from a “single scheme.” As the
BIA explained:
To us, the natural and reasonable meaning of
the statutory phrase is that when an alien has
performed an act which, in and of itself,
constitutes a complete, individual and distinct
crime then he becomes deportable when he
again commits such an act, provided he is
convicted of both. The fact that one may
follow the other closely, even immediately, in
point of time is of no moment. Equally
immaterial is the fact that they may be similar
in character, or that each distinct and separate
crime is a part of an overall plan of criminal
misconduct.
16 SZONYI V. WHITAKER
We differentiate the foregoing situation from
that wherein two crimes flow from and are the
natural consequence of a single act of
criminal misconduct. That is, we distinguish
it from the case where technically there are
two separate and distinct crimes, but morally
the transaction constitutes only a single
wrong. For example, a counterfeiter may be
indicted in one count for possessing a bill, and
in another for passing it, though he cannot
pass it without having possession; so also, a
person might break and enter a store with
intent to commit larceny and in connection
therewith commit an assault with a deadly
weapon.
Id. at 729–30 (emphasis added); see also Matter of Z—,
6 I. & N. Dec. 167, 168–69 (BIA 1954) (same).
Five years later, in Wood v. Hoy, 266 F.2d 825 (9th Cir.
1959), we rejected the BIA’s reading in Matter of D— as
flatly contrary to the statutory language. As we explained,
the BIA’s interpretation of the statute improperly rewrote
“the statute as if it read ‘single criminal act’”:
We must take the language of the statute as
we find it. It says “not arising out of a single
scheme of criminal misconduct”; it does not
say “not arising out of a single criminal act.”
If such latter reading had been the intent of
Congress they could have so declared.
Id. at 830. Indeed, we noted that the Government in Wood’s
case had acted “as if the words ‘not arising out of a single
SZONYI V. WHITAKER 17
scheme of criminal misconduct’ had not been added to the
statute.” Id. at 831. After reviewing the record and
concluding that the Government had failed to show that the
crimes were not part of a single scheme, we remanded the
case “so that proper findings on the proper view of the law
may be made.” Id. at 832.
We have subsequently construed Wood as having gone
beyond the rejection of the BIA’s standard and instead
affirmatively adopting its own alternative construction of the
exception. As we have described it, Wood established that,
where “two predicate crimes were planned at the same time
and executed in accordance with that plan,” they “arise out of
‘a single scheme of criminal misconduct.’” Gonzalez-
Sandoval v. INS, 910 F.2d 614, 616 (9th Cir. 1990) (emphasis
added); see also Szonyi v. Whitaker, 915 F.3d 1228, 1233–34
(9th Cir. 2019) (panel decision in this case).1
The BIA, however, explicitly disagreed with the
Wood/Gonzalez-Sandoval test for determining whether two
crimes “aris[e] out of a single scheme of criminal
misconduct,” and it therefore declined to follow that test in
cases arising in circuits that lacked comparable precedent. As
the BIA explained, the test’s “emphasis on whether the
crimes are planned together and executed in accordance with
that plan” was “clearly unjustified.” Matter of Adetiba,
20 I. & N. Dec. 506, 511 (BIA 1992). According to the BIA,
this emphasis on subjective planning “would result in extreme
absurdities, as it would render” the two-crime deportability
1
It is not entirely clear to me that Wood actually articulated and
adopted the affirmative construction that Gonzalez-Sandoval attributed to
it. But because nothing of consequence turns on the point (at least under
my view of the matter), I will assume that Wood did so.
18 SZONYI V. WHITAKER
rule “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.” Id. Instead, the BIA
reaffirmed Matter of D—’s holding that the two-crimes
deportability rule applies “when an alien has performed an
act, which, in and of itself, constitutes a complete, individual,
and distinct crime, . . . [and] 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.” Id. at 509.
Beyond reaffirming Matter of D— and its progeny, the
BIA in Matter of Adetiba further elaborated that, in the BIA’s
view, the statutory exception to the two-crimes rule for
multiple offenses that arise from a single scheme of criminal
misconduct “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 511. The BIA acknowledged that, in addition to this
court, courts in several other circuits had adopted a broader
reading of the “single scheme” exception, but it nonetheless
stated that it would “continue to follow our approach outside
of those jurisdictions.” Id. at 510.
Matters came to a head, however, after the Supreme
Court’s decision in National Cable & Telecommunications
Association v. Brand X Internet Services, 545 U.S. 967(2005). In Brand X, the Court held that “[a] court’s prior
judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if
SZONYI V. WHITAKER 19
the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no
room for agency discretion.” Id. at 982. Emboldened by
Brand X, the BIA announced in 2011 that it would apply the
construction it had articulated in Matter of Adetiba
nationwide, including in jurisdictions that had previously
disapproved of its interpretation. Matter of Islam, 25 I. & N.
Dec. 637, 641 (BIA 2011). Noting that, even before Brand X,
many circuits had already decided to give Chevron deference
to the construction set forth in Matter of Adetiba, the BIA
reasoned that, in light of Brand X, “the Chevron principle of
deference must be applied to an agency’s interpretation of
ambiguous statutory provisions, even where a court has
previously issued a contrary decision and believes that its
construction was the better one, so long as the agency’s
interpretation is reasonable.” Id. “In light of Chevron and
Brand X, as well as the majority of Federal appellate court
decisions that have given deference to our interpretation in
Matter of Adetiba,” the BIA stated that its “analysis there is
controlling and should now be uniformly applied in all
circuits throughout the country.” Id.II
In upholding the removal of Petitioner Istvan Szonyi, the
BIA applied the construction of “single scheme” it had
articulated in Matter of Adetiba, notwithstanding our prior
decision in Wood, and the panel upheld the BIA’s statutory
construction as reasonable and binding under Chevron and
Brand X.
20 SZONYI V. WHITAKER
A
Szonyi is a native and citizen of Hungary who was
admitted to the United States as a lawful permanent resident
in 1957, when he was four or five years old. Over the last
sixty years, Szonyi has resided exclusively in the United
States.
On the evening of October 10, 1981, after drinking
heavily throughout the day, Szonyi met three young women
(a 19-year-old and two 17-year-olds) outside a nightclub
located next door to the television repair shop where he
worked. After the women were unable to gain admittance
into the nightclub, Szonyi invited them into the repair shop.
Once inside, however, Szonyi pulled out a gun and ordered
all three women to undress. As later described in the
probation officer’s report during Szonyi’s criminal case, “six
hours of sexual horrors ensued,” extending into the early
morning hours of October 11, “with all types of sexual abuse
being committed on the three girls.” The nightmare only
came to an end because one of the women was ultimately
able to strike Szonyi over the head with an ashtray and then
grab his gun. When Szonyi then retrieved a shotgun and
threatened to shoot one of the other women, the same woman
shot him with the gun, striking him in the shoulder. Szonyi
then relented and allowed the women to escape.
Szonyi was arrested later that day. He ultimately pleaded
guilty in December 1981 to a total of four separate counts
involving two of the three women. Specifically, he pleaded
guilty, separately with respect to each of the two women, to
one count of oral copulation in violation of California Penal
Code § 288a(c) and one count of sexual penetration with a
foreign object in violation of California Penal Code § 289.
SZONYI V. WHITAKER 21
Szonyi was sentenced to twelve years in prison, and he was
released on parole in 1988.
B
In November 2005, twenty-four years after commission
of these offenses, the Government commenced removal
proceedings against Szonyi. The Government charged
Szonyi 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 section
237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii).
On September 19, 2011, the immigration judge (“IJ”)
ordered Szonyi removed to Hungary. Applying this Court’s
decisions in Wood and Gonzalez-Sandoval, the IJ found
Szonyi removable because the predicate crimes involved
moral turpitude and, given their spontaneous and
opportunistic occurrence, the crimes did not reflect the sort of
planning necessary to make them part of a single scheme
under this court’s precedent.
Szonyi appealed this decision to the BIA. Because, in the
interim, the BIA had decided in Matter of Islam to apply its
Matter of Adetiba construction in all cases arising under
section 237(a)(2)(A)(ii) of the INA, the BIA remanded the
matter to the IJ to reconsider in light of Matter of Islam.
On remand, the IJ applied Matter of Adetiba and found
Szonyi removable. The IJ again ordered him removed to
Hungary, and the BIA upheld that decision on October 21,
2015.
22 SZONYI V. WHITAKER
C
Szonyi petitioned for review of the BIA’s decision,
arguing that the BIA’s interpretation of “single scheme of
criminal misconduct” was unambiguously foreclosed by the
text of the statute and by this court’s precedent. In light of
Brand X, however, the panel declined to follow Wood and
instead adopted the BIA’s construction.
The panel reasoned that, under Brand X, it must defer to
an agency’s reasonable interpretation of an ambiguous statute
“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.’” Szonyi, 915 F.3d at 1233 (quoting Brand
X, 545 U.S. at 982). Although this court held in Wood that
the BIA’s interpretation “is not what the statute says,” 266
F.2d at 830, the panel concluded that in Wood, “[w]e 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.” Szonyi, 915 F.3d at 1234
(emphasis added). Because nothing in the pre-Chevron
decision in Wood precluded the panel from finding that the
statutory language was ambiguous “under Chevron step one,”
the panel concluded that it was free to reach its own
conclusion on that score, and it held that the provision was
ambiguous. Id.2
2
Under the “two-step framework announced in Chevron,” a court first
“ask[s] whether the statute is ambiguous and, if so,” the court then
addresses, at step two, “whether the agency’s interpretation is reasonable.”
King v. Burwell, 135 S. Ct. 2480, 2488 (2015); see also INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999).
SZONYI V. WHITAKER 23
Moving to step two of Chevron, the panel then upheld the
BIA’s standard as a reasonable interpretation of the
ambiguous phrase “single scheme of criminal misconduct,”
and it therefore denied Szonyi’s petition. Szonyi, 915 F.3d at
1233–35. In the panel’s view, Wood did not preclude it from
reaching this conclusion because Wood “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 1234.
III
My disagreement with the panel is narrowly focused, but
nonetheless significant. For the reasons explained below, see
infra at 23–26, I agree with the panel that Brand X requires us
to apply a Chevron analysis in determining whether,
notwithstanding our prior decision in Wood, we should now
yield to the BIA’s construction of the statutory phrase “not
arising out of a single scheme of criminal misconduct.” With
respect to step one of the Chevron analysis, I agree with the
panel that the statutory language is ambiguous, and that
nothing in Wood requires a contrary conclusion. But in my
view, the construction that has been adopted by the BIA is an
unreasonable reading of the statutory language under
Chevron step two, and it should be rejected.
A
In Brand X, the Supreme Court held that “[a] court’s prior
judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no
room for agency discretion.” 545 U.S. at 982 (emphasis
24 SZONYI V. WHITAKER
added). Under this standard, Wood’s construction of the
“single scheme” language would be deemed controlling, and
would excuse us from deferring to a competing reasonable
interpretation by the BIA, only if Wood compels the
conclusion, at step one of Chevron, that the statute is
unambiguous. As the Court explained, Brand X “hold[s]
judicial interpretations contained in precedents to the same
demanding Chevron step one standard that applies if the court
is reviewing the agency’s construction on a blank slate.” Id.In determining whether a statute is ambiguous, “a court
must exhaust all the ‘traditional tools’ of construction.”
Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (making this
observation with respect to the interpretation of agency rules,
but noting that Chevron “adopt[ed] the same approach for
ambiguous statutes”); see also Epic Sys. Corp. v. Lewis, 138
S. Ct. 1612, 1630 (2018) (explaining that under Chevron,
“deference is not due unless” the traditional tools of
construction do not resolve the ambiguity). I agree with the
panel’s conclusion that, under Chevron step one, the relevant
statutory language at issue here is ambiguous. See Szonyi,
915 F.3d at 1233–34. To say that multiple offenses arise out
of a “single scheme of criminal misconduct” clearly denotes
that those offenses are discernably connected in some
overarching way, either as part of a “plan or program,” a
“crafty, unethical project,” or a “systematic plan” comprising
a “combination of thoughts, theories, or the like, connected
and adjusted by design.” WEBSTER’S 2D NEW INT’L
DICTIONARY 2234 (1934); see also Scheme, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining “scheme” as either a
“systemic plan; a connected or orderly arrangement, esp. of
related concepts” or as an “artful plot or plan, usu. to deceive
others”). But this language leaves substantial room for
judgment as to the critical question of how broadly or
SZONYI V. WHITAKER 25
narrowly to define a “single scheme”—i.e., how much of a
connection is required between separate crimes before they
should be considered part of a single plan, program, or
project. No traditional tool of statutory construction resolves
this ambiguity, because there is no other meaningful textual
clue in the statute and no other applicable canon of
construction provides relevant guidance.3
I also agree with the panel that our decision in Wood
provides no obstacle to concluding that the statute is
ambiguous. Szonyi, 915 F.3d at 1233–34. As we have
construed it, our decision in Wood did two things: (1) it held
that the BIA’s interpretation was inconsistent with the plain
statutory language; and (2) it proceeded to adopt its own
affirmative interpretation. See supra at 16–17. The first of
these holdings does not establish that the statute’s meaning is
unambiguous, because it merely says that the particular
reading adopted by the BIA lacked support in the actual
statutory language. In modern parlance, that is more in the
nature of a Chevron step-two analysis, because it essentially
says that the agency’s reading of the language was
unreasonable. See also infra at 32–33. Nor does our second
holding in Wood establish that the statute is unambiguous,
because Wood adopted its affirmative construction only after
3
Given that the Supreme Court has repeatedly held that “the BIA
should be accorded Chevron deference as it gives ambiguous statutory
terms [in the INA] concrete meaning through a process of case-by-case
adjudication,” Negusie, 555 U.S. at 517 (citations and internal quotation
marks omitted), it seems clear that, at least at step one of Chevron, a court
may not simply rely on “the longstanding principle of construing any
lingering ambiguities in deportation statutes in favor of the alien,” INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987). Invoking such an
immigration rule of lenity at Chevron step one would effectively eliminate
all ambiguities, leaving no room for deference to the BIA at step two.
26 SZONYI V. WHITAKER
noting that the statute did “not define what is a ‘single
scheme of criminal misconduct’”; that “the legislative
history” did not “shed any light on what was the intent of
Congress in drafting this provision”; that “[i]f there is any
doubt as to the interpretation of this provision, that doubt
must be resolved in favor of the alien”; and that there was
sufficient record evidence to allow a conclusion that the
multiple crimes in Wood arose from a “single scheme.” 266
F.2d at 828–30. This second holding in Wood is thus more an
affirmation of ambiguity than a refutation of it.
Because Wood did not hold that the “single scheme”
language was unambiguous or that our affirmative
construction of that phrase “follows from the unambiguous
terms of the statute,” Brand X, 545 U.S. at 982, Wood
provides no justification for “refusing to apply Chevron to the
[BIA’s] interpretation” of that phrase. Id. at 984.
Accordingly, the panel properly proceeded to step two of
Chevron.
B
I disagree with the panel’s conclusion that the BIA’s
construction of the statute is reasonable under Chevron step
two.
1
To decide whether deference must be given to the BIA’s
construction of the phrase “not arising out of a single scheme
of criminal misconduct,” one must first determine what that
construction is. The BIA’s interpretation of that phrase is
actually somewhat hard to discern, because it is not stated in
a single, definitive, self-contained operative test. Rather, the
SZONYI V. WHITAKER 27
BIA’s construction consists of a set of related propositions
that it has repeated in many cases (including this one). Each
of these propositions uses somewhat different phrasing, and
their relation to one another is at first blush not entirely clear.
A careful review of these propositions confirms that, under
the BIA’s construction, the “single scheme” exception applies
only when two crimes follow so closely together that the
offender essentially had no opportunity to cease his activities
and reflect on what he had done. That is the standard that the
BIA applied in rejecting Szonyi’s invocation of the “single
scheme” exception.
a
According to the BIA’s first and most general
proposition, the BIA construes the reference to “conduct not
arising from a single scheme ‘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.’” See Matter
of Szonyi, slip op. at 3 (BIA Oct. 21, 2015) (quoting Matter
of Adetiba, 20 I. & N. Dec. at 509). Taken literally and by
itself, this construction would read the key phrase, “not
arising out of a single scheme of criminal misconduct,” out of
the statute: it says that any two distinct criminal acts render
the alien deportable, and it recites no exception to that rule.
Instead, it simply lists a set of considerations that will not
constitute exceptions to this rule. Because this proposition
says literally nothing about when the exception would apply,
it provides no affirmative construction of the “single scheme”
exception at all.
28 SZONYI V. WHITAKER
b
The BIA’s decision also paired this general rule with the
additional proposition that “two offenses are not part of a
‘single scheme of criminal misconduct’ when the acts are
distinct and neither offense causes (or constitutes) the other.”
See Matter of Szonyi, slip op. at 3 (citing Matter of Adetiba,
20 I. & N. Dec. at 509). The statement that two crimes are
outside the “single scheme” exception only if, at a minimum,
they are “distinct” acts adds literally nothing to the first
proposition discussed above. And, in any event, it is
tautological: if the two crimes are not even distinct acts, but
are rather the same act, then they are part of a “single
scheme” under any conceivable definition.
The BIA’s additional phrase—that the single scheme
exception does not apply when “neither offense causes (or
constitutes) the other”—does provide some affirmative
content to that exception. By defining the conditions in
which the exception will not apply, this proposition logically
tells us what is necessary in the BIA’s view to avoid that rule
of inapplicability: it must be shown that one of the offenses
“causes (or constitutes) the other.” See Matter of Szonyi, slip
op. at 3; see also Matter of Adetiba, 20 I. & N. Dec. at 509.
Accordingly, this second proposition says that two distinct
acts will be considered part of a “single scheme of criminal
misconduct” only if one of the offenses “causes (or
constitutes) the other.”
c
The BIA also recited a third proposition, namely, that “the
single scheme exception relates to acts performed in
furtherance of a single criminal episode even though the acts
SZONYI V. WHITAKER 29
may constitute separate crimes in and of themselves, such as
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.” Matter of Szonyi, slip op. at 3
(quoting Matter of Adetiba, 20 I. & N. Dec. at 509) (internal
quotation marks omitted). On its face, this seems to
acknowledge a broader exception than the second
proposition, because it suggests more generally that any
separate criminal acts “performed in furtherance of a single
criminal episode” will constitute a “single scheme of criminal
misconduct.” But for several reasons, it is clear that the BIA
has not adopted any such broad rule.
Notably, this broader articulation of the “single scheme”
exception is followed by what seem to be two non-exhaustive
examples (which are introduced by the non-limiting phrase
“such as”). Those two examples, however, exactly mirror the
more limited exception articulated in proposition two above.
The first example is “where one crime is a lesser included
offense of another,” which corresponds to the situation in
which one offense “constitutes the other.” The second
example is when “two crimes flow from and are the natural
consequence of a single act of criminal misconduct”
(emphasis added), and that seems to be another way of saying
that one of the offenses “causes . . . the other.” The result is
a certain tension between the BIA’s two articulations of the
exception—one articulation seems to limit it to only two
specific categories (i.e., lesser included offenses and crimes
in which one directly leads to the other), and the other
articulation seems to say that those two categories are merely
illustrative of a broader exception (i.e., a broader exception
under which any crimes that were “performed in furtherance
of a single criminal episode” would be considered a “single
scheme”).
30 SZONYI V. WHITAKER
Szonyi sought to take advantage of that tension by
arguing that his crimes were “performed in furtherance of a
single criminal episode” even though those crimes were not
lesser included offenses of one another and were not crimes
in which one directly caused the others. Indeed, this case
seems to fall precisely in the space between these two
propositions, because Szonyi’s crimes were unquestionably
part of a “single criminal episode” as that phrase would
normally be understood. Thus, if the BIA’s third proposition
were in fact broader than its second proposition, Szonyi
should have won, and the fact that he did not confirms that
the BIA treats this third proposition as adding nothing to the
second. In my view, the panel therefore correctly rejected
Szonyi’s reading of the BIA’s precedent and instead
construed propositions two and three as effectively saying the
same thing. Szonyi, 915 F.3d at 1237.
d
This reading of the BIA’s second and third propositions
is reinforced by a fourth proposition recited by the agency.
The BIA also stated that a second crime does not flow from,
and is not the natural consequence of, the first crime when
each act “accomplished a specific criminal objective in itself”
and the petitioner had “an opportunity to reflect upon one
crime before committing another.” Matter of Szonyi, slip op.
at 3. This was the critical basis on which the IJ and the BIA
rejected petitioner’s argument that his crimes were part of a
single scheme of criminal misconduct: according to the BIA,
“[a]fter the abuse of any one victim, the respondent had the
opportunity to cease his activities and reflect on what he had
done.” Id. at 3. This reasoning and result confirm that the
BIA does not recognize a broader exception under which any
SZONYI V. WHITAKER 31
two crimes that further a single “criminal episode” will be
deemed to “aris[e] out of a single scheme.”
* * *
The bottom line is that, under the BIA’s view, two crimes
are part of a “single scheme of criminal misconduct” only if
one is a lesser included offense of the other or one crime
causally leads to the other in the narrow sense that the BIA
has described. Moreover, the lesser-included-offense rule is
not actually an exception at all, because lesser included
offenses are not properly considered to be two offenses in the
first place. As such, they do not constitute “two or more
crimes involving moral turpitude,” and the BIA’s inclusion of
lesser included offenses in the exception to that two-crimes
rule adds nothing. As a result, the only thing that falls within
the exception, according to the BIA, are two crimes that
follow so closely together that the offender essentially had no
opportunity to cease his activities and reflect on what he had
done.
2
Thus understood, the BIA’s very narrow construction of
the statutory exception may make eminent policy sense, but
it is an unreasonable reading of the actual words in the
statutory phrase “arising out of a single scheme of criminal
misconduct.” It therefore fails step two of the Chevron
analysis.
Under any ordinary usage of the word “scheme,” that
word would not be limited, as the BIA would have it, to a set
of immediately successive actions that are not separated by
any opportunity for deliberation. According to Webster’s
32 SZONYI V. WHITAKER
Second (which is presumably a reasonable reference point for
this 1952 enactment), a “scheme” denotes a “plan or program
of something to be done”; a “project,” especially a “crafty,
unethical project”; or a “systematic plan” comprising a
“combination of thoughts, theories, or the like, connected and
adjusted by design.” WEBSTER’S 2D NEW INT’L DICTIONARY
2234 (1934); see also Scheme, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“scheme” is a “systemic plan; a connected or
orderly arrangement” or an “artful plot or plan”). This
concept of a single plan of interconnected elements is not
captured by the BIA’s construction; indeed, that construction
does not seem to be grounded in any serious analysis of the
meaning of the word “scheme.”
The gap between what the statute says and what the BIA
construes it to mean is perhaps best illustrated by the
following example: under the BIA’s reading, two separate
emails that are sent days apart in furtherance of a single
scheme to defraud (each of which is a separate violation of
the wire fraud statute) would apparently not “aris[e] out of a
single scheme of criminal misconduct.” Under the BIA’s
analysis, each email is a distinct crime (“because the
commission of one can occur without the commission of the
other,” Matter of Szonyi, slip op. at 3); neither is a lesser
included offense of the other; and (given the opportunity for
reflection between the two emails) the second email cannot
be said to have flowed from or to have been caused by the
first. This is an unreasonably narrow and atextual reading of
the statutory exception.
We recognized the fundamental problems in the BIA’s
interpretation more than sixty years ago in our decision in
Wood. On this score, it is critical again to distinguish the two
separate holdings of Wood, in which (1) we rejected the
SZONYI V. WHITAKER 33
BIA’s reading as impermissibly divorced from the statutory
language; and (2) we then proceeded to adopt our own
interpretation. See supra at 16–17. The first holding
necessarily translates, in Chevron step-two terms, into a
conclusion that the BIA’s construction is unreasonable and
not entitled to deference. As Wood explained, the BIA has
effectively rewritten the “single scheme” exception “as if it
read ‘single criminal act.’” 266 F.2d at 830 (emphasis
added); see also id. (statute “says ‘not arising out of a single
scheme of criminal misconduct’; it does not say ‘not arising
out of a single criminal act’”). Because Chevron step two
requires deference only to an agency’s reasonable
construction of the meaning of the words of the ambiguous
statute, it does not require (or permit) us to defer to an
interpretation that essentially rewrites the statute’s text so that
it is more to the agency’s liking. Utility Air Regulatory Grp.
v. EPA, 573 U.S. 302, 328 (2014) (“[A]n agency may not
rewrite clear statutory terms to suit its own sense of how the
statute should operate.”). And we cannot permit an agency to
disregard the legislative text merely because the agency has
adopted a substantively reasonable policy (as is arguably the
case here). The agency’s policy choices must be made within
the bounds established by Congress in adopting the statutory
text that constrains those choices. Where, as here, the agency
has disregarded the limits Congress set in the statutory
language, its policy choice merits no deference under
Chevron.
This aspect of our decision in Wood—i.e., that the
agency’s construction of the “single scheme” exception is not
a permissible interpretation of the statutory text—remains
binding precedent on the panel, and it controls the answer to
the Chevron step-two inquiry. Under Wood, the agency’s
reading of the exception is unreasonable, and it must be
34 SZONYI V. WHITAKER
rejected. Because no subsequent decision of the Supreme
Court or this court has undermined Wood on this point, the
panel was obligated to follow it, and the panel should have
rejected the BIA’s construction. See Miller v. Gammie, 335
F.3d 889, 899–900 (9th Cir. 2003) (en banc). Because the
panel failed to follow controlling precedent on this point, we
should have taken this case en banc.
The panel correctly notes that seemingly all other circuits
have now acquiesced in the BIA’s reading, see 915 F.3d at
1234–35, and it suggests that the BIA’s analysis is not so
unreasonable as to warrant creating a circuit split. That, of
course, is irrelevant under Miller v. Gammie, because the
panel was obligated to follow Ninth Circuit precedent absent
intervening higher authority that is “irreconcilable” with
Wood—and there is none. 335 F.3d at 900. Moreover, in
fairness to the other circuit courts in most of these cases, it is
not clear that the facts presented to them brought into
comparably sharp relief the extraordinary narrowness of the
BIA’s position. See, e.g., Balogun v. INS, 31 F.3d 8, 8–9 (1st
Cir. 1994) (rejecting Ninth Circuit’s Wood test, and holding
that BIA properly rejected petitioner’s expansive view that a
two-year “continuing criminal enterprise” constitutes a
“single scheme”); Chavez-Alvarez v. Attorney Gen., 850 F.3d
583, 586–87 (3d Cir. 2017) (holding that under BIA’s test,
sexual assault was not part of “single scheme” with
subsequent false denials of assault to investigators). But see
Akindemowo v. INS, 61 F.3d 282, 286–87 (4th Cir. 1995)
(endorsing BIA’s narrow reading and applying it to
immediately successive uses of bad checks in two stores on
a single visit to a shopping mall). In all events, we should no
more acquiesce in our sister circuits’ misapplication of
Chevron deference in construing the meaning of the statute
SZONYI V. WHITAKER 35
than we should accede to the BIA’s unwarranted invocation
of that deference.
IV
The last remaining question is what consequence should
follow from the BIA’s flawed construction of the “single
scheme” exception in this case.
I do not believe that the answer should be to require the
BIA to follow the alternative construction that we adopted in
Wood and Gonzalez-Sandoval. Brand X seems to foreclose
that possibility, because it states that “a court’s opinion as to
the best reading of an ambiguous statute an agency is charged
with administering is not authoritative,” and the BIA
therefore remains free to “choose a different construction,
since the agency remains the authoritative interpreter (within
the limits of reason) of such statutes.” 545 U.S. at 983. The
only exception would be if our affirmative reading of the
statute in Wood “follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion.” Id. at
982. For the reasons stated earlier, I agree with the panel that
Wood’s alternative construction is not compelled by the
statutory text. See supra at 25–26.
Indeed, I agree with the BIA, and with some of our sister
circuits, that Wood’s construction is itself wrong. At a
minimum, the Wood test is sufficiently questionable that the
BIA, exercising its authority under Brand X, may properly
adhere to its rejection of that test. Under the Wood test,
where “two predicate crimes were planned at the same time
and executed in accordance with that plan,” they “arise out of
‘a single scheme of criminal misconduct.’” Gonzalez-
Sandoval, 910 F.2d at 616 (emphasis added); see also Szonyi,
36 SZONYI V. WHITAKER
915 F.3d at 1233–34. In my view, the BIA has correctly
criticized this construction of the statute, because it
erroneously gives dispositive weight to the alien’s purely
subjective intention to commit a series of otherwise unrelated
crimes. (Ironically enough, the IJ in this case initially found
that the Wood exception was inapplicable on its own terms
precisely because Szonyi did not pre-plan his crimes.) As the
BIA noted, Wood’s construction would produce anomalous
results: a criminal mastermind who pre-plans an extended
crime spree would escape deportation, but a lesser criminal
who engages in exactly the same spree without such a
preconceived plan would not. Matter of Adetiba, 20 I. & N.
Dec. at 511. I do not disagree with the BIA’s apparent
judgment that the word “scheme” requires some objective
link between the crimes; the problem is instead that the BIA
has defined that objective link so narrowly as to amount to a
“single act” test rather than a “single scheme” test.
Accordingly, it would seem that the proper course would
be to remand the matter to the BIA for it to adopt a new
construction that interprets, rather than rewrites, the statute.
That was also the course the Supreme Court followed when
confronted with an analogous situation in Michigan v. EPA,
135 S. Ct. 2699 (2015). There, after setting aside the
agency’s construction of a statute as unreasonable because it
failed to account for costs, and after holding that the statute
did not “unambiguously” require a particular method of
accounting for cost, the Court left it to the agency on remand
“to decide (as always, within the limits of reasonable
interpretation) how to account for cost.” Id. at 2711.
Because the BIA’s construction is unreasonable, and our
SZONYI V. WHITAKER 37
competing construction is not unambiguously required, the
proper course would be to remand to the agency.4
I respectfully dissent from the denial of rehearing en banc.
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,
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
4
Unless and until the BIA were to adopt a new construction, it would
be premature to address whether applying any such construction to Szonyi
would raise retroactivity concerns. Cf. Szonyi, 915 F.3d at 1235–36
(addressing whether retroactive application of the BIA’s interpretation to
Szonyi was improper).
38 SZONYI V. WHITAKER
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).
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
SZONYI V. WHITAKER 39
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.
II. Removability
Szonyi challenges the BIA’s conclusion that he is
removable because he has been convicted of “two or
40 SZONYI V. WHITAKER
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.
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.
SZONYI V. WHITAKER 41
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).
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
42 SZONYI V. WHITAKER
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
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].
SZONYI V. WHITAKER 43
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
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.
44 SZONYI V. WHITAKER
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
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 V. WHITAKER 45
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
determination, it does not present the same uncertainty
concerns the Supreme Court identified in Johnson and
Dimaya.
3. Retroactive Application of the BIA Standard
46 SZONYI V. WHITAKER
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.
“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
SZONYI V. WHITAKER 47
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 had not clearly indicated whether it would follow these
broader interpretations or its own precedent. It was not until
1992, a decade after Szonyi pled guilty, that the BIA
announced that it would 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 should not have come as a “complete surprise”
that the BIA would apply an interpretation that held him
removable. See Lemus, 842 F.3d at 649. 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.
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).
48 SZONYI V. WHITAKER
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
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.
SZONYI V. WHITAKER 49
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
“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
50 SZONYI V. WHITAKER
“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.
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
SZONYI V. WHITAKER 51
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
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.
52 SZONYI V. WHITAKER
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.
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
SZONYI V. WHITAKER 53
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.
IV. Conclusion
The petition for review is denied.
PETITION FOR REVIEW DENIED.
54 SZONYI V. WHITAKER
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. 48–51. 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
(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
SZONYI V. WHITAKER 55
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
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
56 SZONYI V. WHITAKER
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
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.
SZONYI V. WHITAKER 57
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.
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
58 SZONYI V. WHITAKER
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.
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
SZONYI V. WHITAKER 59
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?
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. 51.
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
60 SZONYI V. WHITAKER
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
“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
SZONYI V. WHITAKER 61
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. 51. 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,
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
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.
62 SZONYI V. WHITAKER
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. 49. 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
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
SZONYI V. WHITAKER 63
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.