Akindemowo v. U.S. I.N.S.

• Decision Date: 10 August 1995
• Docket Number: No. 94-1544,94-1544
• Parties: Peter Frampton AKINDEMOWO, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 282

61 F.3d 282

Peter Frampton AKINDEMOWO, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 94-1544.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1995.

Decided Aug. 10, 1995.

ARGUED: Emmanuel Damascus Akpan, Baird & Akpan, Washington, DC, for petitioner. Francesco Isgro, Sr. Litigation Counsel, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent. ON BRIEF: Frank W. Hunger, Asst. Atty. Gen., Philemina McNeill Jones, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent.

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

Petition denied and deportation affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge LUTTIG and Judge WILLIAMS joined.

OPINION

HAMILTON, Circuit Judge:

Appellant Peter Akindemowo (Akindemowo) was ordered deported pursuant to 8 U.S.C.A. Sec. 1251(a)(2)(A)(ii) (West 1995) by an immigration judge (IJ), who concluded that Akindemowo committed two crimes of moral turpitude not arising out of a single scheme of criminal misconduct. The Board of Immigration Appeals (BIA) affirmed the order of deportation. Akindemowo appeals, contending that his crimes arose from a single scheme of criminal misconduct and thus he was improperly ordered deported under Sec. 1251(a)(2)(A)(ii). Concluding that Akindemowo committed two separate crimes of moral turpitude not arising out of a single scheme of criminal misconduct, we deny his petition for review and affirm the order of deportation.

I.

The material facts are not disputed. Akindemowo a/k/a Ali Hakim a/k/a John Abikwe is a native and citizen of Nigeria who entered the United States as an immigrant on October 6, 1986. In the Fall of 1987, Akindemowo planned to travel to Nigeria, and in connection with his proposed journey, he prepared a list of goods he intended to take with him: bracelets, cologne, a microwave oven, and a compact disc player. Akindemowo's ability to pay for these goods, however, did not equal his desire to obtain them; accordingly, he knowingly tendered fraudulent checks on a closed bank account bearing the name of one of his aliases and used these checks to acquire the goods.

On or about October 21, 1987, Akindemowo went to the Spottsylvania Shopping Mall to begin carrying out his criminal activity. First, he went to Nichols Department Store and tendered a fraudulent check on the closed bank account for a microwave oven and a compact disc player using the alias Ali Hakim. Second, Akindemowo entered Leggett's Department Store, and, again under the alias of Ali Hakim, he obtained a bottle of cologne by tendering a fraudulent check on the closed bank account. Finally, he ventured to Best Jewelry Store and attempted to purchase a gold bracelet and an onyx ring by tendering another fraudulent check on the closed account using the alias Ali Hakim. Akindemowo's check, however, failed to clear, and, while attempting to depart from Best Jewelry Store, he was arrested. Subsequently, Akindemowo was convicted of grand larceny by false pretenses for tendering a fraudulent check to Nichols Department Store, see Va.Code Ann. Sec. 18.2-178 (Michie 1988), and of attempted grand larceny by false pretenses for attempting to tender another fraudulent check to Best Jewelry Store, see Va.Code Ann. Secs. 18.2-26, 18.2-178 (Michie 1988). There is no explanation in the record with respect to any action taken against Akindemowo with respect to the cologne obtained from Leggett's Department Store. Akindemowo appealed unsuccessfully to the Court of Appeals of Virginia, which denied his petition for review.

Akindemowo's convictions precipitated the Immigration and Naturalization Service (INS) to issue a show cause order to Akindemowo, stating that he was subject to deportation under Sec. 1251(a)(2)(A)(ii) as an alien who had been convicted of two crimes of moral turpitude not arising out of a single scheme of criminal misconduct. At his deportation hearing, Akindemowo admitted that he was convicted under Virginia law, committed grand larceny and attempted grand larceny, but denied deportability pursuant to Sec. 1251(a)(2)(A)(ii), asserting that his convictions arose out of a single scheme of criminal misconduct. Explaining that Akindemowo tendered separate fraudulent checks to separate victims and that he had the opportunity to reflect upon and disassociate himself from each separate crime but failed to do so, the IJ concluded that Akindemowo's crimes did not arise out of a single scheme of criminal misconduct; accordingly, he ordered Akindemowo deported. Akindemowo appealed to the BIA, which affirmed the order of deportation.

Akindemowo petitions this court to review the judgment of the BIA. He does not challenge the conclusion that he committed the crimes, nor that the crimes constituted crimes of moral turpitude. Rather, Akindemowo asserts that his crimes arose out of a single scheme of criminal misconduct; accordingly, he contends that Sec. 1251(a)(2)(A)(ii) does not apply, and hence he cannot be deported. Conversely, the INS posits that Akindemowo's crimes did not arise out of a single scheme of criminal misconduct, thereby triggering Sec. 1251(a)(2)(A)(ii) and the resulting deportation.

II.

A.

Akindemowo was ordered deported pursuant to Sec. 1251(a)(2)(A)(ii), which provides in pertinent part:

Any alien ... in the United States shall, upon the order of the Attorney General, be deported if the alien is within one or more of the following classes of deportable aliens:

....

Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

The courts have recognized that neither Sec. 1251(a)(2)(A)(ii) nor its legislative history sheds light on what constitutes a "single scheme of criminal misconduct" for purposes of deporting aliens, thereby finding the statutory language ambiguous. See, e.g., Thanh Huu Nguyen v. INS, 991 F.2d 621, 623 (10th Cir.1993); Pacheco v. INS, 546 F.2d 448, 449 (1st Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1683, 52 L.Ed.2d 380 (1977). The ambiguity springs from the fact that there is no differentiation between a "single scheme" and the fact that a "single scheme" may comprise any number of discrete acts extending over an indefinite period of time. See id. at 451. We are confronted, therefore, with an instance in which neither Congress nor the statute provides guidance to the court for resolution of the issue. If so confronted, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), directs us not to impose automatically our own interpretation of the statute, but rather to apply the interpretation of the administrative agency charged with implementing the statute, provided the agency's interpretation "is based on a permissible construction of the statute." The Court has adhered consistently to this precept, see, e.g., Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696-97, 111 S.Ct. 2524, 2534, 115 L.Ed.2d 604 (1991); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87, 95 S.Ct. 1470, 1485-86, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965), explaining that agencies not only possess the expertise to implement statutes and implement them at Congressional directive, but also that agencies formulate their interpretations of statutory language based on policy considerations, which are manifested by the elected branches of our federal system, see Pauley, 501 U.S. at 681, 111 S.Ct. at 2526. As the Chevron Court elucidated, "federal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do," Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. Under Chevron, therefore, we accord considerable deference to the agency's interpretation of the statute, and " 'we should not disturb [that interpretation] unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned,' " id. at 845, 104 S.Ct at 2783 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). Thus, if the agency's interpretation is "rational and consistent with the statute," NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 421, 98 L.Ed.2d 429 (1987), we defer to that interpretation. Deference to the agency's interpretation is particularly apropos here because the immigration laws "ha[ve] produced a complex and highly technical regulatory program" entailing policy determinations that fall within the ambit of agency expertise. Pauley, 501 U.S. at 697, 111 S.Ct. at 2534. On several instances, this court has applied Chevron to sustain the interpretation of an agency. See, e.g. De Osorio v. United States INS, 10 F.3d 1034, 1037-39 (4th Cir.1993) (holding that the BIA's interpretation of immigration laws was reasonable, and thus upheld, and under this interpretation, the aliens were properly deported); Maryland Dep't of Human Resources v. United States Dep't of Agric., 976 F.2d 1462, 1469-1473 (4th Cir.1992) (reversing the district court for substituting its interpretation of the energy assistance provisions of the Food Stamp Act and sustaining the interpretation of the Department of Agriculture); Lee v. Consolidation Coal Co., 843 F.2d 159, 162 (4th Cir.1988) (upholding the interpretation of the Director of Workers' Compensation in construing Black Lung Act and noting that because the Director's interpretation was reasonable, it could not be overturned by the court of appeals); Monger v. Bowen, 817 F.2d 15, 17-18 (4th Cir.1987) (ruling that the Secretary of Health and Human...