Matter of Adetiba
| Citation | 20 I&N Dec. 506 |
| Decision Date | 22 May 1992 |
| Docket Number | Interim Decision Number 3177,A-29571508 |
| Parties | MATTER OF ADETIBA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 3, 1992, an immigration judge found the respondent deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (Supp. II 1990), as an alien who at any time after entry is convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, and ordered him deported from the United States to Nigeria. The respondent has appealed from that decision. The appeal will be dismissed. The request for oral argument is denied. 8 C.F.R. § 3.1(e) (1992).
We first note that the immigration judge's decision incorrectly indicates that the respondent conceded deportability. He did not. He denied allegation 6 in the Order to Show Cause and Notice of Hearing (Form I-221), and the Order to Show Cause reflects that he denied the charge of deportability. Accordingly, the Board will review the record de novo. See Matter of Lok, 18 I&N Dec. 101, 106 (BIA 1981), aff'd on other grounds, 681 F.2d 107 (2d Cir. 1982) (). We also note that the respondent has offered the indictment from his criminal record on appeal and that the Immigration and Naturalization Service has not objected to its consideration.
The respondent, a native and citizen of Nigeria, entered the United States as a nonimmigrant visitor on October 27, 1980, and his status was adjusted to that of a lawful permanent resident on June 8, 1989. On October 15, 1990, he was convicted in the United States District Court for the Eastern District of North Carolina of the following offenses: four counts of fraud in violation of 18 U.S.C. § 1341 (1988); four counts of using fictitious names and addresses in violation of 18 U.S.C. § 1342 (1988); four counts of having falsely represented a social security number assigned by the Secretary of the United States Department of Health and Human Services in violation of 42 U.S.C. § 408 (1988); and three counts of fraud and related activity in connection with access devices in violation of 18 U.S.C. § 1029(a)(2) (1988). The conviction record was accepted into evidence at the hearing. On October 23, 1991, the United States Court of Appeals for the Fourth Circuit dismissed the respondent's direct appeal of his conviction. On November 29, 1991, the respondent filed a petition for rehearing with the Fourth Circuit.
For 11 of the counts, the respondent received a sentence of 3 years' imprisonment for each count, to run concurrently with each other. For the remaining four counts, he was placed on 5 years' probation. He was also assessed a fine of $2,000 and, as a condition of probation, was ordered to pay $71,386.19 as restitution. A monetary assessment of $750 was also imposed.
The respondent does not contest that the crimes of which he was convicted involve moral turpitude. Fraud, as a general rule, has been held to involve moral turpitude. Jordan v. De George, 341 U.S. 223 (1951); Matter of Flores, 17 I&N Dec. 225 (BIA 1980).
If the respondent had been convicted of only a single crime involving moral turpitude committed within 5 years of "entry" into the United States, he would also be deportable under section 241(a)(2)(A)(i) of the Act. However, it appears from the record before us that the respondent's last "entry" occurred on October 27, 1980, and the crimes in question were committed between June of 1986 and May of 1987. The respondent's status was adjusted to that of a lawful permanent resident on June 8, 1989, but this does not constitute an "entry" for purposes of section 241(a)(2)(A)(i) of the Act. See Matter of Connelly, 19 I&N Dec. 156 (BIA 1984). As reflected by the Order to Show Cause, the respondent is solely charged with deportability under section 241(a)(2)(A)(ii) of the Act on the basis that at any time after entry, he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
The immigration judge found that the respondent's conviction was final for immigration purposes based on the conviction record and the dismissal of his direct appeal by the Fourth Circuit. Thus, he found the respondent deportable as charged and ordered him deported to Nigeria.
The facts regarding the circumstances of the respondent's crimes are not in dispute. The respondent applied for four credit cards in the names of four different individuals, using fictitious names, addresses, and social security numbers, and he was issued three of those cards. Upon receipt of these cards, the respondent, during various periods in 1986 and 1987, obtained or attempted to obtain things of an aggregate value of $1,000 or more for each card from Gulf Products Division, BP Oil, Inc. He also caused others to use the falsely obtained cards.
On appeal, the respondent contends that the immigration judge erred in concluding that his conviction was final for immigration purposes. However, it is well established that a conviction attains a sufficient degree of finality for immigration purposes when direct appellate review of the conviction has been exhausted. See Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988). Therefore, the possibility of a decision on any post-conviction motion that has been filed does not affect our finding that the respondent is deportable. See Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) ().
The respondent also asserts that his crimes arose out of a single scheme of criminal misconduct. He maintains that the courts in most jurisdictions have rejected the Board's historical view of the issue, following the lead case of Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). The respondent emphasizes that the crimes of which he was convicted were all part of a single scheme which was elaborately planned. As evidence of the single scheme, the respondent points out that the indictment refers to him having "devised a scheme" and doing acts "in furtherance of the aforesaid scheme."
Section 241(a)(2)(A)(ii) of the Act provides as follows:
Multiple criminal convictions. — Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
Neither the language of the above statutory provision nor the legislative history provides any assistance or insight into what Congress meant by the phrase "single scheme of criminal misconduct." See Wood v. Hoy, supra; Matter of Vosganian, 12 I&N Dec. 1 (BIA 1966). In the past, the Board has interpreted this language to mean that when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. This interpretation, which we continue to view as the more reasonable one, recognized that the statutory language was meant to distinguish cases where there are separate and distinct crimes but they are performed in furtherance of a single criminal episode. See Matter of B----, 8 I&N Dec. 236 (BIA 1958); Matter of M----, 7 I&N Dec. 144 (BIA 1956);...
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