Szonyi v. Whitaker, 15-73514

• Decision Date: 13 February 2019
• Docket Number: No. 15-73514,15-73514
• Citation: 915 F.3d 1228
• Parties: Istvan SZONYI, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

915 F.3d 1228

Istvan SZONYI, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 15-73514

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2018 Portland, Oregon

Filed February 13, 2019

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 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 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 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.

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, 104 S.Ct. 2778. If Congress has done so, the court "must give effect to the unambiguously expressed intent of Congress." Id. at 843, 104 S.Ct. 2778. If Congress has not specifically addressed the question, the court must defer to the agency’s interpretation if it is "based 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, 125 S.Ct. 2688, 162 L.Ed.2d 820 (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].

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...