
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1011                                            HENRY OLAWALE BALOGUN,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                  __________________                            ON PETITION FOR REVIEW OF AN                        ORDER OF THE BOARD OF IMMIGRATION APPEALS                                 ___________________                                        Before                              Torruella, Selya and Cyr,                                    Circuit Judges                                    ______________                                 ___________________               Henry Olawale Balogun on brief pro se.               _____________________               Frank  W, Hunger,  Assistant  Attorney  General, Richard  M.               ________________                                 ___________          Evans, Assistant Director, and John L. Davis, Attorney, Office of          _____                          _____________          Immigration Litigation, on brief for respondent.                                  __________________                                    July 28, 1994                                  __________________                      Per  Curiam.   Petitioner seeks  review of  a final                      ___________            order  of deportation  by  the Board  of Immigration  Appeals            (BIA).  His sole argument on  appeal is that the BIA erred in            finding  him deportable under the Immigration and Nationality            Act,    8  U.S.C.    1251(a)(2)(A)(ii), because  he had  been            convicted  of two crimes of moral  turpitude "not arising out            of  a  single scheme  of  criminal  misconduct."   Petitioner            argues that  his convictions  should be construed  as arising            from a "single scheme" because they were part of a continuing            criminal  enterprise.    He  asserts  that  his  crimes  thus            "morally constitute only a single wrong."                       Petitioner pled  guilty in a United States district            court  to one count of  conspiracy to commit  mail fraud, and            three counts of mail fraud.  The indictment charged that from            about  April 1, 1989 to  October 16, 1991,  he conspired with            others  to use the mails to submit false accident reports and            claims to various insurance companies.  The  specific acts of            fraud  to  which petitioner  pled  guilty  occurred on  three            separate  dates:   October  16,  1990, October  21,  1991 and            November  15,  1991.   The  crimes  involved three  different            insurance  companies,  separate  locations, and  the  use  by            petitioner  of  three different  aliases.1   Petitioner's 33-                                            ____________________            1.  Petitioner  does  not  deny  the accuracy  of  the  facts            recited in  the indictment.   At the  deportation hearing  he            admitted participating  in the  filing of 124  false accident            reports, and receiving $217,000 therefrom.                                            -2-            month  sentence  was affirmed  on appeal.   United  States v.                                                        ______________            Balogun, 989 F.2d 20 (1st Cir. 1993).               _______                      In Pacheco  v. INS, 546  F.2d 448 (1st  Cir. 1976),                         _______     ___            cert. denied, 430 U.S. 985 (1977), we interpreted the meaning            ____________            of the  statutory language  "single scheme"  in light  of the            purpose of the Act, accepting that the intent of Congress was            to give  "a one-time  alien offender .  . .  a second  chance            before he could be deported."  Pacheco, 546 F.2d at 451.                                           _______                 To us this suggests that 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.                 . . . .                  Our present  thinking is  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.   He  need not  further  pursue a                 multistage scheme.                          Id. at 451-52.             ___                      Petitioner implicitly recognizes that under Pacheco                                                                  _______            his  crimes cannot be characterized as a "single scheme."  He            argues,  however,  that  this  court should  apply  the  more            "expansive  definition" adopted  by  the Ninth  Circuit.   In            Gonzalez-Sandoval v. INS, 910  F.2d 614 (9th Cir. 1990),  the            _________________    ___            Ninth Circuit reaffirmed the approach it  had adopted in Wood                                                                     ____            v.  Hoy, 266  F.2d  825 (9th  Cir.  1959), holding  that  the                ___            government had not disproved the existence of a single scheme                                         -3-            where uncontradicted, credible  evidence showed that the  two            predicate crimes were  planned at the same time  and executed            according to the plan.  Older cases from the Second and Third            Circuits suggest a similarly expansive definition.  See Nason                                                                ___ _____            v. INS, 394  F.2d 223 (2d Cir.),  cert. denied, 393  U.S. 830               ___                            ____________            (1968); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).                    ______    ___                        In  Pacheco,  however, we  rejected  the approach                            _______            upon  which  petitioner  relies.    Moreover,  in  Matter  of                                                               __________            Adetiba, Interim  Dec. 3177, 1992  WL 195812 (B.I.A.  May 22,            _______            1992),  the  BIA  declined   to  adopt  the  Ninth  Circuit's            "expansive definition," fearing  that it might  insulate from            deportability  aliens who  formulate  a plan  to commit  many            separate crimes, while deporting  those who commit two crimes            without a plan.  That result,  the BIA said, would be absurd.            Adetiba, 1992  WL  195812,  at  *5.   The  BIA  characterized            _______            Pacheco  as  following most  closely  its  own analysis,  and            _______            decided that  except in  jurisdictions where a  circuit court            has  ruled  otherwise,  it  would interpret  the  statute  as            follows:                   [T]he statutory  exception  refers to  acts,  which                 although separate crimes in and of themselves, were                 performed  in  furtherance  of  a  single  criminal                 episode,  such  as where  one  crime constitutes  a                 lesser offense of another  or where two crimes flow                 from and  are the  natural consequence of  a single                 act of criminal misconduct.              Id.  at *5.   Since then,  the Fifth and  Tenth Circuits have            ___            upheld the BIA's definition as a reasonable interpretation of                                         -4-            the law.   See Thanh Huu  Nguyen v. INS,  991 F.2d 621  (10th                       ___ _________________    ___            Cir. 1993)  (adopting the  BIA's definition after  giving due            deference to the agency's  interpretation of ambiguous law as            required  by  Chevron,  U.S.A.,  Inc.  v.  Natural  Resources                          _______________________      __________________            Defense Council, Inc.,  467 U.S. 837 (1984));  Iredia v. INS,            _____________________                          ______    ___            981 F.2d 847 (5th Cir.) (same), cert.  denied, 114 S. Ct. 203                                            _____________            (1993).                       In this case petitioner's separate  crimes involved            separate acts,  different  victims, and  occurred  on  widely            separated dates.   Petitioner had  ample opportunity  between            crimes to change direction.   Accordingly, his convictions do            not  arise from a "single  scheme" as defined  in Pacheco and                                                              _______            Adetiba.   We need not decide how a more expansive definition            _______            might  affect   this  case,  because  petitioner   offers  no            persuasive  reason  for deviating  from our  own longstanding            interpretation and the majority of recent decisions.                              The order  of the Board of  Immigration Appeals is            affirmed.            ________                                                                                       -5-
