                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-2072



ABHIJIT PARIKH,

                                                          Petitioner,

          versus

ALBERTO R. GONZALES, Attorney General,

                                                          Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A76-145-383)


Argued:   September 19, 2005             Decided:   November 18, 2005


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the Southern
District of West Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Dean Edwards Wanderer, DEAN E. WANDERER & ASSOCIATES,
Fairfax, Virginia, for Petitioner. Carol Federighi, UNITED STATES
DEPARTMENT   OF  JUSTICE, Office    of   Immigration  Litigation,
Washington, D.C., for Respondent.    ON BRIEF: Peter D. Keisler,
Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant
Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Abhijit   Parikh    was   admitted   to    the   United   States   as   a

conditional resident on June 2, 2000.               J.A. 5, 91.      In 2003,

following his conviction for six offenses associated with credit

card   fraud,    the    Government    initiated    deportation     proceedings

pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii). The Immigration

Judge found that Parikh qualified for deportation under either

subsection and the Board of Immigration Appeals (BIA) affirmed.

J.A. 61, 209.          Parikh appeals.      As explained herein, we deny

Parikh’s petition for review.



                                       I.

       Abhijit Parikh, while a student at James Madison University,

fraudulently used a credit card to obtain goods from a Wal-Mart and

a Hess gas station on August 29, 2003.            J.A. 7–18.     Specifically,

he obtained milk, cigarettes, gas, an x-box video game system, and

several video games.       J.A. 69.   He pleaded guilty and was convicted

of two counts of credit card fraud, two counts of using a false

statement to obtain credit, and two counts of receiving goods via

credit card fraud.        Petr.’s Br. 2.    The two counts of credit card

fraud, in violation of Virginia Code section 18.2-195, are Class 1

misdemeanors that carry a maximum penalty of one year imprisonment.

J.A. 5.




                                       2
     The Government instituted deportation proceedings and claimed

Parikh was subject to removal in two ways under the Immigration and

Nationality Act (INA).     J.A. 3–6.   The first was under section

237(a)(2)(A)(i) of the INA, which provides:

     Any alien who is convicted of a crime involving moral
     turpitude committed within five years after the date of
     admission, and is convicted of a crime for which a
     sentence of one year or longer may be imposed, is
     deportable.

8 U.S.C. § 1227(a)(2)(A)(i) (2000).    The Government also contended

that Parikh was subject to removal under section 237(a)(2)(A)(ii)

of the INA, which provides:

     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) (2000).     The Immigration Judge found

Parikh removable under either section.     J.A. 61.

     Parikh timely filed an appeal with the BIA.      J.A. 69.   While

the appeal was pending, however, the Virginia state court ruled on

a Petition for Writ of Error Corum Vobis that Parikh had filed.

J.A. 68–71.    Parikh requested that the Virginia state court modify

his convictions to prevent deportation.     He asserted he would not

have pleaded guilty to the original charges had he known he would

be deported.    Petr.’s Br. 10.   In his Petition, Parikh stated:

     If the Petitioner, the Judge, or the      Counsel for the
     Petitioner had been aware of the           future removal
     requirement caused by their decisions,    each could have
     acted or advised differently as the       consequences of

                                   3
       deportation on the Petitioner and his family would have
       far - far harsher effects than the sentence imposed.

J.A.   92.     The   state   court       chose   to   modify   all    of    Parikh’s

convictions by changing each of them to convictions for making a

false statement to obtain credit in violation of Virginia Code

section 18.2-186(A), a Class 2 misdemeanor that carries a maximum

sentence of six months imprisonment. Va. Code Ann. 18.2-11 (2005).

Because the new convictions did not carry maximum penalties of one

year imprisonment, Parikh filed a motion to remand with the BIA in

addition to the direct appeal.            J.A. 182–83.

       The BIA was unpersuaded by Parikh’s argument that the vacated

convictions had no effect.               The BIA explained that the state

court’s decision to vacate the original convictions had no effect

on the immigration proceedings because the original convictions

were vacated "for reasons unrelated to the merits of the underlying

criminal     proceedings."        J.A.    209.     Because     Parikh      failed   to

identify any procedural or substantive defects in the underlying

criminal     proceedings,    he    remained      "convicted"    for     immigration

purposes.     J.A. 209.      The BIA affirmed the Immigration Judge’s

ruling that Parikh was deportable under either section.                         This

appeal followed.



                                         II.

       The court has jurisdiction to review the petition to the

extent it raises constitutional claims or questions of law.                          8

                                          4
U.S.C. § 1252(a)(2)(D).    Because Parikh’s petition raises legal

issues, specifically the nature of his convictions, this court has

jurisdiction to review Parikh’s petition for removal.   This court

agrees with the Immigration Judge and the BIA’s findings that

Parikh is removable under either section.



                                 A.

     First, Parikh is removable under section 237(a)(2)(A)(i).

Parikh’s vacated convictions, which carry maximum penalties of

imprisonment of at least one year, still govern for immigration

purposes.   The substituted convictions that have maximum penalties

of six months imprisonment do not govern this review.

     If an alien’s conviction is vacated because of a defect in the

underlying criminal proceedings, the BIA has ruled that the alien

is no longer "convicted" as defined by the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA).1   J.A. 209.   The


     1
      In 1996, Congress passed the IIRIRA, which provided a
definition of "conviction" for immigration purposes.      8 U.S.C.
§ 1101(a)(48)(A) (2000). According to the statute, an alien is
"convicted" when a court enters a formal judgment of guilt against
him. Id. This definition, however, does not explain the effect of
an order entered after the conviction that substitutes a new
sentence. As a result, the BIA’s interpretation of the statute
will govern if it is reasonable. See Chevron v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984) ("[I]f the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on
a permissible construction of the statute."). Immigration law’s
highly complex regulatory scheme makes deference in this area
"particularly apropos." Pauley v. Bethenergy Mines, Inc., 501 U.S.
680, 697 (1991).

                                 5
alien, however, remains "convicted" for immigration purposes if the

original conviction is vacated for reasons not related to the

merits of the underlying criminal proceedings. In re Pickering, 23

I. & N. Dec. 621, 624 (BIA 2003).       The BIA has explained that

"there is a significant distinction between convictions vacated on

the basis of a procedural or substantive defect in the underlying

proceedings and those vacated because of post-conviction events,

such as rehabilitation or immigration hardships."    Id.

     As the Tenth Circuit recently explained, the treatment of

vacated convictions is well settled.    Cruz-Garza v. Ashcroft, 396

F.3d 1125, 1129 (10th Cir. 2005).   Courts considering this issue

have deferred to the BIA’s approach.2   This court joins its sister

circuits in finding the BIA’s approach reasonable and entitled to

Chevron deference.



     2
     Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000);
Acosta v. Ashcroft, 341 F.3d 218, 225 (3d Cir. 2003); Gill v.
Ashcroft, 335 F.3d 574, 578 (7th Cir. 2003); Ikenokwalu-White v.
INS, 316 F.3d 798, 804 (8th Cir. 2003); Cruz-Garza, 396 F.3d at
1128-29; Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262,
1270-71 (11th Cir. 2004).

     The only courts that have not deferred to the BIA’s approach
are the Fifth Circuit, which has adopted a narrower reading of
"conviction," Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th
Cir. 2002) (allowing removal even if the vacated conviction was
vacated on grounds relating to the merits of the underlying
criminal proceeding), and the Ninth Circuit, which originally found
the BIA’s approach "highly unpersuasive," Lujan-Armendariz v. INS,
222 F.3d 728, 742 (9th Cir. 2000), but is now more in line with
other courts. Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.
2001) (finding the BIA’s approach to be a "permissible construction
of the statute”).

                                6
       In this case, the BIA found that the only evidence in the

record    indicating     the     basis    for    vacating   Parikh’s    original

convictions was his Petition for Writ of Error Corum Vobis.                 J.A.

209.   In the Petition, Parikh states he did not know that pleading

guilty    to    the    charges    he     faced    would   trigger     deportation

proceedings. J.A. 90-93. Parikh does not challenge the underlying

substance of his conviction or sentence. In fact, in his Petition,

Parikh states, "It is clear that the sentence imposed by the Judge

was appropriate but not a sever[e] one."               J.A. 92.     Parikh failed

to offer any evidence that he was challenging the substance of the

underlying criminal proceedings, which caused the BIA to conclude

that his original convictions were vacated solely for immigration

hardships.      J.A. 209.    Therefore, the original convictions remain

convictions for the purposes of this proceeding and make Parikh

removable under section 237(a)(2)(A)(i).               J.A. 209.



                                         B.

       Parikh   also    is   removable        under   section   237(a)(2)(A)(ii)

because he received multiple convictions for crimes of moral

turpitude that did not arise out of a single scheme of criminal

misconduct.      The BIA has interpreted this section’s reference to

conduct not arising from a single scheme "to mean 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


                                          7
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."          In re Adetiba, 20 I. & N. Dec. 506, 509–11

(BIA 1992).      This court has accepted the BIA’s interpretation of

this subsection as reasonable and controlling.                Akindemowo v. INS,

61 F.3d 282, 286 (4th Cir. 1995).

      The fact that all of Parikh’s convictions cover conduct

occurring   on    the    same    day   is    irrelevant.       One    set    of   the

convictions arises from Parikh’s fraud upon a Hess gas station and

the other set arises from his fraud upon Wal-Mart.                 The presence of

separate victims supports a finding that the offenses did not

constitute a single scheme of conduct.                See id. at 287 (finding

fraudulent checks made out to separate victims weighed against

single   scheme).        The    presence     of    separate   convictions,        the

existence of an opportunity to reflect upon one crime before

committing another, and the existence of a time period between the

two   offenses    also    weigh     against       finding   that     the    offenses

constituted a single scheme.           Id.    In this case, Parikh received

separate convictions and some time elapsed between the fraud on

Wal-Mart and the fraud on the gas station.              The court agrees with

the Immigration Judge and the BIA in finding that Parikh was

convicted of multiple offenses of moral turpitude not arising from

a single scheme.




                                        8
                                    III.

     While Parikh’s appeal was pending with the BIA, he also

submitted an application for a waiver of inadmissibility pursuant

to section 212(h) of the INA.         J.A. 209.   The BIA found Parikh

ineligible for a waiver of inadmissibility because he had not

accrued seven years of lawful residence in the United States.           The

BIA also noted that the waiver application was not accompanied by

a fee receipt, a fee waiver, or an approved Form I-130 establishing

he had an immigrant visa immediately available.          J.A. 209.   This

court finds that the BIA did not err in denying Parikh’s request

for a waiver of inadmissibility.



                                    IV.

     Accordingly, the court denies Parikh’s petition for review

because   Parikh   is   removable   under   section   237(a)(2)(A)(i)   or

237(a)(2)(A)(ii) of the INA.    The court also finds that the BIA did

not err in denying his request for a waiver of inadmissibility

under section 212(h).



                                             PETITION FOR REVIEW DENIED




                                     9
