BIA Holds That Proximity In Time Is Necessary But Not Sufficient To Conclude That Two Crimes Arise From A Single Scheme Of Criminal Misconduct Under INA §237(a)(2)(A)(ii). Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), Clarified. Two Crimes Involving Moral Turpitude, Premised On Separate Turpitudinous Acts With Different Objectives, Neither of Which Was Committed In The Course Of Accomplishing The Other, Constitute Separate Schemes Of Criminal Misconduct.
On January 31, 2025, the Board of Immigration Appeals (BIA or Board) reversed an order by the Immigration Judge (IJ) terminating removal proceedings on the ground that, while Respondent had been convicted of two crimes involving moral turpitude (CIMTs), they had arisen out of a single scheme of criminal misconduct.
Respondent was admitted to the U.S. as a permanent resident in 1989. Almost 20 years later, driving under the influence of alcohol, he struck a group of pedestrians, killing one and injuring three other members of her family. After striking the four victims, Respondent drove home.
In December 2008, Respondent was convicted of aggravated assault with a deadly weapon in violation of Texas Penal Code §22.02(a)(2) and of failure to stop and render aid in violation of Texas Transportation Code §550.023. DHS charged him with removability under INA §237(a)(2)(A)(ii) for having been, after admission, convicted of two CIMTs not arising out of a single scheme of criminal misconduct; Respondent moved for termination, arguing that the two convictions arose out of a single scheme of criminal misconduct. There was no dispute that both convictions were CIMTs.
The IJ found that Respondent’s convictions arose from a single scheme of criminal misconduct and thus did not support “the sole charge of removability;” he noted there was no significant period of time between the assault and the flight or failure to stop. The judge stated that it would not have been criminal to fail to stop but for “the immediately prior and connected assault.” Yet the Board’s opinion found it consequential that the IJ acknowledged that Respondent’s fleeing the scene “was directly attributable to trying to not be caught for the assault.” The BIA concluded that the only issue was whether Respondent’s convictions arose from a single scheme of criminal misconduct. This question it reviewed de novo.
The Board began its discussion by quoting §237(a)(2)(A)(ii) and citing Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). It noted that it continued to use the initial definition of “single scheme”, including the concept of “relative time.” If one commits a discrete, individual crime and then re-commits such an act, he comes removable provided he is convicted of both; the fact that one follows the others closely, even immediately – warned the decision – does not matter. They can constitute two distinct crimes.
Matter of Adetiba had explained that for there to be a “single scheme,” there must be no substantial interruption between the commission of the CIMTs such that a defendant could “disassociate himself from his enterprise and reflect on what he has done.” Yet, that decision, found the Board, only held that a substantial interruption established that two crimes were not part of a single scheme; the converse was not true, e.g., the fact that there was no substantial interruption did not establish that two crimes were part of a single scheme. In fact, a line of BIA decisions held that “the absence of intervening time, while relevant, is not sufficient to conclusively show that two crimes are part of a single scheme.
Adetiba had concluded that where there is a substantial interruption between two crimes, those crimes are necessarily the result of separate schemes. However, summarized the opinion, two crimes close in time may or may not be part of a single scheme – they may even be entirely unrelated. Proximity in time is necessary, but not sufficient, to find that two crimes arose from a single scheme per §237(a)(2)(A)(ii). Thus, an IJ should not rely “only on the absence of intervening time” to find that two CIMTs arose out of a single scheme of criminal misconduct.
Further, found the Board, the original version of 237(a)(2)(A)(ii) had provided that one who was “sentenced more than once” to a term of imprisonment of one year or more for a CIMT was deportable. In 1948, the U.S. Supreme Court held that this section applied only if the multiple convictions were entered after separate trials. Four years later, Congress enacted a new provision that applied regardless of whether the convictions resulted from a single trial, but added the limitations that they had not arisen out of a single scheme of criminal misconduct. The legislation sought to protect from deportation those twice convicted for what was essentially one act. Although such criminal episodes, concluded the BIA, involved multiple turpitudinous acts, it would be contrary to Congress’ intent “to treat them as separate schemes where they are committed with the same overall objective, and the commission of one crime occurs in the course of accomplishing another.”
Therefore, determining whether multiple offenses arose from a single scheme may require specific fact-finding. However, here, noted the BIA, the IJ had already found that the Respondent’s failure to stop was directly attributable to trying not to be caught, not to completing the hit-and-run. Additionally, it was “logically necessary” for the assault to have occurred first. Still, “the aggravated assault with a deadly weapon was not intended to facilitate the accomplishment of later failing to stop and render aid.” And nothing in the record suggested that Respondent intentionally drove into his victims so that he could flee, leaving them dead and injured.
The Board thus held that two CIMTs, premised on separate turpitudinous acts with different objectives, neither of which was committed in the course of accomplishing the other, constitute separate schemes of criminal misconduct. Respondent was therefore removable under §237(a)(2)(A)(ii). The appeal was sustained, the IJ’s decision reversed, and the record remanded for entry of a new order. Matter of Baeza-Galindo, 29 I&N Dec. 1 (BIA 2025).
