On November 18, 2011 in the Matter of Islam, 25 I&N Dec. 637 (BIA 2011), the Board of Immigration Appeals (BIA) narrowed the interpretation and application of the phrase "single scheme of misconduct.” In Islam, the defendant/respondent had been convicted using "two different credit and debit cards belonging to [another individual] on five separate occasions to purchase goods" and he "drove to four different locations and made five purchases over the span of a few hours." The Immigration Judge found he had time to "dissociate himself and reflect on what he had done." Without inquiring as to Respondent's state of mind or his plan for obtaining the cards and using the cards, the IJ found him subject to removal. The BIA affirmed the IJ's decision and dismissed the appeal.
In determining an immigration appeal, there are generally five types of legal arguments; textual, intent, precedent, tradition and policy. The crux of the BIA's decision is based on precedent and tradition. The BIA relied heavily on Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) instead of following circuit court precedent. In doing so, the BIA refused to use the logical and longstanding argument of the Second Circuit Court of Appeal in Nason v. INS, 394 F.2d 223 (2d Cir. 1968). In doing so, the BIA has established a precedent that is very narrow and will be very difficult to overturn.
The BIA’s decision does indicate that the BIA is unable to determine Congressional intent on the entire phrase "single scheme of misconduct," but the decision does not delve into Congressional intent of the word "scheme." Nor does the BIA analyze the textual argument that "scheme" means "plan" and not simply a compilation of actions. The BIA failed to address the definition of the word "scheme." Black's Law Dictionary defines "scheme" as "a systemic plan; a connected or orderly arrangement, esp. of related concepts <legislative scheme>. 2. An artful plot or plan, usu. to deceive others < a scheme to defraud creditors>." There are multiple definitions for this word including "plan," "program of action to be followed," "any system of correlated things or parts."
This decision is flat wrong and fails miserably to take into account the plain clear meaning of the word "scheme."
The decision will be difficult to overturn. The only avenue to overturn this case is to appeal a current action to the BIA, allow the BIA to deny that appeal based on Matter of Islam and then take it to the Circuit court level for a petition for review. In understanding this progression, it must be also understood that the underlying charge of removability (INA 237(a)(2)(A)(ii)) subjects the respondent to mandatory detention pursuant to INA 236(c); thus no bond. It will be very hard to find a client who is willing to stay in detention, make these arguments at the immigration judge level (thus preserving them for appeal) and fight this case through the BIA and then through the Circuit level while incarcerated. And if successful, that will only be one Circuit with ten others remaining or if super lucky the U.S. Supreme Court would take up a case in a few years to resolve any splits.
This is a primary reason that we must have comprehensive immigration reform. We cannot wait for a tough, resilient foreign national to happen across our desks to change the law. There must be district court review of this type of action and not simply relying on the BIA to interpret their judges, the statutes and regulations. That's like allowing a police captain to review and interpret his own officer's determinations. It simply is not transparent nor is it an independent review.
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