On Friday, the BIA published a decision in Matter of Islam, 25 I&N Dec. 637 (BIA 2011), a decision which does not break much new ground but is worth discussion for its application of the Chevron deference standard.

Summary of Matter of Islam

In Matter of Adetiba, the Board had held that an alien who had used four different fraudulent credit cards over a period of two years had committed more than one Crime Involving Moral Turpitude (“CIMT”), and that the crimes did not arise from a “single scheme.”  However, the Board recognized that the 2nd, 3rd, and 9th circuits applied a broader standard for “single scheme” crimes, and that its decision would only be applied in the remainder of circuits.  In Matter of Islam, the Board revisits that issue and holds that the rule from Matter of Adetiba would now be applied in all circuits, invoking its power under the Chevron doctrine to interpret ambiguous portions of the Immigration statute.

Problems With This Decision

There are two primary problems with this decision.

First, the phrase “single scheme of criminal misconduct” is not a “quintessentially ambiguous term.” In fact, it isn’t ambiguous at all – the words “single” and “scheme” have plain meanings that are easy for both the courts and the agency to discern.

In invoking Chevron, the Board did not attempt to discuss the legislative history or the statute’s context as the Supreme Court did in Chevron when determining that a phrase was ambiguous.  As Judge Posner has said, “deference is earned; it is not a birthright.” Kadia v. Gonzales, 501 F. 3d 817, 821 (7th Cir. 2007).  And if the phrase is not ambiguous, the BIA cannot invoke Chevron to apply its own standard when the Circuit Courts have spoken on the issue. See Matter of Anselmo, 20. I&N Dec. 25, 31-32 (BIA 1989).

Second, the BIA forgot to apply the second prong of Chevron.  It is not enough for the statute to be ambiguous – if it is ambiguous, then the agency is entitled to provide an interpretation as long as it uses a “permissible construction of the statute.”

While it mentioned several times in Matter of Islam that it was entitled to apply a reasonable interpretation, it did not explain why its interpretation is reasonable or permissible.  In Adetiba, the alien had used 4 different credit cards in multiple ways over a span of 2 years.  Under any reasonable standard, the varied and extended activities would not be described as a “single scheme.”  But, in Matter of Islam, the person used credit cards during a brief period on a single day – he drove to several stores using the cards until he was caught.  That sounds a whole lot more like a “single scheme.”

The test proposed by the Board is far from reasonable – it is unworkable.  The Board says two crimes arise from a single scheme if after committing the first crime, the alien does not have time “to reflect on his first offense or disassociate himself from the criminal enterprise before completing his additional crimes.” The amount of time it takes one to “reflect” has nothing at all to do with whether the two crimes are a “single scheme” or multiple schemes, and this standard does not arise from anything found in the statute’s text.  Further, because one can “reflect” in a matter of seconds or less, no two crimes will ever arise from a “single scheme.”  The Board has not clarified an “ambiguous” phrase but has rather rendered confusing and unworkable a statutory phrase that isn’t all that ambiguous in the first place.

Finally, the Board’s decision conflicts with a long-standing rule of administrative law: “doubts in the construction of a statute [are] to be resolved in favor of the alien.” Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948).  Of course, the Chevron doctrine tends to default the other way, as the agency gets the first bite at resolving “doubts” about the immigration statute and rarely does so with the interests of the affected immigrant in mind.