In 1992, the State of Georgia convicted Akintunde Taofik Animashaun of two counts of criminal forgery.(1) Both of Animashaun's crimes resulted from actions he took as part of a plan to steal some furniture. First, Animashaun completed an instant credit application at a furniture store using a false identity. Two days later, he arrived at the store's warehouse to pick up the furniture and presented a receipt with the forged signature. These actions supported convictions for two separate crimes: for forgery on the credit application, and for forgery on the delivery receipt.(2)
Because Animashaun was a native and citizen of Nigeria who had entered the United States in 1981 as a student, his two crimes enabled the Immigration and Naturalization Service (INS) to institute deportation proceedings against him on its authority to deport aliens who commit multiple crimes.(3) Although Animashaun had become a permanent resident after marrying an American citizen, he remained an alien subject to the immigration laws. The legal authority for Animashaun's deportation derived from section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, which authorizes the INS to deport legal resident aliens who are convicted of "two or more crimes involving moral turpitude."(4)
The deportation provision provides an exception, however, for those aliens who commit multiple crimes "arising out of a single scheme of criminal misconduct."(5) Relying on a recent Ninth Circuit opinion(6) that interprets this exception to cover multiple crimes that an alien plans and executes together as part of a single plan, Animashaun argued that his convictions fell within the exception because both of his crimes arose from his single plan to steal furniture. The INS disagreed, contending that the exception applies only when an alien's multiple crimes arise out of a single act.
At a deportation hearing,(7) an immigration judge agreed with the INS's single-act interpretation and held that Animashaun's crimes did not fall within the exception.(8) Animashaun appealed to the Board of Immigration Appeals (BIA)(9) which affirmed the immigration judge's decision. The BIA adopted the INS's view that crimes arise out of a single scheme only when they are the consequence of a single act:
When an alien performs an act that in and of itself constitutes a complete, individual, and distinct crime, he is deportable when he again 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.(10)
The BIA reasoned that Animashaun's crimes did not fall within the single-scheme exception because they "were two complete, individual, and distinct acts"(11) - namely, the two different instances of presenting a false name.
On appeal to the Fifth Circuit,(12) Animashaun again challenged the BIA's single-act interpretation of the single-scheme exception, but the Fifth Circuit concluded that it had no choice but to adopt the BIA's "single-act" test.(13) The court explained that because the meaning of the statute was ambiguous, the landmark Supreme Court case of Chevron, Inc. v. Natural Resources Defense Council, Inc.(14) required the court to defer to the BIA's view. In Chevron, the Supreme Court announced that a federal court applying an ambiguous statute must defer to any reasonable interpretation adopted by the agency administering the statute. Courts have generally referred to this rule as having two steps: At step one, a court determines whether the statute clearly answers the interpretive question at issue. If the statute is unambiguous, the court will give effect to the statute's clear meaning. But if the statute is ambiguous, the court moves on to step two: determining whether the agency's interpretation of the statute is reasonable and permissible. Chevron requires courts to defer to reasonable agency interpretations of ambiguous statutes.(15) Applying the Chevron rule to the Animashaun case, the Fifth Circuit concluded that it had to defer to the BIA's "single-act" test, and it affirmed Animashaun's deportation order.(16)
Other circuits, however, have interpreted the single-scheme exception differently and refused to defer to the BIA's interpretation. Instead of focusing on whether the multiple crimes arise from a single act, these courts focus on the alien's state of mind. In applying their interpretations of the exception, the Second, Third, and Ninth Circuits ask whether the alien's crimes were planned together and executed as part of a single plan.(17) The First Circuit asks a slightly different question - whether the alien had sufficient time to reflect between the commission of the two crimes to change his mind and halt his course of criminal misconduct.(18) None of these courts that reject the BIA's interpretation, however, have analyzed the issue under Chevron.
This Note applies the two-step Chevron analysis to the single-scheme exception and argues that courts should reject the BIA's single-act test. In applying Chevron, this Note uses the narrow controversy over the proper interpretation of the single-scheme exception as a window on the larger ambiguity that plagues the Supreme Court's Chevron jurisprudence. This Note suggests an answer to a broader issue that has remained unclear under the Supreme Court's precedents: how courts should review agency interpretations at Chevron's second step. Part I discusses the text and legislative history of the single-scheme exception and surveys how courts have interpreted the exception, explaining the three competing approaches: the single-act test, the single-plan test, and the time-to-reflect test.
To determine how courts should apply Chevron to the BIA's choice among these tests, Part II focuses on what courts examine at each of Chevron's two steps. This Part first explains the numerous criteria the Supreme Court has employed under Chevron's first step in deciding whether a statute clearly answers an interpretive controversy. Then it addresses the broader question on which the Supreme Court has provided little explicit guidance: what courts should do at Chevron's step two. Part II argues that although courts have often engaged in cursory review of agency interpretations at Chevron's second step, the rationale of Chevron and a careful review of the Supreme Court's case law on deference to agency interpretations of statutes support a more rigorous standard of review. This Part concludes by providing an appropriate structure for judicial review at Chevron's step two.
Part III applies this understanding of Chevron's two steps to conclude that courts should not defer to the BIA's single-act test. This Part first argues that the ordinary meaning of "single scheme" embraces the single-plan test. But even if the meaning of the exception were ambiguous, this Part concludes that courts should reject the BIA's single-act test at Chevron's step two - as an unreasonable and impermissible reading of the statute.
Approaches To Interpreting the Single-Scheme
This Part describes the background to the controversy over interpreting the single-scheme exception. Section I.A examines how the text and legislative history of the exception leave the meaning of "single scheme" unclear. Section I.B describes the approaches taken by the BIA and the different courts in defining the exception.
The Text and Legislative History of the Exception
Section 241(a)(2)(A)(ii) of the Immigration and Nationality Act permits the INS to deport an alien who commits two or more crimes of moral turpitude, but it creates an exception for aliens whose multiple crimes arise out of a single scheme of criminal misconduct.(19) The section provides:
Any alien who at any time after entry 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.(20)
Congress gave no explicit guidance regarding how this exception should be understood. The Act's "definitions" section, while thorough, does not define single scheme of criminal misconduct,(21) nor does the legislative history shed any light on the intent of Congress in drafting this provision.(22) The House Report advises merely that "[t]he bill contains detailed and comprehensive provisions relating to the apprehension and deportation of aliens who are within the deportable classes."(23) This Report discusses several of the definitions contained in the Act's definitions section but does not advise how to construe undefined terms.(24)
Three Different Interpretations
The different immigration, district, and circuit courts that have considered Section 241(a)(2)(A)(ii) have interpreted the single-scheme exception in different ways. Although the courts' opinions are often imprecise and unclear, these interpretations can be grouped into three competing approaches: the "single-act" test, the "single-plan" test, and the "time-to-reflect" test. The single-act test asks whether the nature of the crimes essentially makes them one act. The single-plan test looks to whether the alien planned the entire program of criminal misconduct at a single time before the crimes. The time-to-reflect test focuses on whether the alien had sufficient time between the commission of the crimes to reflect upon them and change her mind.
The Nature of the Crimes: The Single-Act Test
Although the scope of the BIA's definition of section 241's single-scheme exception is not entirely clear,(25) its single-act test appears to focus on the nature of the alien's crimes to determine whether they are sufficiently related that they essentially constitute one act. As evidenced by the Animashaun case, at its most restrictive this test requires that all the crimes be traceable to a single physical act. The BIA explained this test in a recent decision, In re...