BAEZA-GALINDO

Cite as 

 (BIA 2025)                                   Interim Decision #4085




     Matter of Carlos Manuel BAEZA-GALINDO, Respondent
                             Decided January 31, 2025
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) Proximity in time is necessary but not sufficient to conclude that two crimes arise from
a single scheme of criminal misconduct under section 237(a)(2)(A)(ii) of the Immigration
and Nationality Act, 

(a)(2)(A)(ii) (2018). Matter of Adetiba, 

 (BIA 1992), clarified.
(2) 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.
FOR THE RESPONDENTS: Stephen W. Spurgin, Esquire, El Paso, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY:                            Jennifer A. Cordova,
Assistant Chief Counsel

BEFORE: Board Panel: GOODWIN, PETTY, and CLARK, Appellate Immigration
Judges.

PETTY, Appellate Immigration Judge:


    While driving under the influence of alcohol, the respondent struck a
group of pedestrians with his truck, killing one of them and injuring the other
three. He then drove away. The respondent was convicted of aggravated
assault with a deadly weapon and of failing to stop and render aid. The
Immigration Judge terminated proceedings, concluding that while the
respondent had been convicted of two crimes involving moral turpitude, they
arose out of a single scheme of criminal misconduct. We reverse.

                                I. BACKGROUND
    The underlying facts are not in dispute. The respondent is a native and
citizen of Mexico who was admitted to the United States as a lawful
permanent resident in 1989. On July 23, 2008, while driving his pickup truck
while intoxicated, he struck and killed a 22-year-old woman and injured her
26-year-old sister-in-law, her 8-month-old son, and her sister-in-law’s
9-month-old daughter as they were walking home from a park in Midland,
Texas. The victim’s son had to be airlifted to Lubbock to receive emergency
medical treatment for a lacerated liver. The sister-in-law and her daughter
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were taken to a local hospital and released after being treated for minor
injuries. After striking the four victims, the respondent drove home, where
he told his wife that it felt like something hit his truck. Pieces of a stroller
were later found embedded in the truck’s grill, and blood stains and clothing
fabric were discovered in the truck’s wheel wells. One witness believed the
truck was traveling at a high rate of speed and then sped up further after the
collision.

    On December 12, 2008, the respondent was convicted of aggravated
assault with a deadly weapon in violation of section 22.02(a)(2) of the Texas
Penal Code, and of failure to stop and render aid in violation section 550.023
of the Texas Transportation Code. DHS charged the respondent as
removable under section 237(a)(2)(A)(ii) of the Immigration and Nationality
Act (“INA”), 

(a)(2)(A)(ii) (2018), for having been, at any
time after admission, convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct. The parties do not
dispute that both the respondent’s convictions constitute crimes involving
moral turpitude. The respondent moved for termination, contending that the
two convictions arose out of a single scheme of criminal misconduct.

    The Immigration Judge concluded that the respondent’s convictions did
arise from a single scheme of criminal misconduct and therefore could not
support the sole charge of removability. Specifically, the Immigration Judge
observed that there was no significant period of intervening time between the
assault and the beginning of the fleeing or failure to stop. Additionally, the
Immigration Judge explained that “[i]t would not have been a crime to fail to
stop unless there had been the immediately prior and connected assault.”
However, the Immigration Judge also acknowledged that the respondent’s
failure to stop “was directly attributable to trying to not be caught for the
assault.”

   The only issue before us is whether the respondent’s convictions arose
from “a single scheme of criminal misconduct.” 1 INA § 237(a)(A)(ii),

(a)(2)(A)(ii). We review this question of law de novo. See

(d)(3)(ii) (2025); see also Matter of Islam, 

 (BIA 2011).


1
   The Board heard oral argument on this issue on October 8, 2024. Appellate Immigration
Judge Keith Hunsucker was originally a member of the panel that heard oral argument in
this case. He has been replaced on the panel by Appellate Immigration Judge Deborah K.
Goodwin, who has familiarized herself with the record of proceedings, including a
transcript of the oral argument.
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                                  II. DISCUSSION
    Section 237(a)(2)(A)(ii) of the INA, 

(a)(2)(A)(ii),
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.” There is no
meaningful legislative history to guide our interpretation of this phrase. See
Matter of Islam, 

 (citing Nason v. INS, 

(2d Cir. 1968)); Matter of Adetiba, 

 (BIA 1992). But
for over 70 years, we have adhered to our initial construction of “single
scheme,” including the importance of relative time. 2
      To us, the natural and reasonable meaning of the statutory phrase is that when an
      alien has performed an act which, in and of itself, constitutes a complete, individual
      and distinct crime then he becomes deportable when he again commits such an act,
      provided he is convicted of both. The fact that one may follow the other closely,
      even immediately, in point of time is of no moment.

Matter of D-, 

, 729 (BIA 1954) (emphasis added); accord
Akindemowo v. U.S. INS, 

 (4th Cir. 1995) (noting the Board
has “unfailingly” followed Matter of D-); see also Okoro v. INS, 

 (5th Cir. 1997) (“Neither their proximity in time nor their similarity
in purpose prevents Okoro’s acts from constituting two distinct crimes.”).

    In Matter of Adetiba, we again addressed the relative time of two criminal
acts, explaining that “to be a ‘single scheme,’ the scheme must take place at
one time, meaning there must be no substantial interruption that would allow
the participant to disassociate himself from his enterprise and reflect on
what he has done.” 20 I&N Dec. at 509–10. But Matter of Adetiba held only
that the presence of a substantial interruption conclusively shows that two
crimes are not part of a single scheme. The converse is not true; that is, the
absence of a substantial interruption does not conclusively show that two
crimes are part of a single scheme. Rather, Matter of D- and its progeny hold
that the absence of intervening time, while relevant, is not sufficient to
establish that two crimes are part of a single scheme. See Matter of Islam,

 (collecting cases). But see Szonyi v. Whitaker, 

 (9th Cir. 2019) (Fisher, J., dissenting) (suggesting that Board


2
   The statute uses the word “scheme,” which we have long equated with “act,” see, e.g.,
Matter of B-, 

 (BIA 1958), in large measure to avoid the perverse
result that planning multiple acts of criminality in advance would insulate the criminal from
removability. See Matter of Z-, 

, 171 (BIA 1954).
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precedent holds that the lack of a substantial interruption is independently
dispositive).

    To summarize, where there is a substantial interruption between two
criminal acts, those acts are necessarily separate schemes. See Matter of
Adetiba, 20 I&N Dec. at 509–10. However, two crimes close in time may
be part of a single scheme of criminal misconduct, but they may also be
separate schemes of misconduct, or even entirely unrelated. In other words,
proximity in time is necessary but not sufficient to conclude that two crimes
arise from a single scheme of criminal misconduct under section
237(a)(2)(A)(ii) of the INA, 

(a)(2)(A)(ii). As such,
Immigration Judges should not rely only on the absence of intervening time
in concluding two crimes of moral turpitude arise out of a single scheme of
criminal misconduct.

   The Immigration Judge also reasoned that the respondent’s convictions
arose out of a single scheme of criminal misconduct because it would not
have been a crime to fail to stop unless there had been the immediately prior
and connected assault. Our case law requires more.

    The original version of what is now section 237(a)(2)(A)(ii) of the INA,

(a)(2)(A)(ii), provided that a respondent who was “sentenced
more than once” to a term of imprisonment of 1 year or more for a crime
involving moral turpitude were deportable. See Immigration Act of February
5, 1917, ch. 29, § 19, 

, 889. In 1948, the Supreme Court of the
United States interpreted this provision to apply only if the convictions were
entered after separate trials. Fong Haw Tan v. Phelan, 

, 9–10
(1948). In the Immigration and Nationality Act of 1952, 

(a)(4), 

, 204 (codified at 

(a)(4) (1952)),
Congress created a new provision that applied “regardless of whether the
convictions were in a single trial,” but added the current limitation that the
relevant convictions must “not aris[e] out of a single scheme of criminal
misconduct.” See also Matter of B-, 

, 238–39 (BIA 1958).
In doing so, “Congress intended to continue the protection which existed
against the deportation of an alien who had been twice convicted for what
was essentially one act.” 

 (emphasis added).

   We have recognized that “essentially one act” occurs where the
respondent has committed one physical act that “the law looks upon . . . from
two viewpoints.” 

. This includes instances in which “one crime



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constitutes a lesser offense of another.” 3 Matter of Adetiba, 

. It also includes instances in which the defendant performs a single
act that concurrently harms multiple victims in essentially the same way. See
Matter of B-, 

 (recognizing a single scheme “[w]here there
are a series of similar acts which occurred at ‘one time,’” for example “A, B,
and C are robbed by the alien at the same time”); see also Abdelqadar v.
Gonzales, 

 (7th Cir. 2005) (“Robbing six people at one
poker game therefore would be a single scheme even if it led to multiple
convictions . . . .”). Neither of these scenarios are at issue in this case.

    We have also treated as arising out of a single scheme of criminal
misconduct multiple turpitudinous acts that “occur within a comparatively
short time of each other, involve the same parties, and the first act or acts are
committed for the purpose of making possible the specific criminal objective
accomplished by the last of the criminal acts.” Matter of B-, 

; see also Matter of Z-, 

, 171 (BIA 1954) (“[T]wo
crimes do arise out of a ‘single scheme’ when both are part and parcel of a
course of criminal conduct designed to accomplish a specific and limited
criminal objective.”). A typical example is an assault on a guard while
committing larceny. Id.; see also Matter of Islam, 

(reasoning that committing assault in connection with breaking in to a store
with the intent to commit larceny would be part of a single scheme); Matter
of Adetiba, 

 (same). Although these criminal episodes 4
involve multiple turpitudinous acts, it would be contrary to Congress’ design
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. See Matter of B-, 8 I&N Dec. at 238–39. We have
explained that in such a case, there is “morally . . . only a single wrong.”
Matter of D-, 5 I&N Dec. at 730.

    Attempting to avoid capture or responsibility for a completed crime does
not facilitate its accomplishment. See Nguyen v. INS, 

(10th Cir. 1993) (“Petitioner did not need to shoot at the officer in order
successfully to complete the act of stealing the car. The car had, many hours
earlier, been successfully removed from its true owner.”). Trying not to be
caught for a completed crime is a separate moral wrong with a new criminal
3
   This is now uncommon, as criminal defendants can no longer constitutionally be
sentenced for a crime and its lesser included offenses. See Brown v. Ohio, 

 (1977).
4
   We have sometimes referred to this type of situation—where one crime is committed in
the course of, causing, or facilitating another—as a single criminal “episode.” See, e.g.,
Matter of B-, 

.
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objective, not a subordinate act in service of the same criminal objective. See
Matter of D-, 5 I&N Dec. at 730.

    Determining whether multiple offenses arise out of a single scheme may
require specific fact-finding on this point. Here, however, the Immigration
Judge has already found that the respondent’s failure to stop “was directly
attributable to trying to not be caught for the assault,” not to completing it.
We also recognize, as the Immigration Judge did, that it is logically necessary
for the assault to have occurred first. However, the aggravated assault with
a deadly weapon was not intended to facilitate the accomplishment of later
failing to stop and render aid. See Matter of Z-, 6 I&N Dec. at 171. Nothing
in the record suggests that the respondent intentionally drove his truck into
two young mothers and their infants for the purpose of thereafter leaving
them dead and injured in the road.

    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. The respondent is therefore removable under section
237(a)(2)(A)(ii) of the INA, 

(a)(2)(A)(ii), for having been, at
any time after admission, convicted of two crimes involving moral turpitude
not arising out of a single scheme of criminal misconduct. We will sustain
the appeal and reverse the Immigration Judge’s decision terminating the
respondent’s removal proceedings.

   ORDER: DHS’ appeal is sustained, and the Immigration Judge’s
decision is reversed.

   FURTHER ORDER: The record is remanded for further proceedings
consistent with this opinion and for the entry of a new decision.




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