FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ISTVAN SZONYI, No. 15-73514 Petitioner, Agency No. v. A010-977-327

WILLIAM P. BARR, ORDER AND Acting Attorney General, AMENDED Respondent. OPINION

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 10, 2018 Portland, Oregon

Filed February 13, 2019 Amended November 13, 2019

Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

Order; Dissent to Order by Judge Collins; Opinion by Judge Clifton; Dissent by Judge Fisher

2 SZONYI V. WHITAKER

SUMMARY*

Immigration

The panel filed: 1) an order amending its prior opinion, denying panel rehearing, and denying, on behalf of the court, rehearing en banc; and 2) an amended opinion denying Istvan Szonyi’s petition for review of a decision of the Board of Immigration Appeals.

In the amended opinion, the panel upheld the BIA’s interpretation of the phrase, “single scheme of criminal misconduct,” which operates as an exception to the ground of removal, under 8 U.S.C. § 1227(a)(2)(A)(ii), for a person who has been convicted of “two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.”

In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed the following interpretation of the phrase “single scheme of criminal misconduct”: “when an alien has performed an act, which, 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.” The BIA said that it would apply this interpretation in all circuits except those that had adopted more expansive interpretations. That exception applied to this circuit, whose previous interpretation of the phrase encompassed distinct crimes that

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

SZONYI V. WHITAKER 3

were part of the same overall plan. However, in Matter of Islam, 25 I. & N. Dec. 637 (BIA 2011), the BIA announced that it would apply the interpretation from Matter of Adetiba in all circuits.

Szonyi, a lawful permanent resident, forced three women to commit sexual acts under threat of violence over a five- to six-hour period. For those acts, Szonyi pled guilty to two counts of oral copulation in violation of California Penal Code § 288a(c) and two counts of sexual penetration with a foreign object in violation of California Penal Code § 289. Based on these offenses, the BIA ultimately concluded that Szonyi was removable because his crimes did not arise out of a single scheme under BIA precedent.

The panel rejected Szonyi’s argument that this court’s precedent forecloses the BIA’s interpretation of the phrase “single scheme of criminal misconduct,” upholding the BIA’s interpretation under principles of deference under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). As a preliminary matter, the panel concluded that, because the BIA’s position appeared to be set based on its opinion in Matter of Islam at the time of Szonyi’s proceedings, Szonyi did not have to exhaust his challenge to the BIA’s interpretation.

Observing that, under Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the court does not defer, under Chevron, where a prior court decision holds that its construction follows from the unambiguous terms of the statute, the panel concluded that no circuit precedent held that the text of the statute unambiguously foreclosed the BIA’s interpretation here. The panel also rejected Szonyi’s contentions that the BIA’s interpretation was impermissible

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based on congressional intent and constitutional avoidance. With respect to the latter issue, the panel explained that the Supreme Court’s recent vagueness jurisprudence is distinguishable from the present case.

The panel also rejected Szonyi’s argument that, even if the BIA’s construction of the statute was permissible, the agency could not retroactively apply that standard to this case. Analyzing the relevant factors set out by Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel concluded that, on balance, the retroactive application of the BIA’s interpretation was not improper. The panel further rejected Szonyi’s argument that, even under BIA precedent he was not removable, concluding that the BIA’s analysis was consistent with its precedent.

Finally, the panel upheld the agency’s denial of discretionary relief, rejecting Szonyi’s contention that the BIA failed to consider all favorable and unfavorable factors bearing on his eligibility.

Dissenting, Judge Fisher disagreed with the majority’s conclusion that the BIA reasonably applied its precedent to this case. Judge Fisher wrote that BIA precedent squarely holds that two or more crimes committed during a single criminal episode arise from a single scheme of criminal conduct unless they are marked by a “substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done” between crimes. Judge Fisher would grant the petition for review and remand to the BIA for an adequate explanation because it cannot be discerned from the record whether or how the BIA applied this precedent in this case, where the petitioner’s crimes were part of a single and continuous criminal episode,

SZONYI V. WHITAKER 5 and there was nothing in the record to suggest there was a “substantial interruption” between the crimes.

Dissenting from denial of rehearing en banc, Judge Collins, joined by Judge Bea, wrote that this case well illustrates why the Chevron doctrine has become the subject of so much recent criticism. Noting the separation-of-powers concerns that arise where, as here, the Chevron doctrine has the effect of placing the ability to construe authoritatively the limits on an agency’s power in that agency’s own self- interested hands, Judge Collins wrote that it is critical that courts enforce Chevron’s condition that an agency’s construction of an ambiguous provision merits deference only if it is a reasonable reading of the actual words of the statute. Judge Collins wrote that the panel failed to do that here; instead, it upheld an agency construction that this court has consistently rejected as being based on an impermissible rewriting of the statutory text.

With respect to step one of Chevron, Judge Collins agreed with the panel’s conclusion that the relevant statutory language is ambiguous, and that nothing in the court’s precedent required a contrary conclusion. However, Judge Collins wrote that the BIA’s construction of the phrase is unreasonable under Chevron step two, and should be rejected. Accordingly, Judge Collins concluded that the proper course would be to remand the matter to the BIA to adopt a new construction that interprets, rather than rewrites, the statute.

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COUNSEL

David Timothy Raimer (argued), Jones Day, Washington, D.C.; Meir Feder, Jones Day, New York, New York; for Petitioner.

Leslie McKay (argued) and Bryan S. Beier, Senior Litigation Counsel; Terri J. Scadron and John W. Blakeley, Assistant Directors; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Jennifer Lee Koh and Andrew Michael Knapp, Western State College of Law, Irvine, California, for Amicus Curiae American Immigration Lawyers Association.

ORDER

The opinion filed on February 13, 2019, is hereby amended as follows:

1. On page 15 of the slip opinion, in the first full paragraph, replace:

As of then, however, the BIA itself had consistently applied its own narrower approach. It was not until 1992, a decade after Szonyi pled guilty, that the BIA announced that it would only apply its interpretation outside circuits, like the Ninth Circuit, that had adopted a more expansive interpretation. Id. at 511. Thus, at the time Szonyi pled

SZONYI V. WHITAKER 7 guilty, it could reasonably have been anticipated that the BIA would apply its own interpretation. with the following:

As of then, however, the BIA had not clearly indicated whether it would follow these broader interpretations or its own precedent. It was not until 1992, a decade after Szonyi pled guilty, that the BIA announced that it would apply its interpretation outside circuits, like the Ninth Circuit, that had adopted a more expansive interpretation. Id. at 511. Thus, at the time Szonyi pled guilty, it should not have come as a “complete surprise” that the BIA would apply an interpretation that held him removable. See Lemus, 842 F.3d at 649.

With these amendments, Judge Clifton and Judge Callahan have voted to deny the petition for panel rehearing. Judge Fisher has voted to grant it. Judge Callahan has voted to deny the petition for rehearing en banc, and Judge Clifton has so recommended. Judge Fisher has recommended granting it.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.

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The petition for rehearing and the petition for rehearing en banc (Docket Entry No. 67) are otherwise DENIED, no further petitions will be accepted.

COLLINS, Circuit Judge, with whom BEA, Circuit Judge, joins, dissenting from denial of rehearing en banc: This case well illustrates why Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), has become the subject of so much recent criticism. Under Chevron, we are required to give deference to an agency’s reasonable construction of ambiguous language in a statute that the agency is charged with administering. Id. at 842–43. Where, as here, the ambiguous provision at issue imposes an express legislative constraint on the agency’s authority, the Chevron doctrine has the effect of placing the ability to construe authoritatively the limits on an agency’s power in that agency’s own self-interested hands. It is troubling enough that Chevron “concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design,” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring), but “when deference is applied to . . . an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still,” Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring) (emphasis added). Given these separation-of-powers concerns, it is critical that courts rigorously enforce Chevron’s condition that an agency’s construction of an ambiguous provision merits deference only if it is a reasonable reading of the actual words of the statute. The panel failed to do that here. Instead, it upheld an agency SZONYI V. WHITAKER 9 construction that this court has consistently rejected as being based on an impermissible rewriting of the statutory text, rather than an interpretation of it. In doing so, the panel improperly disregarded controlling precedent and applied an excess of deference that “suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.” Id. We should have taken this case en banc. In the provision at issue here, Congress expressly limited the Government’s power to deport aliens based on their commission of “two or more crimes involving moral turpitude” by specifying that the Government may not count to two simply by carving up a “single scheme of criminal misconduct” into multiple separate charges. See 8 U.S.C. § 1227(a)(2)(A)(ii). Because the Immigration and Nationality Act (“INA”) is administered by the Attorney General and the Board of Immigration Appeals (“BIA”), the Supreme Court has held that “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.” Negusie v. Holder, 555 U.S. 511, 517 (2009) (citations and internal quotation marks omitted). Unsurprisingly, when asked to construe this statutory limit on the agency’s own power, the BIA adopted an exceptionally narrow view of what constitutes a “single scheme of criminal misconduct,” thereby allowing it more easily to divide up a single criminal episode into multiple crimes and expanding its power to order deportation. Under the BIA’s construction, the “single scheme” exception applies only when two crimes follow so closely together that the offender essentially had no opportunity to cease his activities and reflect on what he had done. For sixty years, however, this court has consistently refused to follow that construction because we correctly recognized that it rewrites the statute “as if it read ‘single 10 SZONYI V. WHITAKER criminal act’” rather than “‘single scheme of criminal misconduct.’” Wood v. Hoy, 266 F.2d 825, 830 (9th Cir. 1959) (emphasis added). Having rejected the BIA’s position as legally impermissible, we proceeded to apply our own construction, under which two or more crimes will constitute a “single scheme” if they “were planned at the same time and executed in accordance with that plan.” Gonzalez-Sandoval v. INS, 910 F.2d 614, 616 (9th Cir. 1990) (emphasis added). But after the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute,” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005), the BIA decided that it was time for us to fall in line, and it started refusing to follow Wood even in cases arising in this circuit. Unfortunately, the panel in this case has now surrendered to the BIA’s flawed construction, and in doing so, it has squarely contravened Wood’s holding that the BIA’s interpretation rests on a legally impermissible rewriting of the text. Although I think that the panel thus erred in failing to follow Wood’s rejection of the BIA’s interpretation, I cannot fault the panel for concluding that the BIA is not required to adopt the alternative construction of “single scheme” that this court enunciated in Wood and its progeny. Wood itself correctly recognized that the key phrase at issue here—“arising out of a single scheme of criminal misconduct”—is ambiguous, and under the Supreme Court’s binding decision in Brand X, that means “the agency remains the authoritative interpreter (within the limits of reason)” of this provision. 545 U.S. at 983. Accordingly, Brand X and SZONYI V. WHITAKER 11 Chevron require us to allow the agency, on remand, to propose an alternative reading of the statutory text that is reasonable. And I especially cannot fault the panel on this score when I agree with the BIA that this court’s alternative construction is itself wrong. Under Wood’s reading of “single scheme,” we have wrongly ignored the objective connections that are inherent in the concept of a “scheme,” and we instead have given dispositive weight to whether multiple crimes were planned together. As the BIA has noted, this flawed subjective approach has the perverse consequence of favoring more culpable criminals who pre-plan a crime spree over those who commit the very same crimes without such forethought. A remand to the agency is particularly appropriate here, because this is not a case in which the petitioner would lose under any conceivable reading of “single scheme,” thereby rendering pointless any such remand. The multiple crimes that render Petitioner Istvan Szonyi eligible for deportation were horrific—on an October night in 1981, he held three young women at gunpoint in a room for six hours while subjecting them to disgusting sexual abuse. Because these multiple crimes against multiple victims all occurred during a single episode in a single room, it is possible to posit reasonable competing interpretations of the phrase “single scheme of criminal misconduct,” some of which would cover Szonyi’s conduct and some of which would not. But in resolving that question, the agency needs to do what it has failed to do for many years—namely, to articulate a reasonable construction that is faithful to the meaning of the phrase “single scheme,” rather than continue to apply a test that disregards that phrase and instead rewrites the provision as if it read “single act.” 12 SZONYI V. WHITAKER Because the panel’s decision allows the agency to continue to enforce an unreasonable reading of the statute that disregards our precedent and that eliminates a congressional constraint on the agency’s power, I respectfully dissent from our failure to rehear this case en banc. I The statutory construction issue presented in this case arises against the backdrop of a long history of judicial interpretation of the relevant provision and its predecessor. A For more than 100 years, the immigration laws of this country have provided for the deportation of specified persons who have committed “crimes involving moral turpitude.” For example, in section 19 of the Immigration Act of 1917, Congress provided that any alien who commits a single felony “crime involving moral turpitude . . . within five years after the entry of the alien to the United States” would generally be subject to deportation, 8 U.S.C. § 155 (1946 ed.) (emphasis added), and the INA still contains a comparable provision, see 8 U.S.C. § 1227(a)(2)(A)(i). The apparent significance of the five-year limitation is that, once an alien has been lawfully in the United States for sufficient time to develop substantial ties to this country, a single felony crime of moral turpitude should no longer be sufficient to render that person automatically eligible for deportation. But Congress has also consistently specified that no such indulgence will be granted to those who commit multiple crimes of moral turpitude after their admission to the United States. Thus, in the 1917 statute, Congress generally provided for the deportation of any alien “who is hereafter SZONYI V. WHITAKER 13 sentenced more than once to such a [felony] term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry.” 8 U.S.C. § 155 (1946 ed.) (emphasis added). As a result, where an alien has been in the country for more than five years and commits a crime of moral turpitude, the Government’s power to deport that alien will depend critically upon whether he or she has committed one such crime or two. In 1948, the Supreme Court in Fong Haw Tan v. Phelan, 333 U.S. 6 (1948), resolved a circuit split over the proper construction of this multiple-crimes provision of the 1917 statute. Rejecting this court’s view that any two convictions for separate crimes were sufficient to trigger the statute, even if the convictions were imposed at the same time and resulted in concurrent sentences, the Supreme Court instead held that an alien is “sentenced more than once” for a crime of moral turpitude when the “alien[,] having committed a crime involving moral turpitude and having been convicted and sentenced, once again commits a crime of that nature and is convicted and sentenced for it.” Id. at 9–10. The Court explained that this reading of the statutory language was also consistent with its purpose, because by reoffending after a previous conviction, such a “repeater” had shown himself to be “a criminal of the confirmed type,” with a “criminal heart and a criminal tendency.” Id. at 9 (citations omitted). As part of its overhaul of the immigration laws in 1952, Congress changed the language of this provision in a manner that unmistakably abrogated the rule recognized in Fong Haw Tan. Instead of reaching only the pure recidivist who reoffends after a prior conviction, the amended provision established a broader rule generally providing for the 14 SZONYI V. WHITAKER deportation of an alien who “is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” and Congress expressly applied this new rule “regardless of whether the convictions were in a single trial.” 8 U.S.C. § 1251(a)(4) (1952 ed.). The current version of this provision, which reflects only minor wording changes from the 1952 version, is now contained in section 237(a)(2)(A)(ii) of the INA, and it provides as follows: 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. 8 U.S.C. § 1227(a)(2)(A)(ii). As this text reflects, the broader any-two-crimes rule adopted in 1952 was subject to an important exception— namely, that an alien is deportable only if he or she is convicted of two crimes of moral turpitude “not arising out of a single scheme of criminal misconduct.” Id. (emphasis added). Thus, while the multiple convictions could now occur at a single trial, the proviso that they could not arise out of a single scheme of criminal misconduct meant that the amended statutory language retained, albeit in a narrower form, the prior statute’s comparable focus on repeat criminals who had demonstrated “lawless propensities.” Costello v. INS, 376 U.S. 120, 134 (1964) (White, J., dissenting). SZONYI V. WHITAKER 15 B In 1954, the BIA first articulated its very narrow construction of this new statutory limitation on the agency’s power to deport an alien convicted of multiple crimes of moral turpitude. See Matter of D—, 5 I. & N. Dec. 728 (BIA 1954). In Matter of D—, the alien argued that separate convictions for obtaining property by false pretenses, committed against different persons on different days, should nonetheless be deemed to constitute a “single scheme of criminal misconduct,” because the alien committed them “pursuant to a scheme or pattern to raise funds for a single purpose.” Id. at 729. Although the BIA might have rejected this overbroad reading of the “single scheme” exception on any number of grounds, it instead held that the exception did not apply because, in its view, any two separate criminal acts would be deemed not to arise from a “single scheme.” As the BIA explained: 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. Equally immaterial is the fact that they may be similar in character, or that each distinct and separate crime is a part of an overall plan of criminal misconduct. 16 SZONYI V. WHITAKER We differentiate the foregoing situation from that wherein two crimes flow from and are the natural consequence of a single act of criminal misconduct. That is, we distinguish it from the case where technically there are two separate and distinct crimes, but morally the transaction constitutes only a single wrong. For example, a counterfeiter may be indicted in one count for possessing a bill, and in another for passing it, though he cannot pass it without having possession; so also, a person might break and enter a store with intent to commit larceny and in connection therewith commit an assault with a deadly weapon. Id. at 729–30 (emphasis added); see also Matter of Z—, 6 I. & N. Dec. 167, 168–69 (BIA 1954) (same). Five years later, in Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), we rejected the BIA’s reading in Matter of D— as flatly contrary to the statutory language. As we explained, the BIA’s interpretation of the statute improperly rewrote “the statute as if it read ‘single criminal act’”: We must take the language of the statute as we find it. It says “not arising out of a single scheme of criminal misconduct”; it does not say “not arising out of a single criminal act.” If such latter reading had been the intent of Congress they could have so declared. Id. at 830. Indeed, we noted that the Government in Wood’s case had acted “as if the words ‘not arising out of a single SZONYI V. WHITAKER 17 scheme of criminal misconduct’ had not been added to the statute.” Id. at 831. After reviewing the record and concluding that the Government had failed to show that the crimes were not part of a single scheme, we remanded the case “so that proper findings on the proper view of the law may be made.” Id. at 832. We have subsequently construed Wood as having gone beyond the rejection of the BIA’s standard and instead affirmatively adopting its own alternative construction of the exception. As we have described it, Wood established that, where “two predicate crimes were planned at the same time and executed in accordance with that plan,” they “arise out of ‘a single scheme of criminal misconduct.’” Gonzalez- Sandoval v. INS, 910 F.2d 614, 616 (9th Cir. 1990) (emphasis added); see also Szonyi v. Whitaker, 915 F.3d 1228, 1233–34 (9th Cir. 2019) (panel decision in this case).1 The BIA, however, explicitly disagreed with the Wood/Gonzalez-Sandoval test for determining whether two crimes “aris[e] out of a single scheme of criminal misconduct,” and it therefore declined to follow that test in cases arising in circuits that lacked comparable precedent. As the BIA explained, the test’s “emphasis on whether the crimes are planned together and executed in accordance with that plan” was “clearly unjustified.” Matter of Adetiba, 20 I. & N. Dec. 506, 511 (BIA 1992). According to the BIA, this emphasis on subjective planning “would result in extreme absurdities, as it would render” the two-crime deportability To decide whether deference must be given to the BIA’s construction of the phrase “not arising out of a single scheme of criminal misconduct,” one must first determine what that construction is. The BIA’s interpretation of that phrase is actually somewhat hard to discern, because it is not stated in a single, definitive, self-contained operative test. Rather, the

SZONYI V. WHITAKER 27

BIA’s construction consists of a set of related propositions that it has repeated in many cases (including this one). Each of these propositions uses somewhat different phrasing, and their relation to one another is at first blush not entirely clear. A careful review of these propositions confirms that, under the BIA’s construction, the “single scheme” exception applies only when two crimes follow so closely together that the offender essentially had no opportunity to cease his activities and reflect on what he had done. That is the standard that the BIA applied in rejecting Szonyi’s invocation of the “single scheme” exception. a

According to the BIA’s first and most general proposition, the BIA construes the reference to “conduct not arising from a single scheme ‘to mean [that] when an alien has performed an act, which, 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.’” See Matter of Szonyi, slip op. at 3 (BIA Oct. 21, 2015) (quoting Matter of Adetiba, 20 I. & N. Dec. at 509). Taken literally and by itself, this construction would read the key phrase, “not arising out of a single scheme of criminal misconduct,” out of the statute: it says that any two distinct criminal acts render the alien deportable, and it recites no exception to that rule. Instead, it simply lists a set of considerations that will not constitute exceptions to this rule. Because this proposition says literally nothing about when the exception would apply, it provides no affirmative construction of the “single scheme” exception at all.

28 SZONYI V. WHITAKER b

The BIA’s decision also paired this general rule with the additional proposition that “two offenses are not part of a ‘single scheme of criminal misconduct’ when the acts are distinct and neither offense causes (or constitutes) the other.” See Matter of Szonyi, slip op. at 3 (citing Matter of Adetiba, 20 I. & N. Dec. at 509). The statement that two crimes are outside the “single scheme” exception only if, at a minimum, they are “distinct” acts adds literally nothing to the first proposition discussed above. And, in any event, it is tautological: if the two crimes are not even distinct acts, but are rather the same act, then they are part of a “single scheme” under any conceivable definition.

The BIA’s additional phrase—that the single scheme exception does not apply when “neither offense causes (or constitutes) the other”—does provide some affirmative content to that exception. By defining the conditions in which the exception will not apply, this proposition logically tells us what is necessary in the BIA’s view to avoid that rule of inapplicability: it must be shown that one of the offenses “causes (or constitutes) the other.” See Matter of Szonyi, slip op. at 3; see also Matter of Adetiba, 20 I. & N. Dec. at 509. Accordingly, this second proposition says that two distinct acts will be considered part of a “single scheme of criminal misconduct” only if one of the offenses “causes (or constitutes) the other.” c

The BIA also recited a third proposition, namely, that “the single scheme exception relates to acts performed in furtherance of a single criminal episode even though the acts

SZONYI V. WHITAKER 29

may constitute separate crimes in and of themselves, such as where one crime is a lesser included offense of another or two crimes flow from and are the natural consequence of a single act of criminal misconduct.” Matter of Szonyi, slip op. at 3 (quoting Matter of Adetiba, 20 I. & N. Dec. at 509) (internal quotation marks omitted). On its face, this seems to acknowledge a broader exception than the second proposition, because it suggests more generally that any separate criminal acts “performed in furtherance of a single criminal episode” will constitute a “single scheme of criminal misconduct.” But for several reasons, it is clear that the BIA has not adopted any such broad rule.

Notably, this broader articulation of the “single scheme” exception is followed by what seem to be two non-exhaustive examples (which are introduced by the non-limiting phrase “such as”). Those two examples, however, exactly mirror the more limited exception articulated in proposition two above. The first example is “where one crime is a lesser included offense of another,” which corresponds to the situation in which one offense “constitutes the other.” The second example is when “two crimes flow from and are the natural consequence of a single act of criminal misconduct” (emphasis added), and that seems to be another way of saying that one of the offenses “causes . . . the other.” The result is a certain tension between the BIA’s two articulations of the exception—one articulation seems to limit it to only two specific categories (i.e., lesser included offenses and crimes in which one directly leads to the other), and the other articulation seems to say that those two categories are merely illustrative of a broader exception (i.e., a broader exception under which any crimes that were “performed in furtherance of a single criminal episode” would be considered a “single scheme”).

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Szonyi sought to take advantage of that tension by arguing that his crimes were “performed in furtherance of a single criminal episode” even though those crimes were not lesser included offenses of one another and were not crimes in which one directly caused the others. Indeed, this case seems to fall precisely in the space between these two propositions, because Szonyi’s crimes were unquestionably part of a “single criminal episode” as that phrase would normally be understood. Thus, if the BIA’s third proposition were in fact broader than its second proposition, Szonyi should have won, and the fact that he did not confirms that the BIA treats this third proposition as adding nothing to the second. In my view, the panel therefore correctly rejected Szonyi’s reading of the BIA’s precedent and instead construed propositions two and three as effectively saying the same thing. Szonyi, 915 F.3d at 1237. d

This reading of the BIA’s second and third propositions is reinforced by a fourth proposition recited by the agency. The BIA also stated that a second crime does not flow from, and is not the natural consequence of, the first crime when each act “accomplished a specific criminal objective in itself” and the petitioner had “an opportunity to reflect upon one crime before committing another.” Matter of Szonyi, slip op. at 3. This was the critical basis on which the IJ and the BIA rejected petitioner’s argument that his crimes were part of a single scheme of criminal misconduct: according to the BIA, “[a]fter the abuse of any one victim, the respondent had the opportunity to cease his activities and reflect on what he had done.” Id. at 3. This reasoning and result confirm that the BIA does not recognize a broader exception under which any

SZONYI V. WHITAKER 31 two crimes that further a single “criminal episode” will be deemed to “aris[e] out of a single scheme.”

* * *

The bottom line is that, under the BIA’s view, two crimes are part of a “single scheme of criminal misconduct” only if one is a lesser included offense of the other or one crime causally leads to the other in the narrow sense that the BIA has described. Moreover, the lesser-included-offense rule is not actually an exception at all, because lesser included offenses are not properly considered to be two offenses in the first place. As such, they do not constitute “two or more crimes involving moral turpitude,” and the BIA’s inclusion of lesser included offenses in the exception to that two-crimes rule adds nothing. As a result, the only thing that falls within the exception, according to the BIA, are two crimes that follow so closely together that the offender essentially had no opportunity to cease his activities and reflect on what he had done.

Thus understood, the BIA’s very narrow construction of the statutory exception may make eminent policy sense, but it is an unreasonable reading of the actual words in the statutory phrase “arising out of a single scheme of criminal misconduct.” It therefore fails step two of the Chevron analysis.

Under any ordinary usage of the word “scheme,” that word would not be limited, as the BIA would have it, to a set of immediately successive actions that are not separated by any opportunity for deliberation. According to Webster’s

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Second (which is presumably a reasonable reference point for this 1952 enactment), a “scheme” denotes a “plan or program of something to be done”; a “project,” especially a “crafty, unethical project”; or a “systematic plan” comprising a “combination of thoughts, theories, or the like, connected and adjusted by design.” WEBSTER’S 2D NEW INT’L DICTIONARY 2234 (1934); see also Scheme, BLACK’S LAW DICTIONARY (11th ed. 2019) (“scheme” is a “systemic plan; a connected or orderly arrangement” or an “artful plot or plan”). This concept of a single plan of interconnected elements is not captured by the BIA’s construction; indeed, that construction does not seem to be grounded in any serious analysis of the meaning of the word “scheme.”

The gap between what the statute says and what the BIA construes it to mean is perhaps best illustrated by the following example: under the BIA’s reading, two separate emails that are sent days apart in furtherance of a single scheme to defraud (each of which is a separate violation of the wire fraud statute) would apparently not “aris[e] out of a single scheme of criminal misconduct.” Under the BIA’s analysis, each email is a distinct crime (“because the commission of one can occur without the commission of the other,” Matter of Szonyi, slip op. at 3); neither is a lesser included offense of the other; and (given the opportunity for reflection between the two emails) the second email cannot be said to have flowed from or to have been caused by the first. This is an unreasonably narrow and atextual reading of the statutory exception.

We recognized the fundamental problems in the BIA’s interpretation more than sixty years ago in our decision in Wood. On this score, it is critical again to distinguish the two separate holdings of Wood, in which (1) we rejected the

SZONYI V. WHITAKER 33

BIA’s reading as impermissibly divorced from the statutory language; and (2) we then proceeded to adopt our own interpretation. See supra at 16–17. The first holding necessarily translates, in Chevron step-two terms, into a conclusion that the BIA’s construction is unreasonable and not entitled to deference. As Wood explained, the BIA has effectively rewritten the “single scheme” exception “as if it read ‘single criminal act.’” 266 F.2d at 830 (emphasis added); see also id. (statute “says ‘not arising out of a single scheme of criminal misconduct’; it does not say ‘not arising out of a single criminal act’”). Because Chevron step two requires deference only to an agency’s reasonable construction of the meaning of the words of the ambiguous statute, it does not require (or permit) us to defer to an interpretation that essentially rewrites the statute’s text so that it is more to the agency’s liking. Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 328 (2014) (“[A]n agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”). And we cannot permit an agency to disregard the legislative text merely because the agency has adopted a substantively reasonable policy (as is arguably the case here). The agency’s policy choices must be made within the bounds established by Congress in adopting the statutory text that constrains those choices. Where, as here, the agency has disregarded the limits Congress set in the statutory language, its policy choice merits no deference under Chevron.

This aspect of our decision in Wood—i.e., that the agency’s construction of the “single scheme” exception is not a permissible interpretation of the statutory text—remains binding precedent on the panel, and it controls the answer to the Chevron step-two inquiry. Under Wood, the agency’s reading of the exception is unreasonable, and it must be

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rejected. Because no subsequent decision of the Supreme Court or this court has undermined Wood on this point, the panel was obligated to follow it, and the panel should have rejected the BIA’s construction. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). Because the panel failed to follow controlling precedent on this point, we should have taken this case en banc.

The panel correctly notes that seemingly all other circuits have now acquiesced in the BIA’s reading, see 915 F.3d at 1234–35, and it suggests that the BIA’s analysis is not so unreasonable as to warrant creating a circuit split. That, of course, is irrelevant under Miller v. Gammie, because the panel was obligated to follow Ninth Circuit precedent absent intervening higher authority that is “irreconcilable” with Wood—and there is none. 335 F.3d at 900. Moreover, in fairness to the other circuit courts in most of these cases, it is not clear that the facts presented to them brought into comparably sharp relief the extraordinary narrowness of the BIA’s position. See, e.g., Balogun v. INS, 31 F.3d 8, 8–9 (1st Cir. 1994) (rejecting Ninth Circuit’s Wood test, and holding that BIA properly rejected petitioner’s expansive view that a two-year “continuing criminal enterprise” constitutes a “single scheme”); Chavez-Alvarez v. Attorney Gen., 850 F.3d 583, 586–87 (3d Cir. 2017) (holding that under BIA’s test, sexual assault was not part of “single scheme” with subsequent false denials of assault to investigators). But see Akindemowo v. INS, 61 F.3d 282, 286–87 (4th Cir. 1995) (endorsing BIA’s narrow reading and applying it to immediately successive uses of bad checks in two stores on a single visit to a shopping mall). In all events, we should no more acquiesce in our sister circuits’ misapplication of Chevron deference in construing the meaning of the statute

SZONYI V. WHITAKER 35 than we should accede to the BIA’s unwarranted invocation of that deference.

IV

The last remaining question is what consequence should follow from the BIA’s flawed construction of the “single scheme” exception in this case.

I do not believe that the answer should be to require the BIA to follow the alternative construction that we adopted in Wood and Gonzalez-Sandoval. Brand X seems to foreclose that possibility, because it states that “a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative,” and the BIA therefore remains free to “choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes.” 545 U.S. at 983. The only exception would be if our affirmative reading of the statute in Wood “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Id. at 982. For the reasons stated earlier, I agree with the panel that Wood’s alternative construction is not compelled by the statutory text. See supra at 25–26.

Indeed, I agree with the BIA, and with some of our sister circuits, that Wood’s construction is itself wrong. At a minimum, the Wood test is sufficiently questionable that the BIA, exercising its authority under Brand X, may properly adhere to its rejection of that test. Under the Wood test, where “two predicate crimes were planned at the same time and executed in accordance with that plan,” they “arise out of ‘a single scheme of criminal misconduct.’” Gonzalez- Sandoval, 910 F.2d at 616 (emphasis added); see also Szonyi,

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915 F.3d at 1233–34. In my view, the BIA has correctly criticized this construction of the statute, because it erroneously gives dispositive weight to the alien’s purely subjective intention to commit a series of otherwise unrelated crimes. (Ironically enough, the IJ in this case initially found that the Wood exception was inapplicable on its own terms precisely because Szonyi did not pre-plan his crimes.) As the BIA noted, Wood’s construction would produce anomalous results: a criminal mastermind who pre-plans an extended crime spree would escape deportation, but a lesser criminal who engages in exactly the same spree without such a preconceived plan would not. Matter of Adetiba, 20 I. & N. Dec. at 511. I do not disagree with the BIA’s apparent judgment that the word “scheme” requires some objective link between the crimes; the problem is instead that the BIA has defined that objective link so narrowly as to amount to a “single act” test rather than a “single scheme” test.

Accordingly, it would seem that the proper course would be to remand the matter to the BIA for it to adopt a new construction that interprets, rather than rewrites, the statute. That was also the course the Supreme Court followed when confronted with an analogous situation in Michigan v. EPA, 135 S. Ct. 2699 (2015). There, after setting aside the agency’s construction of a statute as unreasonable because it failed to account for costs, and after holding that the statute did not “unambiguously” require a particular method of accounting for cost, the Court left it to the agency on remand “to decide (as always, within the limits of reasonable interpretation) how to account for cost.” Id. at 2711. Because the BIA’s construction is unreasonable, and our

SZONYI V. WHITAKER 37 competing construction is not unambiguously required, the proper course would be to remand to the agency.^[4]

I respectfully dissent from the denial of rehearing en banc.

OPINION

CLIFTON, Circuit Judge:

Istvan Szonyi petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding a final order of removal against him. This case presents the question of whether the BIA permissibly interpreted the phrase “single scheme of criminal misconduct” under 8 U.S.C. § 1227(a)(2)(A)(ii). In that statute, the phrase operates as an exception to a ground for removal. Specifically, the statute provides that a person is deportable if he has been convicted of “two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” We previously adopted a different, broader interpretation of the phrase in Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), an interpretation we reaffirmed in Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990), and Leon-Hernandez v. INS, 926 F.2d 902 (9th Cir. 1991). Because the phrase in question operates as an exception to a ground for deportation, the BIA’s narrower definition of the exception serves to broaden the application of the removal provision, making Szonyi