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 ...
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