Olawale Balogun v. INS
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Bluebook
Olawale Balogun v. INS, (1st Cir. 1994).
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 94-1011
HENRY OLAWALE BALOGUN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
__________________
ON PETITION FOR REVIEW OF AN
ORDER OF THE BOARD OF IMMIGRATION APPEALS
___________________
Before
Torruella, Selya and Cyr,
Circuit Judges
______________
___________________
Henry Olawale Balogun on brief pro se.
_____________________
Frank W, Hunger, Assistant Attorney General, Richard M.
________________ ___________
Evans, Assistant Director, and John L. Davis, Attorney, Office of
_____ _____________
Immigration Litigation, on brief for respondent.
__________________
July 28, 1994
__________________
Per Curiam. Petitioner seeks review of a final
___________
order of deportation by the Board of Immigration Appeals
(BIA). His sole argument on appeal is that the BIA erred in
finding him deportable under the Immigration and Nationality
Act, 8 U.S.C. 1251(a)(2)(A)(ii), because he had been
convicted of two crimes of moral turpitude "not arising out
of a single scheme of criminal misconduct." Petitioner
argues that his convictions should be construed as arising
from a "single scheme" because they were part of a continuing
criminal enterprise. He asserts that his crimes thus
"morally constitute only a single wrong."
Petitioner pled guilty in a United States district
court to one count of conspiracy to commit mail fraud, and
three counts of mail fraud. The indictment charged that from
about April 1, 1989 to October 16, 1991, he conspired with
others to use the mails to submit false accident reports and
claims to various insurance companies. The specific acts of
fraud to which petitioner pled guilty occurred on three
separate dates: October 16, 1990, October 21, 1991 and
November 15, 1991. The crimes involved three different
insurance companies, separate locations, and the use by
petitioner of three different aliases.1 Petitioner's 33-
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1. Petitioner does not deny the accuracy of the facts
recited in the indictment. At the deportation hearing he
admitted participating in the filing of 124 false accident
reports, and receiving $217,000 therefrom.
-2-
month sentence was affirmed on appeal. United States v.
______________
Balogun, 989 F.2d 20 (1st Cir. 1993).
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In Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976),
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cert. denied, 430 U.S. 985 (1977), we interpreted the meaning
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of the statutory language "single scheme" in light of the
purpose of the Act, accepting that the intent of Congress was
to give "a one-time alien offender . . . a second chance
before he could be deported." Pacheco, 546 F.2d at 451.
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To us this suggests that a scheme, to be a "single
scheme," must take place at one time; there must be
no substantial interruption that would allow the
participant to disassociate himself from his
enterprise and reflect on what he has done.
. . . .
Our present thinking is that both the purpose of
the statute and the use of the adjective "single"
point to a temporally integrated episode of
continuous activity. When the immediate activity
has ended, even though a "scheme" calls for future
activity a participant has his second chance to
make a decision. He need not further pursue a
multistage scheme.
Id. at 451-52.
___
Petitioner implicitly recognizes that under Pacheco
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his crimes cannot be characterized as a "single scheme." He
argues, however, that this court should apply the more
"expansive definition" adopted by the Ninth Circuit. In
Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990), the
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Ninth Circuit reaffirmed the approach it had adopted in Wood
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v. Hoy, 266 F.2d 825 (9th Cir. 1959), holding that the
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government had not disproved the existence of a single scheme
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where uncontradicted, credible evidence showed that the two
predicate crimes were planned at the same time and executed
according to the plan. Older cases from the Second and Third
Circuits suggest a similarly expansive definition. See Nason
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v. INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830
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(1968); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).
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In Pacheco, however, we rejected the approach
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Stanley Sawkow v. Immigration and Naturalization Service
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Edward Nason v. Immigration and Naturalization Service
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Cesar Nicolau Pacheco v. Immigration and Naturalization Service
546 F.2d 448 (First Circuit, 1976)
Ricardo Gonzalez-Sandoval v. U.S. Immigration and Naturalization Service
910 F.2d 614 (Ninth Circuit, 1990)
Minister David Iredia v. Immigration and Naturalization Service
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