Inadmissibility for Two CIMT Convictions Section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(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.” For more information see article on INA §237(a)(2)(A)(ii). When are two convictions arising out of a single scheme? The BIA addressed this issue in the first decision of 2025 issued on January 31, 2025, Matter of Baeza Galindo, 29 I&N Dec. 1 (BIA 2025). (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, 8 U.S.C. § 1227(a)(2)(A)(ii) (2018). Matter of Adetiba, 20 I&N Dec. 506, 509 (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. Full Decision Two crimes arise from the course of the same criminal conduct when the conduct is required to complete the offense. So when a lesser included offense is committed during the course of the primary offense then it arises from the same criminal conduct. An act that is done as part of the same criminal offense but is not required to complete that offense is a separate act of criminality and thus a second offense. For example, shooting at a police officer that responds to a robbery call is a second offense because it was not part of the robbery itself. In this case the Respondent was fleeing the scene of an aggravated assault he committed when he drove his truck into two young mothers and their infants then failed to stop and render aid. His failure to stop and render aid was not part of the aggravated assault that he committed, rather, it was part of his trying to get away with it. It was a separate criminal act that he committed. “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 Baeza Galindo, 29 I&N Dec. 1 (BIA 2025) (citing Matter of Z-, 6 I&N Dec. at 171). RULING 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.

Section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(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.” INA §237(a)(2)(A)(ii) [full statute] When are two convictions arising out of a single scheme? See article on “arising out of a single scheme“.

STEP 1 Identify the “Generic” Definition of the Removal Ground The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of terms describing crimes, e.g., “crime involving moral turpitude,” “crime of child abuse,” “law…relating to a controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the term that appears in the removal ground with which we are concerned. Federal court or Board of Immigration Appeals case law may define a general term; checking secondary sources can save research time. Some removal grounds reference a federal statute as the definition, in which case we look to federal cases interpreting that statute. The Supreme Court reviewed possible sources for definitions, including the Model Penal Code, common law, and the law of several states, and finally decided that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added). Note on subsequent expansion of the definition of burglary. Almost thirty years after Taylor, the Supreme Court revisited this generic definition and held that it includes burglary of a vehicle that is “adapted or customarily used for lodging.” United States v. Stitt, 139 S.Ct. 399 (2018). The Court reviewed its prior decisions on burglary, in Taylor, Mathis, etc., and found that that particular issue had not been presented, and the prior decisions did not conflict with it. Because the new definition does not affect those prior decisions, we will not discuss it further as part of this example. Identify the minimum conduct prosecuted that violates the statute of conviction Using the text of the statute of conviction, state case law, or other materials, we identify the minimum conduct required to violate the statute of which our client was convicted. Court decisions may refer to this as the “minimum conduct,” “least acts criminalized,” or “least adjudicated elements.” Remember that we are focusing solely on the minimum conduct that can be or has been prosecuted under the statute, and “ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Supreme Court has cautioned that an immigrant may not simply imagine some theoretical, possible minimum conduct for an offense, but must demonstrate a “realistic probability” that this minimum conduct actually would be prosecuted under the statute. One may prove this by producing one or more cases where someone was found guilty under the statute for committing the particular minimum conduct. One can cite to published or unpublished decisions, their own case, or arguably other materials such as documents from criminal prosecutions or press releases or newspaper articles, that document conviction for non-generic conduct. For further discussion of the realistic probability of prosecution, see Part II, below, and see online practice advisories. One excellent source of information about a state statute’s minimum conduct is the relevant state jury instruction for the offense. Do an internet search, or work with a criminal defense attorney, to find the instructions. The instructions also may cite to state precedential cases, which are the best authority. In addition to cases, many circuit courts of appeals have held that an immigrant can demonstrate that a statute is overbroad if the express language of the statute includes conduct that is outside of the generic federal definition. In circuits that have adopted this rule, sometimes referred to as the “express language rule,” no cases or other realistic probability proof is necessary. The BIA and just a few circuit courts of appeals have declined to adopt the express language rule. See Part II, below. In those jurisdictions, even if the statute describes a specific minimum conduct, the immigrant may need to provide a further showing of realistic probability of prosecution. Is the crime of conviction defined more broadly than the generic definition? Here is where we compare the elements of the generic definition with the elements of the client’s conviction. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to commit the state offense that would not also commit the generic definition, then there is no categorical match. If there is a categorical match, the removal ground will apply to every conviction under the statute. The client loses and our analysis is over. If there is no categorical match, then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. STEP 2 Is the Criminal Statute Divisible? This step may appear complex, but stay with it until the example. In Mathis, the Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: The jury unanimity requirement is a new concept to many immigration advocates, and state law is not always clear as to whether statutory alternatives are means (no juror unanimity requirement) or elements (juror unanimity requirement). In Mathis, the Supreme Court provided instructions on how to determine whether these statutory phrases are elements or means. The Court identified the following sources (see Mathis, 136 S. Ct. at 2256-2257): State case law. As was the case in Mathis, sometimes there are state cases that rule on whether statutory alternatives have a juror unanimity requirement. You can find these cases through ordinary state law research tools. State model criminal jury instructions, often available on state court system websites, may provide case citations that speak to the juror unanimity question, and thus can be a good place to start research. However, in