Wednesday, February 13, 2019

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Ninth Circuit Won’t Block Deportation of Sexual Predator

Bows to Administrative Interpretation of Statute Barring Removal of Lawful Resident Based On ‘Single Scheme’; Judge Fisher Dissents, Wants More Input From Agency

By a MetNews Staff Writer

ISTVAN SZONYI

Registered Sex Offender

The Ninth U.S. Circuit Court of Appeals yesterday, in a 2-1 decision, denied review sought by a citizen of Hungary who is protesting his impending deportation based on terrorizing three females over a period of five to six hours, forcing them, under threats of violence, to commit sexual acts.

Circuit Judge Richard R. Clifton wrote the majority opinion, joined in by colleague Consuelo M. Callahan. Dissenting was Circuit Judge Raymond C. Fisher who said he would remand the matter to the Board of Immigration Appeals (“BIA”) for findings as to whether there was a “substantial interruption” between the commission of the various acts.

The petitioner is Istvan Szonyi, 66, who pled guilty in Los Angeles Superior Court to two counts of oral copulation and two counts of sexual penetration with a foreign object, committed in 1981. In 2005, the federal government instituted deportation proceedings.

(Although the opinion notes that Szonyi pled guilty to two counts under California Penal Code §288A(c)—now §287(c)—it does not identify that provision as pertaining to oral copulation of a person under the age of 14, and refers to all of the victims as being “women.”)

Statutory Interpretation

At issue in the case is whether Szonyi—a noncitizen who has been a lawful permanent resident since the age of 4—is removable, under 8 U.S.C. §1227(a)(2)(A)(ii), based on convictions of “two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.”

Szonyi insists that his actions toward the victims constituted a “single scheme.” The BIA found to the contrary.

The BIA has interpreted the statutory language 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.”

Clifton’s View

Clifton wrote:

“We uphold the BIA’s interpretation under the principles of Chevron deference that apply when the BIA interprets immigration laws.”

He went on to say:

“[C]ontrary to Szonyi’s argument, there is no circuit precedent holding that the text of the statute unambiguously forecloses the BIA interpretation.

“Our decision here is consistent with the decisions of other circuits that have considered the BIA’s interpretation….”

The jurist also said that the that the BIA did not impermissibly apply its interpretation of the statute retroactively to Szonyi because and that its denial of discretionary relief is not judicially reviewable.

Fisher’s Dissent

Fisher said in his dissent:

“BIA precedent squarely holds that two or more crimes committed during a single criminal episode arise from a single scheme of criminal conduct, and hence do not render an individual] removable under 8 U.S.C. § 1227(aX2)(A)(ii), 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….Because we cannot discern 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, and there is nothing in the record to suggest there was a ‘substantial interruption’ between the crimes, I would grant the petition for review and remand to the BIA for an adequate explanation….Although our review of BIA decisions is limited and deferential, we may not deny a petition for review where, as here, we are left to speculate as to the BIA’s reasoning, and where we cannot discern from the record whether the BIA misapplied its own precedent.”

He pointed out:

“Szonyi was not convicted of assaulting three women, and he was not convicted of engaging in assaults over a period of five or six hours. He was convicted of four unlawful acts involving two women, and the record is silent as to when those acts occurred in relation to one another.”

The case is Szonyi v. Whitaker, 15-73514.

Szonyi was sentenced to 12 years in prison, was released in 1988, and now resides in an apartment in West Hollywood. The Department of Justice Sex Offender Registry lists his weight at 475 pounds.