Herold St. Pierre v. Attorney General of the United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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18-3280
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HEROLD ST. PIERRE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(No. A038-763-897)
Immigration Judge: Honorable Leon A. Finston
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Submitted Under Third Circuit L.A.R. 34.1(a)
July 9, 2019
Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges
(Opinion filed: July 23, 2019)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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KRAUSE, Circuit Judge.
Herold St. Pierre, a citizen of Haiti, petitions for review of a decision by the Board
of Immigration Appeals (BIA) ordering him removed based on his convictions for “two
or more crimes involving moral turpitude, not arising out of a single scheme of criminal
misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii). Because the BIA properly applied its
standard as to what constitutes a “single scheme,” we will affirm.
I. Background
The incidents giving rise to St. Pierre’s conviction occurred on the evening of
April 18, 1996. At approximately 6:00 p.m., St. Pierre received a stolen vehicle, and then
drove himself and two friends from Essex County, New Jersey to a mall about 40 miles
away. At the mall, a police officer spotted St. Pierre sitting in the vehicle, which was
parked in a fire zone, but when the officer approached, St. Pierre sped away. After
driving around the facility, St. Pierre came back to the mall to pick up his friends. At
approximately 9:00 p.m., the officer, after spotting the vehicle again and having
headquarters run the license plate number, discovered the vehicle had been reported
stolen. When he ordered the vehicle to stop, the car sped away a second time, striking
and injuring the officer in the process. After reaching speeds of up to 100 miles per hour
and running several red lights in his attempt to escape police, St. Pierre crashed into
another automobile, killing its driver. After a jury trial, St. Pierre was convicted of,
among other offenses, receiving a stolen vehicle in violation of N.J. Stat. Ann. § 2C:20-7
and aggravated manslaughter in violation of N.J. Stat. Ann. § 2C:11-4a.

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As a result of these convictions, the Immigration and Naturalization Service,
predecessor to the Department of Homeland Security (DHS), initiated removal
proceedings. As relevant here, DHS eventually charged St. Pierre as removable under 8
U.S.C. § 1227(a)(2)(A)(ii), which provides that “[a]ny 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.” The
Immigration Judge (IJ) sustained the charge, concluding that St. Pierre’s convictions for
crimes involving moral turpitude (CIMTs), namely receiving a stolen vehicle and
aggravated manslaughter,1 did not “arise out of a single scheme.” AR 159. The BIA
affirmed, and this appeal followed.
II. Discussion2
St. Pierre argues that the BIA erred by (1) applying a categorical analysis, and (2)
not applying its own circumstance-specific test to determine whether St. Pierre’s CIMTs
arose out of a single scheme. We address these arguments in reverse order as the BIA’s
1 St. Pierre does not contest that his convictions for receiving a stolen vehicle and
aggravated manslaughter qualified as CIMTs.
2 St. Pierre was ordered removed on the basis of 8 U.S.C. § 1227(a)(2)(A)(ii), and
therefore, we have jurisdiction to review his petition only to the extent it raises
constitutional claims or questions of law, 8 U.S.C. § 1252(a)(2)(D). Given the
circumstance-specific analysis that applies to determining whether or not multiple CIMTs
arise from a single scheme, our task is to decide whether “the facts found by the IJ (and
that the BIA determines are not clearly erroneous) meet the legal requirements” for
removal under § 1227(a)(2)(A)(ii). Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir.
2010). This is a question of law subject to de novo review. See id.

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extensive discussion of the factual circumstances here makes apparent that it did not
apply a categorical rule in this case.
First, the BIA’s analysis demonstrates that it both acknowledged and applied the
circumstance-specific test it endorsed in Matter of Adetiba, 20 I. & N. Dec. 506 (BIA
1992), and Matter of Islam, 25 I. & N. Dec. 637 (BIA 2011), to determine whether St.
Pierre’s CIMTs were part of a single scheme. Finding the BIA’s interpretation of “single
scheme” reasonable, we have accorded it Chevron deference. See Chavez-Alvarez v.
Att’y Gen., 850 F.3d 583, 587 (3d Cir. 2017) (citing Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 844-45 (1984)).
The BIA has interpreted the phrase “arising out of a single scheme of criminal
misconduct,” 8 U.S.C. § 1227(a)(2)(A)(ii), to be satisfied either (1) “where one crime
constituted a lesser offense of another,” or (2) “where the two crimes flow from and are
the natural consequence of a single act of criminal misconduct,” Adetiba, 20 I. & N. Dec.
at 509. For one crime to flow from another, “the scheme must take place at one time,
meaning there must be no substantial interruption that would allow the participant to
disassociate himself from his enterprise and reflect on what he has done.” Id. at 509-10.
The BIA has since explained that determining whether CIMTs are part of a “single
scheme” is “a ‘circumstance-specific’ inquiry in which all relevant evidence may be
consulted.” Islam, 25 I. & N. Dec. at 641 (citation omitted).
In Chavez-Alvarez, we affirmed the BIA’s conclusion that a petitioner’s two
convictions—for sodomy and for making false statements about whether he committed
sodomy—did not arise out of a “single scheme” of criminal misconduct because,

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although they took place only seven hours apart, the petitioner “had the opportunity to
reflect on what he had done but chose—on two separate occasions—to make false
statements denying his actions.” 850 F.3d at 587. Noting that the petitioner had
sufficient time to reflect, we upheld the BIA’s ruling that “there was a substantial
interruption of time between” the crimes to render them separate. Id.; see also Szonyi v.
Whitaker, 915 F.3d 1228, 1231-32 (9th Cir. 2019) (holding that one man’s sexual assaults
on multiple women over a period of five to six hours were not part of a single scheme);
Akindemowo v. INS, 61 F.3d 282, 283 (4th Cir. 1995) (holding that tendering two
separate fraudulent checks in the same mall and during the same trip but at two different
stores did not constitute a single scheme).
Here, too, the BIA properly concluded that St. Pierre’s convictions did not arise
from a “single scheme.” Rather, consistent with and citing to Matter of Adetiba and
Matter of Islam, it undertook a circumstance-specific analysis, recounting the specific
facts of the case, and noting, in particular, the substantial interruption between St.
Pierre’s receipt of the stolen vehicle “earlier in the day” and the subsequent incident in
which he crashed that vehicle. AR 4. The BIA further explained that “[t]he act of
receiving stolen property is distinct from the subsequent flight from police” and even
more attenuated from “[t]he resulting crash that killed a bystander.” AR 4. From these
specific circumstances, the BIA drew the conclusion that “[a]ggravated manslaughter is
not the natural consequence of receiving a stolen automobile.” AR 4. Thus, under its
own precedent as well as that of our Court, the BIA properly concluded that St. Pierre’s

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crimes did not “aris[e] out of a single scheme of criminal misconduct.” 8 U.S.C. §
1227(a)(2)(A)(ii).
That takes us to St. Pierre’s second argument: that the BIA erred as a matter of law
by invoking and applying a “categorical rule” at odds with the BIA’s own standard.
Pet’r’s Br. at 17. As the foregoing discussion makes clear, that contention is belied by
the BIA’s opinion itself. In the context of its recitation and analysis of the facts
underlying St. Pierre’s convictions, the BIA’s statement that “[a]ggravated manslaughter
is not the natural consequence of receiving a stolen automobile,” AR 4, reflects not a
categorical rule, but that the two CIMTs were sufficiently attenuated by time and
intervening events that they did not constitute a “single scheme.” That was a faithful
application of the BIA’s own legal standard, Islam, 25 I. & N. Dec. at 641, and provides
no basis for the relief that St. Pierre seeks.
III. Conclusion
For the aforementioned reasons, we will deny St. Pierre’s petition for review.

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