915 F.3d 1228

FISHER, Circuit Judge, dissenting:
I agree with much of the majority opinion but disagree with the majority's conclusion that the Board of Immigration Appeals (BIA) reasonably applied its precedent to this case. Maj. Op. 1236-38. 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(a)(2)(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. Matter of Adetiba , 20 I. & N. Dec. 506, 509-10 (BIA 1992) (emphasis added). 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. See Eneh v. Holder , 601 F.3d 943, 947-48 (9th Cir. 2010). 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. See Alphonsus v. Holder , 705 F.3d 1031, 1049 (9th Cir. 2013), abrogation on other grounds recognized by Guerrero v. Whitaker , 908 F.3d 541, 544 (9th Cir. 2018). I therefore respectfully dissent.
I
Istvan Szonyi was admitted to the United States, at the age of four or five, in 1957. In 1981, he was convicted of four criminal offenses involving two victims - two counts of unlawful oral copulation in violation of California Penal Code § 288a(c) and two counts of unlawful penetration in violation of California Penal Code § 289. He was sentenced to 12 years in prison, and released from prison in 1988.
The record tells us that Szonyi's offenses arose out of a single, continuous and horrific criminal episode: Szonyi invited three women into his nearby place of work, where he threatened, abused and degraded them over a period of five or six hours. The record does not, however, reveal when during this five or six hour period the four criminal offenses for which Szonyi was convicted occurred. Nor does it explain how much time elapsed between the offenses, or whether there was a substantial interruption between them.
In 2005, the Department of Homeland Security commenced removal proceedings against Szonyi. Relying on the 1981 convictions, the government charged Szonyi with being removable under 8 U.S.C. § 1227(a)(2)(A)(ii), which states:
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.
8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis added). The BIA agreed with the government that Szonyi was removable because he was convicted of multiple offenses of moral turpitude "not arising from a single scheme." Szonyi timely petitioned for review. The majority would deny the petition. I would grant it.
II
The term "arising out of a single scheme of criminal misconduct" is not defined by the Immigration and Nationality Act. The BIA, however, has defined the term in a series of precedential decisions, holding that, "to be a 'single scheme,' 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." Matter of Adetiba , 20 I. & N. Dec. at 509-10 (emphasis added); accord Matter of Islam , 25 I. & N. Dec. 637, 640, 642 (BIA 2011).
In adopting this substantial interruption rule, the Board followed the First Circuit's decision in Pacheco v. INS , 546 F.2d 448 (1st Cir. 1976). See Matter of Adetiba , 20 I. & N. Dec. at 509-11. In Pacheco , the First Circuit held that "the intent of Congress in [adopting the 'single scheme' language] was to give 'a one-time alien offender ... a second chance before he could be deported.' " Pacheco , 546 F.2d at 451 (second alteration in original) (quoting Nason v. INS , 394 F.2d 223, 227 (2d Cir. 1968) ). Thus, "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." Id. The court explained 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." Id. at 452.
The Board also cited its own decision in Matter of Pataki , 15 I. & N. Dec. 324 (BIA 1975), as exemplifying the substantial interruption rule. See Matter of Adetiba , 20 I. & N. Dec. at 510. In Matter of Pataki , 15 I. & N. Dec. at 325, the respondent pled guilty to two crimes occurring on the same day - an assault on his mother-in-law and a subsequent assault on his wife. The BIA sustained the immigration judge's conclusion that the two crimes were part of a "single scheme of criminal misconduct":
This evidence indicates that the crimes for which the respondent was convicted stem from a marriage problem. In his rage, the respondent pushed his mother-in-law down the stairs. The rage continued to the point that a few minutes later, he went for a knife and then stabbed his wife. We are satisfied that both crimes were committed within a few minutes of each other as the result of the same criminal impulse in the course of the same episode. This evidence is probative of the existence of a single scheme.
Id. at 326.
Szonyi invoked the BIA's "substantial interruption" precedent here. Citing Matter of Adetiba and Matter of Islam , he correctly argued in his brief to the BIA that "for a course of criminal misconduct to constitute a single scheme it must take place at one time with no substantial interruption that would provide the perpetrator the opportunity to disassociate himself and reflect on the criminal enterprise." Administrative Record 11. He then argued that the criminal acts he committed constituted a "single scheme of criminal misconduct," because "there was no substantial interruption" that would have allowed him "to disassociate himself from his enterprise." Id. at 12-13.
The BIA did not meaningfully address this argument. To be sure, the Board said in a conclusory fashion that Szonyi had an opportunity between offenses to reflect on what he had done and to disassociate himself from the criminal enterprise:
[T]hat the crimes occurred over a period of 6 hours did not deprive the respondent of an opportunity to reflect upon one crime before committing another. After the abuse of any one victim, the respondent had the opportunity to cease his activities and reflect on what he had done. Accordingly, the respondent was convicted of multiple offenses of moral turpitude not arising from a single scheme.
But the BIA did not provide any basis for concluding that Szonyi had an opportunity to reflect upon one crime before committing another. Significantly, the Board did not say that there was a substantial interruption between the crimes.
Our case law makes clear that the BIA must adequately explain its decisions. As we said in Delgado v. Holder , 648 F.3d 1095 (9th Cir. 2011) (en banc),
the BIA must provide "a reasoned explanation for its actions." Movsisian v. Ashcroft , 395 F.3d 1095, 1098 (9th Cir. 2005). "Due process and this court's precedent require a minimum degree of clarity in dispositive reasoning and in the treatment of a properly raised argument." Su Hwa She v. Holder , 629 F.3d 958, 963 (9th Cir. 2010). The BIA must be clear enough that we need not "speculate based on an incomplete analysis." Id. at 964 ; see also Eneh v. Holder , 601 F.3d 943, 947 (9th Cir. 2010).
Id. at 1107.
The Board has not discharged that duty here. Did it conclude that a "substantial interruption" is not required? If so, how can it reconcile that conclusion with its decisions in Matter of Adetiba and Matter of Islam ? See Henriquez-Rivas v. Holder , 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc) ("[W]e find that the BIA misapplied its own precedent .... Accordingly, we grant [the] petition for review and remand to the BIA for further proceedings."); Israel v. INS , 785 F.2d 738, 740 (9th Cir. 1986) ("The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so."). Did it instead conclude that there was a "substantial interruption" in this case? If so, why didn't it say so, and what is the basis in the record for that conclusion?
The majority concludes that the substantial interruption requirement is satisfied in Szonyi's case because the crimes were "committed over a span of six hours." Maj. Op. 1328. But this reasoning is unpersuasive. First, our review must be based on the BIA's reasoning, not our own. See Andia v. Ashcroft , 359 F.3d 1181, 1184 (9th Cir. 2004) ("If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case."). Second, because the record does not reveal when during these five or six hours Szonyi's crimes of conviction occurred, it does not support the majority's conclusion that they were committed "over a span of six hours." They may have occurred within "a few minutes of each other," as in Matter of Pataki , 15 I. & N. Dec. at 326. Third, even assuming arguendo that the crimes occurred over hours rather than minutes, the BIA has never held that a passage of time or the duration of a continuous criminal episode, without more, establishes a substantial interruption. As Pacheco makes clear, "a temporally integrated episode of continuous activity," as apparently occurred here, constitutes a single scheme, not two separate schemes. 546 F.2d at 452.
The majority says the Board's failure to "distinguish Szonyi's case from ... other decisions ... is understandable" because "Szonyi failed to argue before the BIA that his case was comparable to those cases or to any of its precedents." Maj. Op. 1328. Szonyi's brief to the BIA, however, cited the BIA's two key decisions on the substantial interruption issue - Matter of Adetiba and Matter of Islam - and made the substantial interruption issue the centerpiece of his BIA appeal. See Administrative Record 11-13. It is, in fact, difficult to see what more Szonyi could have done to place the issue before the Board. It is true that Szonyi's brief before the BIA did not mention some other BIA decisions, such as the two decisions discussed above in footnote 1. But this is of no moment. Szonyi squarely presented the substantial interruption issue to the Board. The BIA, therefore, was bound to address the issue in a manner that would allow for meaningful appellate review.
The majority alternatively suggests we can uphold the BIA's decision by relying on the deferential standard of review we apply to the BIA's findings of fact. The majority notes that the BIA found Szonyi "had the opportunity to cease his activities and reflect on what he has done," and argues that the record does not compel "a conclusion that Szonyi had no opportunity to reflect on his acts over a period of five or six hours while subjecting three separate women to nonconsensual sexual acts." Maj. Op. 1327. I cannot agree.
First , the issue in this case is whether Szonyi had an opportunity to reflect between the actual crimes for which he was convicted . 8 U.S.C. § 1227(a)(2)(A)(ii). 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. Second , although we have a duty to defer to the Board's findings of fact, we do not defer to mere speculation. See Maini v. INS , 212 F.3d 1167, 1175 (9th Cir. 2000) ("We have said it before and we say it again: conjecture and speculation can never replace substantial evidence."). Here, there is nothing in the record to show that any time elapsed between the actual crimes for which Szonyi was convicted. Hence, if the BIA relied on the theory that time elapsed between Szonyi's crimes, then the BIA relied on speculation, and its finding is not supported by substantial evidence. If the BIA alternatively relied on the theory that no time lapse was required , then the BIA needed to reconcile that conclusion with its own precedent. See Matter of Adetiba , 20 I. & N. Dec. at 509-10 (holding that there must be a "substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done"); Matter of Islam , 25 I. & N. Dec. at 640, 642 (same); Matter of Pataki , 15 I. & N. Dec. at 326 (holding that two distinct crimes involving different victims, committed within a few minutes of each, resulting from the same criminal impulse and committed in the course of the same episode arose out of a "single scheme of criminal misconduct"); Matter of B- , 8 I. & N. Dec. at 239 (holding that a "single scheme" exists when "there are a series of similar acts which occurred at 'one time," as when "A & B are indecently fondled at the same time"); Matter of Z- , 8 I. & N. Dec. at 175 (same). The standard of review offers no shelter here.
III
On this record, I would grant the petition for review and remand for the BIA to adequately explain its decision. BIA precedent clearly requires a "substantial interruption" between offenses, and Szonyi squarely placed this issue before the BIA. The BIA, however, did not address it, leaving us to speculate whether the BIA disregarded the "substantial interruption" requirement, in contravention of its own precedent, or concluded that there was a "substantial interruption" between offenses in this case, but without saying so and without pointing to anything in the record to support that conclusion. Absent an adequate explanation, we cannot effectively review the Board's decision.
See also Matter of B- , 8 I. & N. Dec. 236, 239 (BIA 1958) (holding that a "single scheme" exists when "there are a series of similar acts which occurred at 'one time," as when "A & B are indecently fondled at the same time"); Matter of Z- , 8 I. & N. Dec. 170, 175 (BIA 1958) (explaining that "convictions for indecent fondling of two minors in the same room at the same time" are "so related in time and purpose as in reality to constitute" a single scheme).
The BIA's decision in Matter of Islam provides an example of a case in which multiple crimes committed on a single day were marked by a substantial interruption. There, the respondent admitted that
"on March 22, 2008, he used or attempted to use two different credit and debit cards belonging to another individual on five separate occasions to purchase goods." According to the Immigration Judge, the respondent "drove to four different locations and made five purchases over the span of a few hours." The locations where the cards were used were in two adjoining counties and involved different retail outlets, including Auto Zone and Walmart. During one transaction involving a stolen credit card, the respondent told the cashier that the card belonged to his girlfriend.
25 I. & N. Dec. at 638 (alteration omitted). The BIA held that "the respondent's crimes, while occurring in a single day, did not arise from a 'single scheme' of criminal misconduct," because, "[a]fter use of any one credit card, the respondent had the opportunity to disassociate himself from his enterprise and reflect on what he had done." Id. at 642 (alteration omitted). Here, by contrast, it is far from clear that there was a substantial interruption between Szonyi's offenses.
Matter of Adetiba , in turn, cited Matter of Pataki as exemplifying the substantial interruption rule. See Matter of Adetiba , 20 I. & N. Dec. at 510.

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