Resolving Multiple Counts and the Single Scheme Question
A global resolution that disposes of every count at once looks efficient inside the criminal case and can be expensive outside it. The plural-conviction ground counts convictions, not proceedings, and the clause that merges them is read narrowly by the agency and more generously by some circuits.
The rule in short
The deportability ground for multiple turpitude offenses reaches a client convicted of two or more such crimes not arising out of a single scheme of criminal misconduct, and it applies whether or not the convictions were entered in one trial. The agency reads the single scheme clause to cover one uninterrupted episode. Several circuits read it to cover offenses planned together and carried out under a common plan, so the same disposition can produce different answers.
A global resolution that clears every count in one hearing is the ordinary shape of a criminal case. Outside the criminal case it is read differently. The deportability ground for multiple turpitude offenses counts convictions, and it says in terms that it applies whether or not the convictions were entered in a single trial. Two counts resolved together on one afternoon are two convictions, and the number is what the ground turns on.
How counts are counted after the case closes
The ground reaches a client convicted at any time after admission of two or more crimes involving moral turpitude that do not arise out of a single scheme of criminal misconduct. It carries no requirement that the offenses be recent, no requirement of confinement, and no sentence threshold. A pair of small misdemeanors, each with a suspended term, satisfies it as completely as two serious felonies would. The single variable that reduces the count is the scheme clause.
The plural ground also differs from its single-conviction counterpart in a way that is easy to miss. One turpitude conviction reaches the deportability ground only where the offense was committed within five years after admission and carries a possible sentence of a year or more. The plural ground has neither limitation. It operates at any time after admission and without regard to the penalty available, so two old and minor convictions can satisfy it where one recent conviction would not.
Two features of the drafting matter to a defense lawyer. The first is the express statement that a single trial does not merge convictions, which forecloses the intuitive argument that one proceeding produces one result. The second is that the clause speaks of a scheme of criminal misconduct rather than of a plea agreement, so the shape of the negotiation is irrelevant. What is compared is the conduct underlying each count.
The judgment is the document later read. Where counts are listed separately with separate sentences, the arithmetic is done from that page, and the fact that the parties treated the case as one matter appears nowhere. That is one reason the discipline described in keeping the record of conviction narrow extends past the plea colloquy to the judgment and the sentencing order.
What the single scheme clause actually merges
The agency reads the clause narrowly. On its construction, offenses arise from a single scheme when they are performed in one uninterrupted episode: a forgery and the uttering of the same instrument in the same transaction, an entry and the theft completed during it, an offense and a lesser included offense charged alongside it. Once the client has completed one crime and then embarked on another, even minutes later, the agency treats the acts as separate schemes.
Several courts of appeals have rejected that reading. On the broader construction, offenses planned at the same time and carried out in furtherance of a common plan form one scheme even where they are separated by days or by distance, because a scheme is understood as a plan rather than an episode. The disagreement is long-standing and unresolved. A client convicted of two counts in a jurisdiction taking the broader view may face a different answer if the case is later heard elsewhere.
Because the clause operates as an exception, the client carries the work of fitting inside it, and the only material available is whatever the criminal record contains. Charging documents naming one date and one transaction, and a factual basis describing a continuous episode, leave something to argue from. Separate dates written into separate counts for charging convenience can foreclose the argument before anyone thinks to make it.
| How the counts arose | Convictions entered | How the scheme clause is applied |
|---|---|---|
| Forgery and uttering the same instrument in one transaction | Two | One scheme on either construction |
| Entry and the theft completed during the same entry | Two | Ordinarily one scheme on either construction |
| Two takings from the same store on different days | Two | Separate schemes on both constructions |
| A series of false claims planned at once, filed over months | Several | Separate for the agency, arguably one in some circuits |
| One count entered, the remainder dismissed | One | The clause is never reached |
The exception that forgives a single petty turpitude offense asks whether the client committed only one such crime. There is no merging provision attached to it. Two convictions arising from one uninterrupted episode may count as one for deportability and still be two for that exception, which means a disposition designed around the scheme clause can lose the exception entirely.
What a second count costs on the admission side
The petty offense exception is the clearest casualty. It is available only where one turpitude crime has been committed, so a second qualifying count removes it however small the sentences are. A resolution built to satisfy both ceilings on a single count, as described in keeping a charge inside the petty offense exception, is undone by adding a companion count that nobody at the table regarded as significant.
A separate ground sits alongside it and does not depend on turpitude at all. It reaches a client convicted of two or more offenses of any description where the aggregate sentences to confinement total five years or more, and it applies whether the convictions came from one trial or several. Counsel structuring a resolution across multiple cases has to add the pronounced terms rather than the terms to be served, since suspension does not reduce the figure.
Because the two sides of the analysis pull in different directions, a resolution that improves one can quietly damage the other. Where a client has existing convictions, or where several cases are being resolved at once, the comparison is worth putting to counsel for multiple turpitude convictions before any count is conceded, since the value of each concession depends on what is already on the record.
One longer count against two shorter ones
The trade appears in almost every multi-count negotiation. A prosecutor offering two counts with short concurrent terms is offering less custody than a single count with a longer term, and for a citizen client the choice is easy. For a non-citizen it can be reversed. One conviction with a nine-month term keeps the client outside the plural-conviction ground; two convictions with thirty-day terms place the client inside it and remove the petty offense exception as well.
The counter-consideration is the sentence figure itself, because several categories turn on whether a term reaches one year. A single count carrying a longer term can cross a threshold that two short counts would never approach. There is no general answer. What the comparison requires is that both axes be priced at the same time, rather than the custody figure being settled first and the count structure treated as a detail.
Charging decisions made earlier shape how much room exists. Where counts were joined at the outset, the prosecutor may have little reason to unbundle them, and the mechanics of how counts are joined in a charging instrument explain why the offer arrives in the form it does. Whether any of the counts is turpitudinous in the first place is the prior question, and the elements that make an offense turpitudinous decides which counts even enter the arithmetic.
Points to carry away
- The plural-conviction ground applies regardless of whether the convictions were entered in a single trial or at a single hearing.
- Convictions arising out of a single scheme of criminal misconduct are treated as one for that ground.
- The agency reads a single scheme to mean one uninterrupted episode, while several circuits read it to include offenses executed under a common plan.
- The inadmissibility side has no scheme clause at all, so a second turpitude conviction removes the petty offense exception outright.
- A separate inadmissibility ground reaches two or more convictions of any kind whose sentences to confinement total five years or more.
- Concurrent sentences do not reduce the number of convictions, only the time to be served.
Questions readers ask
Do concurrent sentences reduce the number of convictions?
No. Concurrency governs how time is served and has no effect on how many convictions exist. Two counts resolved on the same day with fully concurrent terms produce two convictions, each with its own sentence imposed for immigration purposes. The same is true of a sentence that runs concurrently with a term already being served on another case. Counsel negotiating a global resolution should count judgments rather than months, because the ground that matters here is triggered by the number of qualifying convictions and not by total custody.
Does a count dismissed as part of the agreement still count?
A dismissed count is not a conviction, so it does not add to the total. It can still cause difficulty in a different way. Where the dismissed count is described in a factual basis, a restitution order or a sentencing memorandum, its conduct enters the record and can be read by an adjudicator asking what the remaining count involved. The safest structure keeps dismissed conduct out of the documents that follow the judgment rather than merely out of the count list.
How does a probation violation on one count affect the analysis?
A violation does not create a new conviction, because the underlying conviction already exists. What it changes is the sentence figure attached to that conviction. Where a suspended term is executed on revocation, the sentence imposed is measured by the full pronounced term, which can push a count above a threshold that the original disposition was built to stay under. Where two counts each carry suspended terms, a single revocation proceeding can move both figures at once.
Sources
- 8 U.S.C. § 1227 — Deportable aliensContains the plural-conviction ground, the single scheme clause, and the statement that a single trial does not merge convictions.
- 8 U.S.C. § 1182 — Inadmissible aliensLimits the petty offense exception to one crime and adds the separate ground for two or more convictions with aggregate sentences of five years.
- 8 U.S.C. § 1101 — DefinitionsDefines conviction and term of imprisonment, which fixes what counts as a second judgment and how each sentence is measured.
- 8 U.S.C. § 1229b — Cancellation of removalShows the relief that a second qualifying conviction can foreclose, which is often the real cost of a global disposition.
- Federal Rule of Criminal Procedure 32 — Sentencing and judgmentGoverns the judgment that records each count separately, which is the document later read to count convictions.
- 8 C.F.R. § 1240.8 — Burdens of proof in removal proceedingsAllocates the burden on the scheme question, which matters because the clause operates as an exception the client must fit into.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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