CLIFTON, Circuit Judge:
Istvan Szonyi petitions for review of a decision by the Board of Immigration Appeals (BIA) upholding a final order of removal against him. This case presents the question of whether the BIA permissibly interpreted the phrase single scheme of criminal misconduct under 8 U.S.C. § 1227(a)(2)(A)(ii). In that statute, the phrase operates as an exception to a ground for removal. Specifically, the statute provides that a person is deportable if he has been convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. We previously adopted a different, broader interpretation of the phrase in Wood v. Hoy , 266 F.2d 825 (9th Cir. 1959), an interpretation we reaffirmed in Gonzalez-Sandoval v. INS , 910 F.2d 614 (9th Cir. 1990), and Leon-Hernandez v. INS , 926 F.2d 902 (9th Cir. 1991). Because the phrase in question operates as an exception to a ground for deportation, the BIAs narrower definition of the exception serves to broaden the application of the removal provision, making Szonyi subject to removal when he might not have been under our previous definition.
We uphold the BIAs interpretation under the principles of Chevron deference that apply when the BIA interprets immigration laws. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We also conclude that the BIA properly applied this interpretation here, and that this application was not impermissibly retroactive. In addition, we uphold the BIAs denial of discretionary relief, acknowledging the limitations on judicial review of discretionary decisions. See 8 U.S.C. § 1252(a)(2)(B)(i). Accordingly, we deny Szonyis petition for review.
I. Background
Szonyi is a citizen of Hungary who was admitted to the United States as a lawful permanent resident in 1957, when he was four years old. In 1981, after a day of heavy drinking, he forced three women to commit sexual acts under threat of violence over a five- to six-hour period. For those acts, Szonyi pled guilty to two counts of oral copulation in violation of California Penal Code § 288a(c) and two counts of sexual penetration with a foreign object in violation of California Penal Code § 289. Based on these offenses, the government commenced removal proceedings against Szonyi in 2005, eventually charging him as removable because he had been convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct under 8 U.S.C. § 1227(a)(2)(A)(ii).
The immigration judge (IJ) sustained that charge. In a written order filed on September 19, 2011, the IJ found Szonyi removable because his predicate crimes involved moral turpitude and did not arise out of a single scheme of criminal misconduct under Ninth Circuit precedent. The IJ also determined that the positive equities in Szonyis case did not offset his adverse criminal history and therefore denied his request for a waiver of inadmissibility and cancellation of removal. The IJ ordered Szonyis removal to Hungary, and Szonyi timely appealed to the BIA.
While Szonyis appeal was pending, the BIA issued a precedential opinion in Matter of Islam , 25 I. & N. Dec. 637 (BIA 2011), which announced that the BIA would apply its preferred interpretation of single scheme of criminal misconduct in all circuits, including those that had previously interpreted that phrase more expansively. Id . at 641. In light of Matter of Islam , the BIA remanded Szonyis appeal to the IJ for analysis under the BIAs single scheme jurisprudence.
On remand, the IJ again found Szonyi removable because his crimes did not arise out of a single scheme under BIA precedent. The IJ also incorporated by reference her earlier decision (1) finding Szonyi removable under the Ninth Circuits standard and (2) denying discretionary relief. The BIA affirmed, finding Szonyi removable under the BIAs interpretation of the single scheme exception. The BIA also agreed with the IJ that Szonyi did not merit discretionary relief.
Szonyi filed a timely petition for review.
II. Removability
Szonyi challenges the BIAs conclusion that he is removable because he has been convicted of 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). Szonyi argues that (1) the BIAs interpretation of the Immigration and Nationality Act (INA) is foreclosed by Ninth Circuit precedent; (2) the BIAs interpretation is unreasonable; (3) even if the BIAs interpretation is permissible, it cannot be applied to him retroactively; and (4) even if the BIAs interpretation is permissible, the BIA misapplied that interpretation to the facts of his case. We are not persuaded by any of these arguments.
1. BIA Interpretation of Single Scheme of Criminal Misconduct
In Matter of Adetiba , 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed its longstanding interpretation of single scheme of criminal misconduct under § 1227(a)(2)(A)(ii), which it said would apply in all circuits except those that had adopted their own more expansive interpretation of the term. Id. at 510. The BIAs interpretation was 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.
Id. at 509. As noted above, the BIA later announced it would apply the Adetiba standard uniformly across all circuits in Matter of Islam , 25 I. & N. Dec. at 641. Szonyi argues that Ninth Circuit precedent forecloses the BIAs interpretation.
As a preliminary matter, the government argues that this court lacks jurisdiction to consider the permissibility of the BIAs interpretation because Szonyi failed to exhaust this argument before the BIA. A petitioners failure to raise an argument before the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue. See Barron v. Ashcroft , 358 F.3d 674, 677-78 (9th Cir. 2004). However, [s]ome issues may be so entirely foreclosed by prior BIA case law that no remedies are available ... as of right with regard to them before IJs and the BIA. Sun v. Ashcroft , 370 F.3d 932, 942 (9th Cir. 2004). Where the agencys position appears already set and recourse to administrative remedies is very likely futile, exhaustion is not required. El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review , 959 F.2d 742, 747 (9th Cir. 1991). Because the BIAs position appeared set based on its precedential opinion in Matter of Islam , 25 I. & N. Dec. 637, Szonyi did not have to exhaust his challenge to the BIAs interpretation, and we have jurisdiction to review his claim.
We review legal questions de novo. Chavez-Garcia v. Sessions , 871 F.3d 991, 995 (9th Cir. 2017). When considering the BIAs interpretation of the INA as set forth in a published BIA opinion, we follow the two-step Chevron framework. Valenzuela Gallardo v. Lynch , 818 F.3d 808, 815 (9th Cir. 2016).
Under Chevron , we first ask whether Congress has directly spoken to the precise question at issue. 467 U.S. at 842, 104 S.Ct. 2778. If Congress has done so, the court must give effect to the unambiguously expressed intent of Congress. Id. at 843, 104 S.Ct. 2778. If Congress has not specifically addressed the question, the court must defer to the agencys interpretation if it is based on a permissible construction of the statute. Id. This is true even if there is contrary circuit precedent, unless the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. Natl Cable &Telecomms. Assn v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Although this circuit previously interpreted single scheme more broadly than the BIA, no circuit precedent forecloses the BIAs interpretation.
Szonyi argues that this court concluded in Wood , 266 F.2d 825, that the BIAs interpretation is incompatible with the language of the statute. In Wood , we rejected the BIAs interpretation as not what the statute says because the BIA applied the statute as if it read single criminal act rather than single scheme of criminal misconduct. 266 F.2d at 830. Our decision also noted, however, that the INA did not itself define the term, and that the legislative history did not shed any light on Congresss intent in drafting the provision. Id. at 828-29. We therefore interpreted the phrase for ourselves.
Subsequent cases have interpreted Wood as establishing this circuits precedent that:
where credible, uncontradicted evidence, which is consistent with the circumstances of the crimes, shows that the two predicate crimes were planned at the same time and executed in accordance with that plan, we must hold that the government has failed in its burden to establish that the conviction did not arise out of a single scheme of criminal misconduct within the meaning of [the INA].
Gonzalez-Sandoval , 910 F.2d at 616. Thus, in contrast to the BIAs approach, our previous interpretation of single scheme of criminal misconduct encompassed distinct crimes that were part of the same overall plan.
Wood was decided before Chevron , so we did not in that decision have reason to apply the Chevron framework and did not specifically comment on the ambiguity of the statutory text under Chevron step one. We did not say, though, that our interpretation follow[ed] from the unambiguous terms of the statute, which would foreclose the agencys approach under Brand X , 545 U.S. at 982, 125 S.Ct. 2688. See Wood , 266 F.2d at 828-29. The Wood decision likewise did not directly address the reasonableness of the BIAs approach under Chevron step two other than to reject it in favor of our courts own interpretation. Id. at 830. Our rationale for the conclusion was our own interpretation of the text, the absence of useful legislative history, and resolution of any interpretive doubt in favor of the alien where deportation might result. Id.
Szonyi also cites two post-Chevron cases that reaffirmed Wood s interpretation of single scheme, but neither case considered the permissibility of the BIAs interpretation. In Gonzalez-Sandoval , we reversed a BIA decision that relied on the First Circuits standard rather than the Wood standard in interpreting single scheme. 910 F.2d at 615. In Leon-Hernandez , we mentioned the standards from Wood and Gonzalez-Sandoval in affirming the BIAs decision without mentioning any different BIA standard. 926 F.2d at 905. In sum, contrary to Szonyis 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 BIAs interpretation after Chevron . See, e.g. , Balogun v. INS , 31 F.3d 8 (1st Cir. 1994) ; Chavez-Alvarez v. Attorney Gen. United States , 850 F.3d 583 (3d Cir. 2017) ; Akindemowo v. INS , 61 F.3d 282 (4th Cir. 1995) ; Iredia v. INS , 981 F.2d 847 (5th Cir. 1993) ; Abdelqadar v. Gonzales , 413 F.3d 668 (7th Cir. 2005) ; Nguyen v. INS , 991 F.2d 621 (10th Cir. 1993).
The Fourth Circuit noted in 1995, when it accepted the BIAs interpretation, that at the time only the Second, Third, and Ninth Circuits did not follow the BIAs interpretation. Akindemowo , 61 F.3d at 286. In 2000, the Second Circuit called into question its contrary pre-Chevron interpretation and effectively appeared to join the circuits following the BIAs interpretation in Michel v. INS , 206 F.3d 253 (2d Cir. 2000). The majority in Michel concluded that it did not need to decide whether the BIAs single scheme interpretation was reasonable under Chevron , but it specifically noted that the precedent in which it had stated its different interpretation of the statute, Nason v. INS , 394 F.2d 223 (2d Cir.1968), was decided before Chevron . It further noted that it had held, in post-Chevron cases, that the BIA is entitled to deference when interpreting other provisions of the Immigration and Nationality Act, as long as those interpretations are reasonable. 206 F.3d at 260. Judge Cabranes wrote separately to argue that the BIA interpretation of the relevant statute was entitled to deference and should be so recognized formally. Id. at 266 (Cabranes, J., concurring). As for the Third Circuit, in 2017 that court join[ed its] fellow Courts in concluding that the BIAs interpretation is reasonable. Chavez-Alvarez , 850 F.3d at 587. We alone remain.
2. Reasonableness of BIA Interpretation
Szonyi further argues that even if the BIAs interpretation is not foreclosed by circuit precedent, it is impermissible based on congressional intent and constitutional avoidance. As noted above, we already determined in Wood that the legislative history did not shed any light on Congresss intent regarding this provision. 266 F.2d at 828-29.
We are also unpersuaded by the arguments raised by Szonyi and amicus that the canon of constitutional avoidance requires a different interpretation. The Supreme Courts recent vagueness jurisprudence is distinguishable from the present case because those cases focused on the abstract nature of the residual clause inquiry. See Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 2557-58, 192 L.Ed.2d 569 (2015) (holding that a provision of the Armed Career Criminal Act was unconstitutionally vague because judicial assessment of risk was tied to a judicially imagined ordinary case of a crime, not to real-world facts or statutory elements and indeterminacy about how to measure the risk posed by a crime [was combined] with indeterminacy about how much risk it takes for the crime to qualify as a violent felony); Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 1216, 200 L.Ed.2d 549 (2018) (striking down a similar provision because it has the same [t]wo features that conspire[d] to make [ACCAs residual clause] unconstitutionally vague (alterations in original) ). Because the single scheme exception is not tied to a judicially-imagined ordinary case and instead relies on a case-specific determination, it does not present the same uncertainty concerns the Supreme Court identified in Johnson and Dimaya .
3. Retroactive Application of the BIA Standard
Szonyi argues that even if the BIA approach is a permissible construction of the statute, the agency cannot retroactively apply that standard in this case. Under our test for retroactivity, we consider:
(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Montgomery Ward & Co. v. FTC , 691 F.2d 1322, 1333 (9th Cir. 1982). Applying this test, we conclude that the BIAs application of its standard to Szonyis case was permissible.
We have recognized that the first factor is not well suited for immigration rulings. Acosta-Olivarria v. Lynch , 799 F.3d 1271, 1275 (9th Cir. 2015). The parties agree that it is irrelevant here.
The second and third factors are intertwined and will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new requirement would not be a complete surprise. Lemus v. Lynch , 842 F.3d 641, 649 (9th Cir. 2016) (quotations omitted). Szonyi notes that at the time he pled guilty, courts in most jurisdictions applied a more expansive interpretation of single scheme of criminal misconduct than the one the BIA adopted in Matter of Islam and applied here. See Matter of Adetiba , 20 I. & N. Dec. at 510. As of then, however, the BIA itself had consistently applied its own narrower approach. It was not until 1992, a decade after Szonyi pled guilty, that the BIA announced that it would only apply its interpretation outside circuits, like the Ninth Circuit, that had adopted a more expansive interpretation. Id. at 511. Thus, at the time Szonyi pled guilty, it could reasonably have been anticipated that the BIA would apply its own interpretation. On balance, the second and third factors favor the government.
In immigration cases, we have held that the fourth factor favors non-retroactive application because deportation is unquestionably a substantial burden. Martinez-Cedillo v. Sessions , 896 F.3d 979, 994 (2018). The government argues Szonyi would be removable even under the Ninth Circuits single-scheme jurisprudence. But there is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. I.N.S. v. St. Cyr , 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Therefore, to the extent there was any uncertainty about Szonyis removability under the Ninth Circuit standard but no such ambiguity under the BIA standard, the fourth factor favors Szonyi.
The fifth factor generally favors the government because non-retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established. Garfias-Rodriguez v. Holder , 702 F.3d 504, 523 (9th Cir. 2012).
In sum, the second, third, and fifth factors favor retroactive application of the BIA interpretation, while the fourth factor favors Szonyi. On balance, we conclude that the retroactive application of the BIAs interpretation was not improper. See Martinez-Cedillo , 896 F.3d at 994 (holding retroactive application permissible based on the same balance of factors).
4. The BIAs Application of Its Standard
Szonyi further argues that even under BIA precedent he should not be removable. The BIA did not directly address the cases Szonyi has cited to us, probably because Szonyi did not raise them before the BIA, but it is not hard to infer the distinctions that the BIA presumably would have drawn. We conclude that the BIAs analysis was consistent with its precedent.
The BIA started its analysis by citing the interpretation of the relevant language set out in Matter of Adetiba , 20 I. & N. Dec. at 509-11. It then agreed with the IJs finding that Szonyis offenses against multiple victims over the course of six hours did not fall within a single scheme because, quoting from the IJs decision, the acts, though similar in character, [were] distinct, because the commission of one can occur without the commission of the other. The BIA also noted that the crimes did not constitute lesser included offenses of another crime and were not a natural consequence of a single act of criminal misconduct. While the BIA noted that Szonyis convictions covered conduct occurring on the same day in the same location, it observed that 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. Id .
The BIAs conclusion was consistent with its statement in Matter of Adetiba that its prior cases had treated single scheme as 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. 20 I. & N. Dec. at 509-10. The dissent concludes we cannot discern whether or how the BIA applied this standard. However, the BIA explicitly concluded that [a]fter the abuse of any one victim, the respondent had the opportunity to cease his activities and reflect on what he had done. The dissent finds it significant that the BIA did not say there was a substantial interruption between the crimes, but the BIA has qualified that term as one that would allow the respondent to reflect on what he has done. Matter of Adetiba , 20 I & N. Dec. at 509-10. The BIA found that Szonyi had such an opportunity here, and [t]he BIAs factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. Villavicencio v. Sessions , 904 F.3d 658, 663-64 (9th Cir. 2018). We do not read the record as compelling 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.
Szonyi argues that the BIA previously interpreted single scheme to include all crimes performed in furtherance of a single criminal episode. He contends that all of his acts were in furtherance of a single criminal episode that began when he pulled out a gun and continued for the next six hours as he performed nonconsensual sexual acts with multiple women. In quoting from BIA precedent, however, Szonyi omits the remainder of the relevant sentences, which clarify the meaning of single criminal episode. Both Matter of Islam and Matter of Adetiba define single scheme as acts performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. See Matter of Islam , 25 I. & N. Dec. at 639 ; Matter of Adetiba , 20 I. & N. Dec. at 511. The BIA applied that standard here, describing single criminal episode as including where one crime is a lesser included offense of another or two crimes flow from and are the natural consequence of a single act of criminal misconduct.
Szonyi also argues that the BIAs conclusion in this case is at odds with the discussion in other precedential BIA cases of what constitutes a single scheme, including convictions for indecent fondling of two minors in the same room at the same time, see Matter of Z- , 8 I. & N. Dec. 170, 175 (BIA 1958) ; situations where A, B, & C are robbed by the alien at the same time, see Matter of B- , 8 I. & N. Dec. 236, 239 (BIA 1958) ; and convictions for assault with intent to do great bodily harm and manslaughter where the alien (1) pushed his mother-in-law down the stairs, then a few minutes later (2) stabbed his wife with a knife, Matter of Pataki , 15 I. & N. Dec. 324, 326 (BIA 1975). Szonyi argues that in light of these decisions, the BIA erred in treating as irrelevant the fact that Szonyis convictions covered conduct occurring on the same day.
The BIA had previously made clear that the fact that multiple crimes occurred on the same day did not mean that they were necessarily part of a single scheme. See, e.g. , Matter of D- , 5 I. & N. Dec. 728, 729 (BIA 1954) (The fact that one [crime] may follow the other closely, even immediately, in point of time is of no moment.). The cases Szonyi cited to us were all distinguishable based on their facts. For example, in Matter of Pataki , the BIA concluded that convictions for assault and manslaughter against separate victims constituted a single scheme because they were committed within a few minutes of each other as the result of the same criminal impulse in the course of the same episode. 15 I. & N. Dec. at 325-26. As the Board described, the crimes occurred when, in a rage, the [alien] 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. Id . at 326. That two crimes committed within a few minutes of each other as part of one rage were held to fall within the same scheme does not mean that sexual crimes committed over a span of six hours against separate victims necessarily fell within a single scheme. Similarly, while both Matter of Z- , 8 I. & N. Dec. at 175, and Matter of B- , 8 I. & N. Dec. at 239, described acts occurring at the same time or one time, the time period was not more specifically defined in either case. The BIA could have reasonably concluded those episodes were distinguishable from crimes committed over six hours.
Although the BIA did not specifically distinguish Szonyis case from these other decisions, it is understandable that it did not do so where Szonyi failed to argue before the BIA that his case was comparable to those cases or to any of its precedents. The dissent concludes that Szonyis brief to the BIA clearly placed the issue of substantial interruption before the BIA by citing Matter of Adetiba and Matter of Islam , but the BIA also directly followed the tests laid out in those opinions to conclude that Szonyis acts did not fall within a single scheme. The BIA should not be faulted for not distinguishing additional cases that Szonyi did not raise before the agency when he had the opportunity.
III. Discretionary Relief
Szonyi applied for two forms of discretionary relief: waiver of inadmissibility under former section 212(c) of the INA, 8 U.S.C. § 1182(c), and cancellation of removal under 8 U.S.C. § 1229b(a). This court lacks jurisdiction to review the merits of a discretionary decision to deny cancellation of removal, but it does have jurisdiction to review whether the IJ considered relevant evidence in making this decision. Vilchez v. Holder , 682 F.3d 1195, 1198 (9th Cir. 2012). [T]he BIA abuses its discretion when it fails to consider all favorable and unfavorable factors bearing on a petitioners application for § 212(c) relief. Zheng v. Holder , 644 F.3d 829, 833 (9th Cir. 2011).
Szonyi argues that the BIA failed to consider all favorable and unfavorable factors bearing on his eligibility for waiver of inadmissibility and cancellation of removal. In making this argument, Szonyi only looks to the BIAs reasoning, arguing that this courts review is limited to the BIA decision because the BIA conducted de novo review of the IJs decision. Szonyi is correct that when the BIA reviews questions of discretion de novo under 8 C.F.R § 1003.1(d)(3)(ii), this courts review is limited to the BIAs decision, except to the extent that the BIA expressly adopted the IJs decision. Vilchez , 682 F.3d at 1199.
Here, the BIA announced it was conducting de novo review but also acknowledged that the Immigration Judge adequately and correctly considered and addressed the respondents equities and the adverse factors contained in the record. We may look to the IJs decision when the BIA incorporates parts of the IJs reasoning as its own. Aguilar-Ramos v. Holder , 594 F.3d 701, 704 (9th Cir. 2010). This court has also reviewed the IJs decision, and the BIAs opinion appeared to adopt the IJs decision by giving examples from it. See Morgan v. Mukasey , 529 F.3d 1202, 1206 (9th Cir. 2008). The IJ expressly considered in her first decision and explicitly incorporated into her second decision the positive equities Szonyi claims the BIA erroneously failed to consider.
Even if the IJs opinion were disregarded, this court generally presumes that the BIA thoroughly considers all relevant evidence in the record. Larita-Martinez v. INS , 220 F.3d 1092, 1095-96 (9th Cir. 2000) ; see also Cole v. Holder , 659 F.3d 762, 771 (9th Cir. 2011) (When nothing in the record or the BIAs decision indicates a failure to consider all the evidence, a general statement that [the agency] considered all the evidence before [it] may be sufficient. (citation omitted, alterations in original) ). Here, the BIA generally recognized positive equities in [Szonyis] favor and specifically recognized that these included his lengthy residence in the country, military service, steady employment, payment of taxes, charitable work, citizen sister, and various physical disabilities that require medical treatment. Given the general presumption that the BIA considered all relevant factors, the BIA did not abuse its discretion in denying relief.
IV. Conclusion
The petition for review is denied.
PETITION FOR REVIEW DENIED.