Hashish v. Gonzales, 05-2266.

• Decision Date: 24 March 2006
• Docket Number: No. 05-2266.,05-2266.
• Parties: Mohammad Abu HASHISH, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 572

442 F.3d 572

Mohammad Abu HASHISH, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2266.

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2006.

Decided March 24, 2006.

Justin R. Burton (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Virginia M. Lum, Blair T. O'Connor (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Petitioner Mohammad Abu Hashish seeks review of an adverse decision of the Board of Immigration Appeals (the "BIA" or "Board") that denied his request for cancellation of removal and voluntary departure. For the reasons set forth in the following opinion, we affirm the decision of the BIA and dismiss the petition.

I BACKGROUND

A. Facts

Mr. Abu Hashish is a Jordanian who originally was admitted to the United States on February 5, 1990, on a visitor's visa. Upon entering this country, Mr. Abu Hashish first worked as a stock boy, and then as a street vendor. In 1992, Mr. Abu Hashish began distributing candy to grocery stores. From 1994 to 2000, he owned and operated two different stores.

In November 1992, Mr. Abu Hashish pleaded guilty to theft of a recordable sound in violation of Illinois Criminal Code 38-16-1, see 720 ILCS 5/16-1;¹ he was sentenced to one year probation and was required to pay restitution. A.R. 271-72. In 1999, Mr. Abu Hashish again was charged with theft, specifically obtaining or exerting unauthorized control over the property of another, in violation of 720 ILCS 5/16-1(A)(1); on December 16, 2002, he pleaded guilty to this misdemeanor charge. Mr. Abu Hashish was given a "conditional discharge sentence" of two years and was required to pay restitution in the amount of $2,150. A.R. 269.

B. Administrative Proceedings

In June 2000, the former Immigration and Naturalization Service ("INS") issued Mr. Abu Hashish a notice to appear. At an April 20, 2001 hearing before an Immigration Judge ("IJ"), Mr. Abu Hashish conceded removability but sought cancellation of removal. See 8 U.S.C. § 1229b. A hearing on his claim for relief was continued several times to allow counsel for Mr. Abu Hashish and for the Government to obtain documentation regarding the disposition of criminal charges against him. The IJ also suggested that Mr. Abu Hashish's counsel explore other avenues of relief should Mr. Abu Hashish's convictions render him statutorily ineligible for cancellation of removal. At a subsequent hearing, the IJ confirmed his receipt of a brief filed by Mr. Abu Hashish, which continued to assert his eligibility for cancellation of removal, as well as of other documents from the parties concerning Mr. Abu Hashish's convictions.

In a decision issued on April 22, 2004, the IJ determined that both Mr. Abu Hashish's 1992 and 2002 theft convictions constituted crimes of moral turpitude. Mr. Abu Hashish, therefore, was statutorily ineligible for cancellation of removal. The IJ also determined that, in light of these crimes, Mr. Abu Hashish had not established good moral character for the requisite number of years necessary to qualify for a grant of voluntary departure. See 8 U.S.C. § 1229c. Mr. Abu Hashish appealed to the BIA.

In a written opinion dated April 23, 2005, the BIA affirmed the IJ's decision. The BIA rejected Mr. Abu Hashish's argument that the IJ should have conducted "an inquiry into the nature of the respondent's theft convictions to determine whether such convictions in fact constitute crimes involving moral turpitude." A.R. 3. The BIA stated that "[i]t is well settled that theft, regardless of the sentenced [sic] imposed or the amount stolen, is a crime involving moral turpitude." Id. Furthermore, because both of Mr. Abu Hashish's crimes fell into this category, he could not invoke the exception available for individuals who had committed only one "petty offense" as defined by statute. See id. (citing 8 U.S.C. § 1182(a)(2)(A)(ii)(II)). Finally, the BIA stated that, "in light of the respondent's most recent theft conviction, the Immigration Judge properly found that the respondent failed to establish his eligibility for voluntary departure." Id.

II ANALYSIS

A. Jurisdiction

Generally speaking, this court has jurisdiction to review final orders of removal under 8 U.S.C. § 1252. However, this court does not have jurisdiction to review the discretionary decision of the Attorney General to grant (or deny) cancellation of removal or voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(I). Despite this prohibition, we do have jurisdiction to review nondiscretionary determinations relating to an alien's eligibility for relief. See, e.g., Morales-Morales v. Ashcroft, 384 F.3d 418, 421-23 (7th Cir.2004) (holding that the meaning of the term continuous physical presence for purposes of cancellation of removal is a nondiscretionary question of statutory interpretation). We also may review constitutional questions and questions of law raised in a petition for review of a final removal order. See 8 U.S.C. § 1252(a)(2)(D). Because Mr. Abu Hashish's claims with respect to both cancellation of removal and voluntary departure raise questions of law, we have jurisdiction to review those claims.

B. Cancellation of Removal

1.

Mr. Abu Hashish argues that the BIA erred when it deemed his theft convictions "crimes of moral turpitude," which rendered him ineligible for cancellation of removal. Before evaluating Mr. Abu Hashish's specific claims, we turn briefly to the statutory requirements for cancellation of removal. See id. § 1229b(b)(1). Section 1229b(b)(1) provides:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2) [crimes of moral turpitude or drug-related crimes], 1227(a)(2), or 1227(a)(3) of this title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Section 1229b goes on to state that any period of physical presence shall be deemed to end when the "alien has committed an offense referred to in section 1182(a)(2)"—a crime of moral turpitude or a drug-related offense. Id. § 1229b(d)(1). With these standards in mind, we turn to Mr. Abu Hashish's claims on appeal.

2.

On the issue of whether his crimes constitute crimes of moral turpitude,² Mr. Abu Hashish submits that the Board should have looked beyond the crimes charged to his underlying conduct to determine whether his crimes fall within this category. Mr. Abu Hashish analogizes his first conviction—for theft of a recordable sound—to downloading music over the internet. This type of activity, Mr. Abu Hashish maintains, does not arouse indignation in the general populace and, therefore, should not be considered a crime of moral turpitude. With respect to his second conviction, receiving stolen property, Mr. Abu Hashish suggests that, because a defendant could be convicted for this crime absent actual knowledge that the property was stolen, it does not entail the moral culpability usually associated with crimes of moral turpitude.

We believe that Mr. Abu Hashish's arguments ignore the framework that we have established for analyzing whether a crime is one of moral turpitude for purposes of the immigration laws. We recently restated that framework in Padilla v. Gonzales, 397 F.3d 1016 (7th Cir.2005):

In determining whether a crime involves moral turpitude, we employ a "categorical" approach; that is, we determine whether a given crime necessarily involves moral turpitude by examining only the elements of the statute under which the alien was convicted and the record of conviction, not the circumstances surrounding the particular transgression. This practice is intended to promote uniformity and avoid the oppressive administrative burden of scrutinizing the specific conduct giving rise to criminal offenses.

Id. at 1019 (internal citations and quotation marks omitted). Other circuits follow the same approach. See Vuksanovic v. United States Attorney General, 439 F.3d 1308, 1309 (11th Cir.2006) ("[T]he determination that a crime involves moral turpitude is made categorically based on the statutory definition or nature of the crime, not the specific conduct predicating a particular conviction."); Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005) (using a categorical approach to determine whether a crime constitutes moral turpitude); Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir.2005) (stating that, in determining whether a crime is a crime of moral turpitude, "we look to the statutory crime definition as interpreted by the state's courts, without regard to the particular circumstances surrounding the specific offender's violation"); Partyka v. Attorney Gen. of the United States, 417 F.3d 408, 411 (3d Cir.2005) ("Whether an alien's crime involves moral turpitude is determined by the criminal statute and the record of conviction, not the alien's conduct."); Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001) ("[W]e have long endorsed categorical analyses of criminal statutes in the context of deportation orders for crimes of moral turpitude."). This court, and other courts of appeals, repeatedly have held that "theft" is a...