Lagunas-Salgado v. Holder

• Decision Date: 13 October 2009
• Docket Number: No. 08-1452.,No. 07-3396.,07-3396.,08-1452.
• Parties: Jesus LAGUNAS-SALGADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

584 F.3d 707

Jesus LAGUNAS-SALGADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 07-3396.

No. 08-1452.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 2009.

Decided October 13, 2009.

Royal F. Berg, Attorney (argued), Chicago, IL, for Petitioner.

James A. Hurley, Attorney, Karen Y. Stewart, Paul T. Cygnarowicz (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The Board of Immigration Appeals and this court have long considered crimes with fraud as an element to be crimes involving moral turpitude. Jesus Lagunas-Salgado was convicted of fraud in connection with identification documents, but he maintains his crime was not one of moral turpitude because he did not defraud the customers who bought false documents from him (they knew they were getting false documents, after all), he made the false Social Security and alien registration cards so that others could find employment, and he was not convicted of presenting the fake papers for use himself. No matter his motives, Lagunas-Salgado still engaged in a crime that involves inherently deceptive conduct as he was convicted of selling fraudulent official documents to other persons. The BIA therefore reasonably determined that he had been convicted of a crime of moral turpitude. We also find no merit in the other challenges he raises, so we deny the petition for review.

I. BACKGROUND

Jesus Lagunas-Salgado, a Mexican native and citizen, first entered the United States in 1977. He received United States permanent resident status in 1990. He and his wife, also a lawful permanent resident, have three children. Ten years after receiving permanent resident status, Lagunas-Salgado was convicted in federal court of fraud in connection with identification documents in violation of 18 U.S.C. § 1028(a)(2). He received a sentence of five months' imprisonment and two years' probation. In 2003, three years after his conviction, Lagunas-Salgado took a trip to Mexico, and, when he returned, presented himself for inspection to the United States Department of Homeland Security. Early the next year, DHS initiated removal proceedings against him by filing a Notice to Appear that charged he was inadmissible as an alien convicted of a crime of moral turpitude.

At a hearing before an immigration judge in December 2005, Lagunas-Salgado denied that he was inadmissible. DHS then introduced a certified copy of the criminal complaint, judgment of conviction, and waiver of indictment related to his conviction for fraud in connection with identification documents. When Lagunas-Salgado's counsel said he had not had an opportunity to review the documents, the immigration judge continued the case until the afternoon session. At that session, Lagunas-Salgado's counsel objected to the introduction of the documents on the ground that he had not had ten days to examine them, as he contended local court rules required, and also because he had not had an opportunity to question the DHS agent whose affidavit supported the criminal complaint. The immigration judge admitted the documents after concluding they were certified documents of a United States district court, they were necessary to determine removability, and that Lagunas-Salgado had not provided any basis to question the truthfulness of the documents. The judge then concluded the documents were sufficient to establish that Lagunas-Salgado had been convicted of a crime involving moral turpitude.

Lagunas-Salgado expressed an intent to apply for a waiver of inadmissibility and cancellation of removal, and the judge set deadlines and scheduled a hearing for February 1, 2006. At the hearing, Lagunas-Salgado asked for a continuance because his fingerprint check results had not yet returned. The judge declined, saying a final ruling could be postponed pending those results if he were inclined to grant relief.

A merits hearing then took place. Lagunas-Salgado testified that he had been convicted in 2000 after he sold fraudulent alien registration cards ("green cards") and Social Security cards. He testified that his brother made false documents in Lagunas-Salgado's basement before his brother's death in October 1996. Then, Lagunas-Salgado explained: "After my brother died, he left some stuff in there. So I just went through because people will come to look for him to make some of the false papers. So I start doing it, but not for the money, more to help the people—to help people." On cross examination, he acknowledged that while sometimes he did not charge for the papers, he at other times charged anywhere from $20 to $100 for the false documents. He also acknowledged that he had made documents for approximately 50 people before his arrest. He testified that he now realized what he had done was wrong and that he would not do it again.

Several of Lagunas-Salgado's family members also testified at the hearing. His wife, two of his sons, and the girlfriend of a third son testified that he was a good person who played a critical role in supporting his family, including the children of a son who had been deported to Mexico.

The immigration judge found Lagunas-Salgado removable as charged and denied his requests for cancellation of removal and waiver of inadmissibility. The judge concluded that the factors in Lagunas-Salgado's favor, including his employment history, family ties, and length of permanent residence, did not outweigh the length of time he had been involved in criminal activity and the number of documents he had fraudulently produced and sold. With respect to the waiver request, the judge ruled that Lagunas-Salgado had not established that his removal would result in extreme hardship to a United States citizen or lawful permanent resident spouse, parent, or child.

Lagunas-Salgado appealed to the BIA. The BIA rejected his arguments, including his argument that his conviction for fraud with identification documents was not a crime involving moral turpitude. The BIA also denied his subsequent motion for reconsideration. Lagunas-Salgado now petitions our court for review.

II. ANALYSIS

A. Crime Involving Moral Turpitude

Lagunas-Salgado's primary challenge is to the determination that his prior conviction was one "involving moral turpitude." A conviction for a crime involving moral turpitude with a maximum penalty exceeding one year's imprisonment renders an alien inadmissible under 8 U.S.C. § 1182(a)(2)(A). Whether an alien's conviction is properly classified as a crime of moral turpitude is a question of law, so we may review it. 8 U.S.C. § 1252(a)(2)(D); Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2853, 174 L.Ed.2d 551 (2009).

The United States Code does not define "moral turpitude." And although several Justices on the Supreme Court thought the phrase unconstitutionally vague, the Court nonetheless rejected a vagueness challenge to the term. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). So we do the same to Lagunas-Salgado's vagueness challenge to the statute here, as we have on similar occasions in the past. See, e.g., Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir.2008).

The BIA has described a crime of moral turpitude as including "conduct that shocks the public conscience as being `inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'" In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (quoting Matter of Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999)). The inquiry is a question "of the offender's evil intent or corruption of the mind." Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). Under that standard, the BIA has concluded that petty larceny and issuing a worthless check involve moral turpitude. Id. at 582 (collecting cases). On the other hand, crimes such as importing, selling, or possessing drugs do not involve moral turpitude because evil intent is not an element of the offense. Id.; see also Garcia-Meza, 516 F.3d at 538 (aggravated battery of a police officer under Illinois law not necessarily a crime involving moral turpitude). We have described the inquiry as one into whether the act is "ethically wrong without any need for legal prohibition (acts wrong in themselves, or malum in se)" or only "ethically neutral and forbidden only by positive enactment (acts wrong because they are so decreed, or malum prohibitum)." Ali, 521 F.3d at 740.

Although whether a crime is one involving moral turpitude is a question of law, that does not mean our review in this case is de novo. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court held that when a court reviews an agency's construction of a statute it administers and Congress has not directly spoken on the precise question at issue, the proper question for the court to ask is whether the agency's answer is based on a permissible construction of the statute. 467 U.S. at 843, 104 S.Ct. 2778. We held last year that a formally adjudicated BIA determination that a conviction was for a crime of moral turpitude is entitled to Chevron deference. Ali, 521 F.3d at 739. Even though only a single member of the BIA decided Lagunas-Salgado's appeal, Ali instructs that the decision is still entitled to deference if it was based on BIA precedent from multi-member panels. Ali, 521 F.3d at 739.

It was. The statute governing Lagunas-Salgado's conviction, 18 U.S.C. § 1028 (2000), was entitled "Fraud and related activity in connection with identification documents and information." Subsection (a)(2), to which he pled, made it a crime when a person "knowingly transfers an identification document or a false identification document knowing that such document was...