Abdelqadar v. Gonzales

• Citation: 413 F.3d 668
• Decision Date: 01 July 2005
• Docket Number: No. 04-3027.,04-3027.
• Parties: Mlaith ABDELQADAR, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

413 F.3d 668

Mlaith ABDELQADAR, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-3027.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2005.

Decided July 1, 2005.

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

Karen Lundgren, Dept. of Homeland Security Office of District Counsel, Chicago, IL, Jonathan F. Potter (argued), Dept. of Justice Civ. Div., Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Mlaith Abdelqadar, a citizen of Jordan, has been ordered removed from the United States following his conviction for purchasing food stamps from welfare recipients. Food stamps—in Illinois, "WIC stamps" issued under the state's program for women, infants, and children—may be used only to secure designated goods, such as bread and milk. Replacing the stamps with cash enables recipients to buy goods they prefer to the state's list. Economists may approve; Illinois does not. Intermediaries in this black-market trade buy at a discount and make a profit by turning the stamps in at face value (or selling them to crooked grocers, who redeem them with the state). Fraud is a necessary component of the scheme; unless the purchaser deceives the state about how he acquired the stamps, it will not reimburse the holder. Immigration officials treated the offense of which Abdelqadar has been convicted, 720 ILCS 5/17B-5, as a species of fraud, and because crimes of deceit are the classic exemplars of moral turpitude, see Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951), the immigration judge and Board of Immigration Appeals concluded that he is removable under 8 U.S.C. § 1227(a)(2)(A)(i) and (ii).

Section 1227(a)(2)(A)(i) provides:

Any alien who (I) is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Subsection (ii) adds:

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.

Abdelqadar has been convicted of violating 720 ILCS 5/17B-5 twice, but he contends that these represent a single "scheme of misconduct" and that subsection (i) therefore provides the only ground of removal. Although Illinois authorizes a sentence of one year or longer for this offense, Abdelqadar insists that the statute does not define a "crime of moral turpitude." Moreover, he contends that his conviction came more than five years after the date of his admission to the United States. Logically the first question is whether the crime of which he has been convicted is one of "moral turpitude", for if it is not then neither subsection (i) nor subsection (ii) authorizes removal.

We start with that issue, which like the others is strictly legal and thus within the jurisdiction granted by 8 U.S.C. § 1252, as amended by § 106 of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, 310-11. Abdelqadar failed to exhaust his administrative remedies on this subject when he omitted from his arguments to the Board any contention that violations of 720 ILCS 5/17B-5 are not crimes of moral turpitude, but the agency forfeited the benefit of this omission by briefing the issue on the merits without observing that Abdelqadar had failed to present his contentions to the Board. The agency's assertion at oral argument that failure to preserve an issue deprives us of subject-matter jurisdiction, so that we must ignore the agency's own forfeiture, lacks any visible means of support. Our jurisdiction is supplied by the alien's timely petition for review of the agency's final decision. Courts have jurisdiction over cases and controversies, not particular legal issues that affect the outcome. We cannot imagine any reason why an agency should be forbidden, on jurisdictional grounds, to excuse an alien's failure to exhaust a particular issue. See Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (a final decision by the agency is essential to jurisdiction, but failure to exhaust particular issues may be waived by the agency); Weinberger v. Salfi, 422 U.S. 749, 766-67, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (same).

Neither § 1227 nor any other provision of the immigration laws defines "crime of moral turpitude," so the agency has some latitude in supplying a definition. See INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Gattem v. Gonzales, 412 F.3d 758, ___ (7th Cir.2005), slip op. 7-10. As in Wei Cong Mei v. Ashcroft, 393 F.3d 737 (7th Cir.2004), we need not pin down just how much leeway the agency possesses, because the Board's approach does not come near the outer bounds. Crimes entailing deceit or false statement are within the core of the common-law understanding of "moral turpitude." Any purchase of food stamps for cash entails misrepresentation to the state about how the holder came by the stamps. Nothing else makes this economic crime profitable.

The best one can say for Abdelqadar's position is that the statute does not include fraud as an element. Here is the text of § 5/17B-5:

A person who knowingly (i) uses, acquires, possesses, or transfers Illinois Department of Public Health or Department of Human Services Special Supplemental Food Program for Women, Infants and Children (WIC) Food Instruments or authorizations to participate in the Illinois Department of Public Health or Department of Human Services Special Supplemental Food Program for Women, Infants and Children (WIC) in any manner not authorized by law or the rules of the Illinois Department of Public Health or Department of Human Services or (ii) alters, uses, acquires, possesses, or transfers altered Illinois Department of Public Health or Department of Human Services Special Supplemental Food Program for Women, Infants and Children (WIC) Food Instruments or authorizations to participate in the Illinois Department of Public Health or Department of Human Services Special Supplemental Food Program for Women, Infants and Children (WIC) is guilty of a violation of this Article and shall be punished as provided in Section 17B-20.

A welfare recipient could violate this statute by knowingly using food stamps to buy liquor from a dishonest merchant, because this would be a "manner not authorized by law or the rules", without making any misrepresentation (though the merchant would do so later to redeem the stamps for cash). An "aggravated felony"—a ground for removal given in § 1227(a)(2)(A)(iii)—usually must be identified based on the elements of the offense rather then the acts that the alien committed. See, e.g., Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); Flores v. Ashcroft, 350 F.3d 666 (7th Cir.2003). If that is so of "aggravated felony" under subsection (iii), why not of "crime of moral turpitude" under subsections (i) and (ii)?

One answer is that "aggravated felony" is a defined term, while "crime of moral turpitude" is not. Section 1101(a)(43) defines "aggravated felony" at great length, and many parts of the definition point to precise locations in the criminal code. For example, § 1101(a)(43)(F) says that the term "aggravated felony" includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year". Section 16(a) in turn uses the elements of the offense to specify a crime of violence. The Supreme Court held in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and reiterated in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), that, when applying a similar provision in 18 U.S.C. § 924(e), a court should look no farther than the elements of the offense and the charging papers. That approach led to Leocal, where removal depended on the meaning of § 16. "Crime of moral turpitude" lacks any limit comparable to § 16, and in Wei Cong Mei we asked whether it was an apt description of the deeds the alien had committed (driving more than 100 miles per hour to escape apprehension, endangering bystanders in the process). Likewise the reference to "sexual abuse of a minor" in § 1101(a)(43)(A), a form of aggravated felony that is not defined elsewhere in the immigration law, allows the agency some discretion to look at what actually happened, as we held in Gattem. It is the language of § 16 (and some other provisions to which § 1101(a)(43) refers), and not anything in § 1227(a)(2)(A), that limits some inquiries to statutory elements.

A second answer is that even under Taylor's approach—which we applied uncritically to "crime of moral turpitude" in Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2004), without considering either Wei Cong Mei or the role of § 16 has played in defining "aggravated felony"—it is permissible to look at the charging papers and admissions made as part of a guilty plea. Taylor recognized that many states lump into one statute offenses with different consequences under federal law. Federal law treats burglary of a dwelling as a crime of violence because of the risk that the intruder may encounter the householder. Entry of a railroad car does not pose the same risk and is not a "crime of violence" for federal purposes. But many states define "burglary" as surreptitious entry of any structure (not just a dwelling) with intent to commit a crime inside. That led the Supreme Court to allow a peek at the indictment and equivalent documents to see which component of the state offense the...