Abdelqadar, Mlaith v. Gonzales, Albert R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3027
MLAITH ABDELQADAR,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
____________
ARGUED MAY 31, 2005—DECIDED JULY 1, 2005
____________
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 desig-
nated 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
2 No. 04-3027
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 (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
No. 04-3027 3
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 conten-
tions 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 jurisdic-
tion 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 (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 (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 (1999); INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987); Gattem v. Gonzales,
No. 04-2102 (7th Cir. June 20, 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 pos-
sesses, because the Board’s approach does not come near
4 No. 04-3027
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, pos-
sesses, 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 authoriza-
tions 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 De-
partment 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 authoriza-
tions 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
No. 04-3027 5
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, 125 S. Ct. 377(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 “ag-
gravated 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 (1990), and
reiterated in Shepard v. United States, 125 S. Ct. 1254(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.
6 No. 04-3027
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 permis-
sible 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
conviction entails. See Shepard, 125 S. Ct. at 1257. The goal
is to determine what the accused was convicted of, not what
he did in fact, so the scope of inquiry is correspondingly
limited. See United States v. Lewis, 405 F.3d 511, 515 (7th
Cir. 2005). It does not exceed that limit, however, to learn
from the charging papers and Abdelqadar’s admissions
when pleading guilty that he purchased the food stamps for
cash and arranged to deceive the State of Illinois about the
stamps’ provenance so that he could make a profit. That
concession puts his conviction on the “crime of moral
turpitude” side of any divide.
Next in line is the question whether Abdelqadar was con-
victed “within five years . . . after [his] date of admission”.
The word “admission” has a definition in §1101(a)(13)(A):
“the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.”
That date, for Abdelqadar, is March 15, 1991, when he en-
tered the United States on a visa. He was not convicted
until August 17, 1999, more than eight years later, though
No. 04-3027 7
his crimes were committed in September and October 1997.
The parties agree that the date of the offense, and not the
date of conviction, is the one that matters for purposes of
§1227(a)(2)(A)(i); we need not decide whether that is cor-
rect. Still, September 1997 is more than six years after
Abdelqadar arrived in the United States. Immigration
officials used a date about 21 months after his physical en-
try: December 22, 1992, when Abdelqadar’s status was
adjusted to that of lawful permanent resident. His offense
was committed a little less than five years later.
Abdelqadar accuses the agency of engaging in word play
by equating “admitted for permanent residence” with “the
date of admission.” The former is a legal status, the latter
an entry into the United States. Section 1101(a)(13)(A)
defines admission as a lawful entry, not as a particular
legal status afterward. See Succar v. Ashcroft, 394 F.3d 8,
14 (1st Cir. 2005); Matter of Rainford, 20 I&N Dec. 598, 601
(1992).
Yet things are not quite this simple. The Board of Immi-
gration Appeals relied on Matter of Rosas-Ramirez, 22 I&N
Dec. 616 (1999) (en banc), which posed the question what
the word “admission” means in §1227(a)(2)(A)(iii), which
says that “[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable.” Section
1101(a)(13)(A) defines admission as a “lawful entry,” but
Rosas-Ramirez entered the United States unlawfully, by
stealth, before committing his aggravated felony, and he
contended that because he had entered illegally he could
not be removed under this provision. The Board found that
too much to swallow; why should illegal entrants enjoy
rights superior to those of lawful immigrants? Until
amendments in 1996, the word “entry” had been used in
passages such as that of §1227(a)(2)(A)(iii). That word was
changed across the board in 1996 to “admit” or “admis-
sion”—but without a corresponding adjustment to the
definitional clause.
8 No. 04-3027
To make the word “admit” (and its variations) work in all
of the places to which it had been added by the 1996
amendments, the Board decided to treat §1101 as if it be-
gan—as many definitional provisions in the United States
Code do—with the phrase “unless the context otherwise
requires.” Context clauses reflect the fact that definitions
rarely work universally, and that one word can have differ-
ent connotations in different constructions. See Rowland v.
California Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194 (1993). Whether judges could engage in such
repair work is doubtful, see Lamie v. United States Trustee,
540 U.S. 526, 542 (2004) (“It is beyond our province to
rescue Congress from its drafting errors, and to provide for
what we might think . . . is the preferred result”)—after all,
§1101 does not have a context clause—but agencies charged
with superintending a comprehensive scheme traditionally
have been afforded additional latitude. See, e.g., Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984); United States v. Mead Corp., 533 U.S. 218(2001). So in Rosas-Ramirez the Board held that the word
“admission” in §1227(a)(2)(A)(iii) would be deemed to
include an adjustment of status that put the illegal entrant
on a lawful footing; by seeking and obtaining post- entry
relief, the alien had engaged in a process analogous (though
obviously not identical) to presenting oneself for inspection
at the border.
To accept the way Rosas-Ramirez read “admission” in
§1227(a)(2)(A)(iii) is not, however, to imply that the word
must have the same meaning in §1227(a)(2)(A)(i). In
this case the Board cited Rosas-Ramirez as if it established
a new meaning for “admission” everywhere in the
Immigration and Nationality Act, and it applied that
meaning so that Abdelqadar had been admitted twice: once
in 1991 when he entered on a visa after inspection at the
border, and again in 1992 when his legal status changed to
permanent resident. Yet the whole point of contextual
No. 04-3027 9
reading is that context matters—and the context of the
word “admission” in §1227(a)(2)(A)(i) differs substantially
from its context in §1227(a)(2)(A)(iii).
Section 1227(a)(2)(A)(iii) uses “admission” to distinguish
between crimes committed in the United States and those
committed abroad. An aggravated felony after the alien’s
entry is a ground of removal, while discovery that the alien
had committed a felony in his home country would not be a
ground of removal. By contrast, “admission” in §1227(a)(2)
(A)(i) starts a clock. A provision such as §1227(a)(2)(A)(i)
ensures that people who turn to crime soon after their
arrival are ejected. (Five years is “soon” in governmental
parlance and reflects the fact that initial offenses may not
be detected, or a wrongdoer may receive diversionary dis-
positions before finally being convicted.) Quickly turning to
crime can be revealing about character, if not about the real
reason for coming to the United States. This is parallel to
the provision in 8 U.S.C. §1612 that new arrivals do not
qualify for public assistance. Both the criminal-removal and
the welfare-disqualification approaches suppose that the
clock runs from physical entry, not from a change in legal
status after arrival.
The Board not only borrowed the approach of Rosas-
Ramirez without regard to the different function “admis-
sion” serves in §1227(a)(2)(A)(i) but also assumed that every
new admission resets the clock. Why would that be so?
Then a crime of moral turpitude within five years of any
pleasure trip to one’s native land would lead to mandatory
removal, even of a permanent resident with a clean record
for 20 or 50 years in the United States. The Board did not
explain in this case—and, as far as we can tell, has never
explained—why “admission” in §1227(a)(2)(A)(i) means the
most recent, rather than the initial, entry. Surely immigra-
tion officials read the timing rules in §1612 as running from
an alien’s first admission. Maybe there is a good reason why
§1227(a)(2)(A)(i) should work differently, but silence by an
10 No. 04-3027
administrative agency does not carry the day. See
Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004)
(reference to “the” date of admission in §1227(a)(2)(A)
implies that each alien has only one admission date, which
must be the initial entry). Both the Board’s transposition of
Rosas-Ramirez to a different context, and its casual as-
sumption that the latest of multiple admissions starts a
new five-year period, show that the agency has not given
this question the attention that it requires. Judges are not
allowed to invent rationales that the agency has not sup-
plied, so the order to remove Abdelqadar cannot rest on
§1227(a)(2)(A)(i).
That leaves §1227(a)(2)(A)(ii), which requires removal of
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”. Abdelqadar
has two convictions for violating 720 ILCS 5/17B-5 by
purchasing food stamps. According to the criminal charge
and his guilty plea, the purchases occurred two days apart.
Abdelqadar says that he cannot remember the different
transactions and insists that this implies that he was en-
gaged in a single criminal scheme. Doubtless this is so in
the sense that he had a criminal occupation. Just as grocers
sell milk for a living, so Abdelqadar apparently made his
living dealing in food stamps. Under the Sentencing
Guidelines such a criminal occupation would be treated as
one scheme for the purpose of aggregating relevant conduct.
See U.S.S.G. §1B1.3. The Board of Immigration Appeals has
decided, however, that the phrase “a single scheme of
criminal misconduct” is used in §1227(a)(2) (A)(ii) the way
it is employed in recidivist statutes rather than the way it
is employed in the Guidelines’ relevant- conduct system.
Matter of Adetiba, 20 I&N Dec. 506 (1992), concludes that
two offenses are not part of a “single scheme of criminal
misconduct” when the acts are distinct and neither offense
No. 04-3027 11
causes (or constitutes) the other. Robbing six people at one
poker game therefore would be a single scheme even if it led
to multiple convictions, cf. Ashe v. Swensen, 397 U.S. 436(1970), as would all lesser included offenses of a criminal
transaction. Likely the Board would treat conspiracy and its
overt acts as a single scheme, even though the overt acts
may be separate crimes as well. But the Board would treat
a series of securities frauds by a broker who finds a new
“mark” daily as distinct offenses rather than aspects of a
single scheme, because the broker could stop after any of
the frauds. This is exactly how federal courts approach
recidivist statutes such as the Armed Career Criminal Act,
the subject of United States v. Hudspeth, 42 F.3d 1015 (7th
Cir. 1994) (en banc). We held in Hudspeth that a series of
burglaries counts as multiple predicate offenses, even
though the crimes came close in time. (The intruders broke
through one party wall after another to rob each store in a
strip mall.) Section 1227(a)(2)(A)(ii) is a recidivist provision,
so it makes sense for the Board to use the approach com-
mon to recidivist clauses in the criminal law.
Adetiba does not exceed the latitude the Board possesses
in interpreting the immigration laws. Its approach to
“single scheme of criminal misconduct” has been sustained
as reasonable by at least four other circuits. See Balogun v.
INS, 31 F.3d 8 (1st Cir. 1994); Akindemowo v. INS, 61 F.3d
282 (4th Cir. 1995); Iredia v. INS, 981 F.2d 847, 849 (5th
Cir. 1993); Thanh Huu Nguyen v. INS, 991 F.2d 621, 623
(10th Cir. 1993). But see Gonzalez-Sandoval v. INS, 910
F.2d 614 (9th Cir. 1990). And as applied to Abdelqadar it
makes a good deal of sense; otherwise aliens who are career
criminals could stay in the United States as long as they
kept committing the same crime over and over. Abdelqadar
is a serial offender and thus is removable.
The petition to set aside the Board’s order is denied.
12 No. 04-3027
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05
No. 04-3027 13