Jesus Lagunas-Salgado v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3396 & 08-1452
JESUS L AGUNAS-SALGADO,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of an Order of
the Board of Immigration Appeals.
No. A90 712 401
A RGUED A PRIL 17, 2009—D ECIDED O CTOBER 13, 2009
Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. The Board of Immigration
Appeals and this court have long considered crimes with
fraud as an element to be crimes involving moral turpi-
tude. 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
2 Nos. 07-3396 & 08-1452
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 chil-
dren. 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.
Nos. 07-3396 & 08-1452 3
DHS then introduced a certified copy of the criminal
complaint, judgment of conviction, and waiver of indict-
ment 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 re-
quired, 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 docu-
ments 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 con-
cluded 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
4 Nos. 07-3396 & 08-1452
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 acknowl-
edged 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 remov-
able as charged and denied his requests for cancellation of
removal and waiver of inadmissibility. The judge con-
cluded that the factors in Lagunas-Salgado’s favor, in-
cluding 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
Nos. 07-3396 & 08-1452 5
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 determi-
nation 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 convic-
tion 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, 129 S. Ct. 2853 (2009).
The United States Code does not define “moral turpi-
tude.” 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 (1951). So we do the
6 Nos. 07-3396 & 08-1452
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 be-
tween 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 de-
creed, 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.
Nos. 07-3396 & 08-1452 7
Natural Resources Defense Council, Inc., 467 U.S. 837 (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. 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 con-
viction, 18 U.S.C. § 1028 (2000), was entitled “Fraud and
related activity in connection with identification docu-
ments 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 docu-
ment knowing that such document was stolen or pro-
duced without lawful authority.” 1
The BIA concluded that Lagunas-Salgado’s conviction
for violating 18 U.S.C. § 1028(a)(2) was one involving
1
The statute has since been amended to include a prohibition
on the knowing transfer of an “authentication feature” when
a person knows the feature was stolen or produced without
lawful authority. Secure Authentication Feature and Enhanced
Identification Defense Act of 2003, Pub. L. 108-21, 117 Stat.
650, 689.
8 Nos. 07-3396 & 08-1452
moral turpitude because it inherently involved fraud
and because it impeded the efficiency of the government
by deceit and dishonesty. The BIA has long considered
fraud a crime of moral turpitude. See Ali, 521 F.3d at
740 (collecting cases); Matter of Kochlani, 24 I. & N. Dec. 128,
130-31 (BIA 2007) (trafficking in counterfeit goods or
services is a crime involving moral turpitude); Matter of
Flores, 17 I. & N. Dec. 225, 230 (BIA 1980) (uttering and
selling false or counterfeit paper related to the registry
of aliens was a crime involving moral turpitude, even
though intent to defraud was not an explicit statutory
element). Cases such as these led us to call it “settled” that
crimes with fraud as an element involve moral turpitude.
Ghani v. Holder, 557 F.3d 836, 840 (7th Cir. 2009) (quoting
Padilla v. Gonzales, 397 F.3d 1016, 1020 (7th Cir. 2005)).
Attempting to put his case outside this strong precedent,
Lagunas-Salgado contends that his crime does not fall
within the “fraud” umbrella for several reasons. He em-
phasizes that he was not convicted of intending to
deceive the government, but rather only of transferring
the documents to other individuals. He points us to the
BIA’s opinion in Matter of Serna, 20 I. & N. Dec. 579 (BIA
1992), where the BIA held that a conviction merely for
possession of an altered immigration document with
knowledge that it was altered was not a conviction for a
crime involving moral turpitude. The BIA reasoned that
the crime there contained no requirement or proof that a
document was used or was intended to be used in an
unlawful manner. Distinguishing the case before it from
those finding that possession of certain stolen goods
involved moral turpitude, the BIA wrote:
Nos. 07-3396 & 08-1452 9
It is inherently wrong to deprive another person of
his property by theft. Therefore, it is also wrong to
perpetuate the harm already inflicted by continu-
ing to possess goods which are known or should
be known to be stolen. However, in the case of an
altered document, the Government has not been
harmed until a person actually uses it or intends
to use it for fraudulent or deceitful purposes.
Serna, 20 I. & N. Dec. at 585 n.10 (internal citations omit-
ted).
The BIA reasonably concluded in Serna that there may
be circumstances when a person possesses an altered im-
migration document without the intent to use it unlaw-
fully. Lagunas-Salgado, however, was not convicted of
merely possessing a false document. Rather, he pled guilty
to knowingly transferring false documents. In resolving
Lagunas-Salgado’s appeal, the BIA turned to its decision
in Flores, where it held that the crime of uttering and
selling false or counterfeit paper related to registry of
aliens in violation of 18 U.S.C. § 1426(b) was a crime of
moral turpitude. Although the statute did not expressly
include intent to defraud as an element of the offense,
the BIA said that selling false papers related to the
registry of aliens with knowledge that they were false
“inherently involves a deliberate deception of the gov-
ernment and an impairment of its lawful functions.”
Flores, 17 I. & N. Dec. at 230.
In Lagunas-Salgado’s case, the BIA was justified when
it relied on Flores to conclude that Lagunas-Salgado’s con-
viction was for a crime involving moral turpitude. He
10 Nos. 07-3396 & 08-1452
sold falsified alien registration papers, and his crime
required the government to prove that he knew of the
documents’ fraudulent nature and that he made the
transfers knowingly. The BIA therefore had reason to
find that his crime inherently involved deception, even
if it did not require that he present any documents
directly to the government.
Going beyond the elements of the crime, Lagunas-
Salgado also argues that his actions were not inherently
base, vile, or depraved because he was only transferring
documents so that persons could obtain employment to
feed their families. While we recognize this may have
been part of his motivation, this argument undermines
his contention that he was not deceiving the govern-
ment, as it recognizes that he knew the persons receiving
the false documents would use them in an attempt to
obtain work that they could not otherwise lawfully
obtain. This is also not a case of a person acting solely out
of the goodness of his heart. Lagunas-Salgado was not
giving out all the false documents for free. Rather, he
acknowledged that he often charged for the documents,
sometimes up to $100.
Lagunas-Salgado also contends that his case should not
fall under the fraud line of cases because he was not de-
frauding the people to whom he sold the documents. The
recipients knew they were getting fraudulent documents,
so he says he was not deceiving them at all. That the
recipients themselves were not deceived does not change
the fact that Lagunas-Salgado was selling fraudulent
Social Security cards and alien registration cards and
Nos. 07-3396 & 08-1452 11
placing them out into the world. The BIA reasonably
concluded that knowingly selling false official identifica-
tion documents involves inherently deceptive conduct
and is, therefore, a crime involving moral turpitude.
B. Other Arguments Fail for Lack of Prejudice
Lagunas-Salgado’s other arguments fare no better.
Although he raises due process arguments, he does not
have the requisite liberty interest to succeed on these
claims. See Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir.
2006). That is because the relief Lagunas-Salgado sought—
cancellation of removal and a waiver of inadmissibility—
was purely discretionary. See id. That said, we have
recognized that there are statutory and regulatory
protections designed to ensure that aliens receive fair
hearings in proceedings, including the right to present
material evidence at impartial hearings. See, e.g.,
Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir. 2006);
see also 8 U.S.C. § 1229a(b)(4); 8 C.F.R. § 1240.1(c).
In any event, the arguments Lagunas-Salgado raises do
not entitle him to any relief. He maintains that he should
have received a continuance so that his counsel could
have ten days to review his conviction documents, as he
says local practice required. (The government does not
agree). But he has not demonstrated any prejudice from
having less than ten days to review the documents. See
Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006)
(“[C]ourts do not set aside agencies’ decisions unless
mistakes cause prejudice”). The immigration judge set
Lagunas-Salgado’s case over until the afternoon so that
12 Nos. 07-3396 & 08-1452
counsel could review the documents, and he has never
presented any evidence that the certified copy of the
conviction and accompanying documents did not apply
to him. Lagunas-Salgado also faults the immigration
judge for declining to await fingerprint results before
taking evidence in the case. We find no problem with
the judge’s decision to do so, as he clearly stated that he
would continue the case as necessary to grant any relief.
Lagunas-Salgado also points out inaccuracies in the
initial BIA opinion. When it decided his motion to recon-
sider, the BIA acknowledged that it had erroneously
stated in its initial decision that Lagunas-Salgado had
been convicted of four counts of the offense in 2000
rather than one count. It then explained that this error
did not affect its determination, as he still stood convicted
of a crime involving moral turpitude. The factual error
in the BIA’s initial decision therefore did not prejudice
him.
Finally, Lagunas-Salgado argues that his removal
violated the Eighth Amendment’s excessive fine clause. We
decline to revisit our conclusion in Zamora-Mallari v.
Mukasey, 514 F.3d 679, 695 (7th Cir. 2008), that a removal
is not an “excessive fine” within the meaning of the
Eighth Amendment, and we accordingly find no
Eighth Amendment violation here.
C. Denial of Motion to Reopen Not Unconstitutional
After oral argument, Lagunas-Salgado filed a motion
asking us to order a remand to the BIA for it to address
Nos. 07-3396 & 08-1452 13
the impact that current conditions in Mexico have on his
requests for cancellation of removal and a waiver of inad-
missibility. He filed this motion after the BIA had
denied his motion to reopen his proceedings on the same
grounds. We held in Kucana v. Mukasey, 533 F.3d 534 (7th
Cir. 2008), cert. granted, 129 S. Ct. 2075 (2009), that we
lack jurisdiction to consider the discretionary denial of a
motion to reopen. Perhaps attempting to take his case
out of the reach of Kucana, Lagunas-Salgado maintains
that the BIA’s denial of his motion to reopen violated
principles of due process and equal protection because
the BIA reopened the case of another Mexican citizen after
a motion to reopen based on escalating violence in Mexico
had been filed. We find no constitutional violation, how-
ever. The BIA denied Lagunas-Salgado’s motion to
reopen because it was both time- and number-barred and
no statutory or regulatory exception applied. The motion
to reopen in the case to which Lagunas-Salgado points,
in contrast, had been filed in a timely manner. As a result,
we deny the request to remand on the basis of current
conditions in Mexico.
III. CONCLUSION
Lagunas-Salgado’s petition for review is D ENIED.
10-13-09