Iysheh, Ali J. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1082
ALI J. IYSHEH,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A41-192-575
____________
ARGUED OCTOBER 27, 2005—DECIDED FEBRUARY 1, 2006
____________
Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
Judges.
EVANS, Circuit Judge. Ali Iysheh, a permanent resident
of the United States since 1987, got caught up in a criminal
scheme involving hot automobiles. The cars were bought at
an auto auction in Wisconsin using bad checks, then
transported to Illinois, where Iysheh stored them while
looking for a buyer. Unfortunately for him, the buyer he
found was an undercover law enforcement officer. Iysheh
cooperated with the authorities, pleaded guilty to one count
of conspiracy in federal court in Chicago, and ended up with
a relatively light sentence of 2 years supervised release
with 5 months of home monitoring.
2 No. 05-1082
Iysheh’s involvement with hot cars also got him in hot
water with immigration authorities. In the deportation
proceedings that followed his conviction, the government
claimed that Iysheh’s crime qualified as an aggravated
felony—specifically, a conspiracy to commit an offense
involving fraud or deceit causing a loss greater than
$10,000. See 8 U.S.C. § 1101(a)(43)(M)(i) & (U). An immi-
gration judge agreed, as did the Board of Immigration
Appeals, and Iysheh was ordered removed to Jordan.1
This appeal followed.
Iysheh argues that the IJ and the BIA were mistaken and
that his crime of conviction is not an aggravated felony. (We
are authorized under 8 U.S.C. § 1252(a)(2)(D) to decide this
question of law, see REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231, § 106(a)(1)(A)(iii) (2005), so we
deny the government’s motion to dismiss the case for lack
of jurisdiction.) To decide if Iysheh is right, we need to know
exactly what he was convicted of. It turns out not to be so
simple. The statute to which he pleaded guilty, 18 U.S.C.
§ 371, prohibits two things: conspiracy to defraud the
United States, and conspiracy to commit “any offense”
against the United States (which means any federal
offense). When Iysheh was sentenced in October 1998, the
district court’s judgment order mistakenly identified the
nature of his conviction as “conspiracy to defraud the
government” in violation of § 371. After learning that he
might be deported based on this fraud offense, Iysheh asked
the court to correct the judgment. The court agreed, and a
new judgment order, issued in June 2000, identified
Iysheh’s offense as “conspiracy to transport, receive,
1
Mr. Iysheh says he was born in Tormusayya, Jordan, in 1960.
We are told that the area is now part of the West Bank and
that Jordan has “never claimed the land” subsequent to the 1967
war with Israel.
No. 05-1082 3
possess, etc. stolen motor vehicles” in violation of §§ 371
and 2313(a).
If that were the end of the story, Iysheh would be in
good shape. The elements of 18 U.S.C. § 2313(a) (“Sale or
receipt of stolen vehicles”) do not include fraud or deceit,
and although we have not had occasion to consider the
matter, other circuits have held that in order to qualify as a
fraud-based aggravated felony, an offense must have fraud
or deceit as one of its elements. See Omari v. Gonzales,
419 F.3d 303, 307 (5th Cir. 2005); Valansi v. Ashcroft,
278 F.3d 203, 210 (3d Cir. 2002); Moore v. Ashcroft,
251 F.3d 919, 923 (11th Cir. 2001).
But that isn’t the end of the story. Besides directly
specifying the nature of his offense, the judgment order
declares that Iysheh pleaded guilty to “count one of the
superseding indictment.” The superseding indictment, in
turn, describes a conspiracy to do three things: (1) “to
defraud a financial institution . . . in violation of [18 U.S.C.
§] 1344”; (2) “to transport in interstate commerce [stolen]
motor vehicles . . . in violation of [18 U.S.C. §] 2312”; (3) “to
receive, possess, conceal, store, and sell [stolen] motor
vehicles . . . in violation of [18 U.S.C. §] 2313(a).” The first
of these three obviously involves fraud or deceit; as for the
amount of loss, Iysheh admitted in his plea agreement (an
appropriate source of information about his conviction, see
Shepard v. United States, 125 S. Ct. 1254, 1263 (2005)) that
the total loss from the conspiracy was more than
$200,000—easily exceeding the threshold of $10,000. That
adds up to an aggravated felony.
So which is it? Did he plead guilty only to conspiring
to store and sell stolen cars, or to all three parts of
the conspiracy? The plea agreement seems clear on its
face: “Defendant will enter a voluntary plea of guilty to
Count One of the superseding indictment,” which in-
4 No. 05-1082
cludes conspiracy to defraud a financial institution. And
although there is no indication that Iysheh knew about
the fraud in obtaining the cars until it was a fait accompli,
the plea agreement he signed says nothing about limit-
ing his culpability to the parts of the conspiracy in which he
was personally involved. If anything, the plea agreement
demonstrates that Iysheh adopted the fraudulent scheme,
as it states that when he met with a potential buyer for the
cars (to be sold for $120,000) he told the buyer “that an
‘Arabian guy’ had purchased thirteen cars at an auction
with cashier’s checks that were ‘no good.’ ” Finally, if there
is any ambiguity, it comes only from the more restrictive
“nature of offense” specified in the corrected judgment
order. (The record does not include a transcript of Iysheh’s
change-of-plea or sentencing hearing.) Taking into account
the plea agreement, the superseding indictment, and the
judgment order, we are satisfied that it is “clear, unequivo-
cal, and convincing” that Iysheh pleaded guilty to the entire
conspiracy, fraud included. See Woodby v. INS, 385 U.S.
276, 277 (1966) (government must establish facts support-
ing deportability by clear, unequivocal, and convincing
evidence); Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.
2001).
Because our jurisdiction ends at this point, we cannot
exercise lenity, but we close by noting that Iysheh’s case for
not being sent back to the land of his birth is not without
compelling equity. He has been here 19 years, he is the
father of 8 children (4 are citizens of the United States), he
is married to a lawful permanent resident, and from all
appearances he cooperated fully with the government in the
case against a half dozen other defendants named in the
indictment, defendants who were far more involved in the
“fraud” end of crime than he was. But that said, the BIA
correctly determined that Iysheh was convicted of an
aggravated felony. We therefore must DENY his petition for
review.
No. 05-1082 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-06