Ali, Ibrahim A. v. Filip, Mark R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1970
IBRAHIM A. ALI,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
____________
ARGUED MARCH 5, 2008—DECIDED APRIL 4, 2008
____________
Before EASTERBROOK, Chief Judge, and MANION and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. Ibrahim Ali, a citizen of
Jordan, lived in the United States for more than 20 years
as a permanent resident alien. He might have become a
citizen; his wife and children are citizens; but when he
chose to remain an alien and commit a federal crime, he
put his residence and his family life in jeopardy. His
crime is selling firearms, without a license or required
paperwork, to people not authorized to own them. The
conviction is for conspiracy “to commit any offense against
2 No. 07-1970
the United States, or to defraud the United States”, in
violation of 18 U.S.C. §371. The statutes that the conspira-
tors agreed to violate are 18 U.S.C. §922(a)(1)(A) and
§924(a)(1). The immigration judge and Board of Immigra-
tion Appeals classified Ali’s offense as one “involving
moral turpitude”, which foreclosed any opportunity
for him to seek adjustment of status on the basis of his
wife’s petition.
Ali concedes that, because his offense is a firearms
crime, it is an “aggravated felony” under 8 U.S.C.
§1227(a)(2)(A)(iii). That blocks most avenues of discretion-
ary relief. The one that remains open is adjustment of
status under 8 U.S.C. §1255(a). Ali is eligible to seek
adjustment of status only if he could be readmitted to
the United States. His conviction makes him ineligible
for admission, but he can seek a waiver of that ineligibil-
ity, see 8 U.S.C. §1182(h)—unless his offense is a “crime
involving moral turpitude.” 8 U.S.C. §1182(a)(2)(A). We are
entitled to consider that subject notwithstanding the
aggravated felony because the proper classification of
an offense is an issue of law. See 8 U.S.C. §1252(a)(2)(D).
But “moral turpitude” is a notoriously plastic term—one
so ambulatory that some Justices have thought it uncon-
stitutionally vague, see Jordan v. DeGeorge, 341 U.S. 223
(1951) (holding the phrase constitutionally adequate,
over three dissents). Neither the Criminal Code nor the
Immigration and Nationality Act supplies a definition.
When Congress leaves an administrative agency with
discretion to resolve a statutory ambiguity, judicial review
is deferential. 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). That principle applies to
immigration no less than to other subjects. INS v. Aguirre-
No. 07-1970 3
Aguirre, 526 U.S. 415 (1999). We have several times avoided
deciding whether the agency’s classification of a crime as
one of “moral turpitude” is covered by Chevron. See,
e.g., Garcia-Meza v. Mukasey, No. 07-2215 (7th Cir. Feb. 5,
2008); Wei Cong Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.
2004). There is little justification for keeping everyone
on tenterhooks and requiring counsel to brief this issue
over and over again. Mead holds that a delegation of
authority to an agency by the enactment of a vague statute
that the agency must administer confers interpretive
latitude on the agency rather than the court (that’s the
meaning of Chevron), provided that the agency uses
rulemaking or adjudication to exercise its discretion.
“Crime involving moral turpitude” is an open-ended
term; the Board and other immigration officials are both
required and entitled to flesh out its meaning; and as the
Board has done this through formal adjudication the
agency is entitled to the respect afforded by the Chevron
doctrine.
The Board gave two reasons for finding that Ali’s crime
is one of moral turpitude. One is well-founded in the
Board’s jurisprudence and thus has all the support that
Chevron can afford. The other is not—and, as it was ap-
plied in this case by a single member of the Board and not
based on a precedential opinion issued by a multi-member
panel, it lacks that support.
We start with the weak reason. The Board stated that
unlicensed commercial trafficking in firearms is morally
reprehensible. That view is incompatible with the Board’s
own precedents, which distinguish between acts that
are seen as ethically wrong without any need for legal
prohibition (acts wrong in themselves, or malum in se),
and those that are ethically neutral and forbidden only by
4 No. 07-1970
positive enactment (acts wrong because they are so de-
creed, or malum prohibitum). The Board has held that acts
that are wrong in themselves, but not those forbidden only
by positive enactment, are treated as crimes of moral
turpitude. See Matter of L-V-C-, 22 I.&N. Dec. 594, 604
(1999); Matter of Serna, 20 I.&N. Dec. 579 (1992). Licensing
and form-filing requirements are in the category of malum
prohibitum.
The single member speaking for the Board wrote that
firearms licenses are different, because guns “require a
license due to their inherent potential risk to the public
welfare”. That reflects ignorance of this nation’s history.
Licensing of dealers (and users) of firearms is a recent
development; the first version of what is now §922
and §924 was not enacted until 1968; there is nothing
inevitable about the current rules. Guns are dangerous,
but the choice between licensing (a form of limited con-
trol before the fact) and punishment for misuse of fire-
arms is not an obvious one. Knives and other blade weap-
ons are not licensed; their misuse is controlled through
sanctions after the fact, which deter future wrongdoing.
There are open questions, reflected in Parker v. District of
Columbia v. Heller, 478 F.3d 370 (D.C. Cir. 2007), cert.
granted under the name District of Columbia v. Heller, 128
S. Ct. 645 (2007) (argued March 18, 2008), about the
extent to which the Constitution’s second amendment
allows the national government to regulate firearms. One
reason why many firearms-control statutes require proof
that the accused knew about the law’s requirements is
precisely that any complex licensing system has unex-
pected and counterintuitive applications, which people
cannot discover by consulting a moral compass. See
Staples v. United States, 511 U.S. 600 (1994).
No. 07-1970 5
The Board’s existing precedents link “moral turpitude”
to acts wrong in themselves—acts that, as Matter of Frank-
lin, 20 I.&N. Dec. 867 (1994), put it, are base or vile, or
display indifference to ethical concerns. Doubtless
some unlicensed sales of firearms meet that condition.
Think of sales to known terrorists or gangsters. But other
licensing and documentation offenses pose low risks, see
Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492 (7th Cir.
2006), while still others are ambiguous. If all firearms-
licensing offenses are to be moved to the “moral turpitude”
category, that must be done by the Board as a whole
after full deliberation.
The Board was on stronger ground, however, in treating
Ali’s offense as a species of fraud, which has long been
seen as a crime of moral turpitude. See Jordan, 341 U.S.
at 227–28, 232; Palmer v. INS, 4 F.3d 482, 485 n.6 (7th Cir.
1993); Matter of Kochlani, 24 I.&N. Dec. 128, 130–31 (2007)
(reaffirming the Board’s precedents on this issue). Ali does
not deny that, if his conviction is for fraud, then he is
ineligible for discretionary relief. But he insists that unli-
censed dealing in firearms does not entail fraud. If
his conviction were under 18 U.S.C. §924(a)(1)(D), as he
supposes, Ali might have a point—Bryan v. United States,
524 U.S. 184 (1998), on which the agency’s brief relies,
has nothing to do with moral turpitude—but the actual
offense of conviction is 18 U.S.C. §371. That crime may
be committed in either of two ways: conspiracy to com-
mit some other federal crime, or conspiracy to defraud
the United States. The IJ and Board concluded that
Ali’s violation of §371 entailed fraud (implying that the
subsection of §924 underlying the crime was §924(a)(1)(A)).
And with good reason. The judgment of conviction de-
scribes the crime as “[c]onspiracy to defraud the United
6 No. 07-1970
States.” The presentence report adds: “it was further part
of the conspiracy that the defendants misrepresented,
concealed and hid, and caused to be misrepresented[,]
concealed and hidden, the purpose of and the acts done
in furtherance of the conspiracy”. The presentence report
also stated that Ali and his confederates sold the guns to
someone who, they believed, would resell them to known
thugs (members of the Latin Kings street gang) in ex-
change for cocaine.
Ali sees the Board’s use of the presentence report as his
opening. Several opinions of this court state that immi-
gration officials must stick to the indictment and record
of conviction when using an alien’s convictions as the
basis of removal. See, e.g., Hashish v. Gonzales, 442 F.3d
572, 575 (7th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016,
1019 (7th Cir. 2005). The presentence report summarizes
information from the prosecutor, from witnesses, and
from the defendant’s own mouth. Ali maintains that its
contents must be ignored when classifying an offense for
immigration purposes.
Our decisions in Hashish, Padilla, and similar cases apply
to immigration law the approach that Taylor v. United
States, 495 U.S. 575 (1990), and Shepard v. United States,
544 U.S. 13 (2005), adopt for recidivist enhancements in
federal criminal prosecutions. The Supreme Court gave
two principal reasons: in Taylor it stressed the benefits of
simple application, so that sentencing not be burdened by
a retrial of the original prosecution, and in Shepard it
stressed the allocation of tasks between judge and jury
under the sixth amendment. The Justices adopted a rule
that prevented the sentencing judge in the new case from
assuming a role that the Constitution assigns to the
jurors in the first case. Neither of these reasons applies
No. 07-1970 7
to immigration proceedings. They are not criminal pros-
ecutions, so the sixth amendment and the doctrine of
Apprendi v. New Jersey, 530 U.S. 466 (2000), do not come
into play. And how much time the agency wants to devote
to the resolution of particular issues is, we should sup-
pose, a question for the agency itself rather than the
judiciary. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006)
(adopting for immigration cases what the court called a
“modified categorical approach” rather than the rule that
Taylor and Shepard devise for criminal prosecutions). This
leaves decisions such as Hashish and Padilla hanging,
for they do not discuss the differences between administra-
tive and criminal proceedings. Meanwhile other panels
have felt free to look beyond the charge and record of
conviction to classify an offense as one of moral turpitude,
see Wei Cong Mei, and still other panels have noted the
inconsistent treatment within the court. See, e.g., Abdelqadar
v. Gonzales, 413 F.3d 668, 671–72 (7th Cir. 2005).
Instead of starting with the procedures used in crim-
inal prosecutions, we think it best to recognize that there
are at least two distinct questions in immigration proceed-
ings. The first is the fact of the prior conviction, which
usually is the only thing that needs to be established for
recidivist sentencing in a criminal prosecution. The sec-
ond is the appropriate classification of that conviction,
which may require additional information. The need to
decide whether a crime is one of “moral turpitude” does
not have a parallel in criminal cases and may require
some additional information, since the charging papers
that led to the prior conviction are not framed with such
classifications in mind (for “moral turpitude” just isn’t
relevant to the criminal prosecution; it is not as if “turpi-
tude” were an element of an offense). Other parts of
8 No. 07-1970
immigration law ask how much the victim lost from a
crime (one example is 8 U.S.C. §1101(a)(43)(M)(i)), and
again this is not an element of the crime but must be
pinned down in the administrative proceeding.
For the first question—of what crime does the alien
stand convicted?—the Immigration and Nationality Act
supplies a rule.
In any proceeding under this chapter, any of the
following documents or records (or a certified copy
of such an official document or record) shall consti-
tute proof of a criminal conviction:
(i) An official record of judgment and
conviction.
(ii) An official record of plea, verdict, and
sentence.
(iii) A docket entry from court records that
indicates the existence of the conviction.
(iv) Official minutes of a court proceeding
or a transcript of a court hearing in which
the court takes notice of the existence of the
conviction.
(v) An abstract of a record of conviction
prepared by the court in which the convic-
tion was entered, or by a State official
associated with the State’s repository of
criminal justice records, that indicates the
charge or section of law violated, the dis-
position of the case, the existence and date
of conviction, and the sentence.
(vi) Any document or record prepared by,
or under the direction of, the court in
No. 07-1970 9
which the conviction was entered that
indicates the existence of a conviction.
(vii) Any document or record attesting to
the conviction that is maintained by an
official of a State or Federal penal institu-
tion, which is the basis for that institution’s
authority to assume custody of the individ-
ual named in the record.
8 U.S.C. §1229a(c)(3)(B). This statute is similar to the
approach of Taylor and Shepard, but to the extent of any
difference the statute must control. As for the second
question—whether the agency may go beyond the rec-
ord of conviction to characterize or classify an offense—the
Board has decided that additional evidence may be taken
by the immigration judge when necessary. Matter of
Babaisakov, 24 I.&N. Dec. 306 (2007).
Decisions such as Hashish and Padilla—in and out of this
circuit^—predate (or do not notice) Babaisakov and require
^
Most of the regional circuits have applied the Taylor and
Shepard approach directly to immigration cases, without
remarking the constitutional and statutory differences. See
Singh v. Department of Homeland Security, 2008 U.S. App. LEXIS
4378 (2d Cir. Feb. 29, 2008); Soliman v. Gonzales, 419 F.3d 276 (4th
Cir. 2005); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir.
2007); Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004);
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007)
(en banc); Batrez Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir.
2007); Vuksanovic v. Attorney General, 439 F.3d 1308 (11th Cir.
2006). These decisions do not discuss the significance of 8 U.S.C.
§1229a(c)(3)(B). The first circuit in Conteh, by contrast, adopted
a “modified categorical” approach that it understands the
(continued...)
10 No. 07-1970
reexamination now that the Board has fully developed its
own position, for administrative discretion belongs to the
agency rather than to the court. See National Cable &
Telecommunications Association v. Brand X Internet Services,
545 U.S. 967 (2005). If our opinions had concluded that
the immigration laws leave the Board with no course
other than the one applied to criminal prosecutions by
Taylor and Shepard, then the Board’s view must yield. But
that’s not what Hashish, Padilla, and similar decisions say.
They just carry over to immigration proceedings an
approach familiar to the federal judiciary from criminal
prosecutions. Given §1229a(c)(3)(B), which none of our
prior opinions mentions, and Babaisakov, which is new,
we now conclude that when deciding how to classify
convictions under criteria that go beyond the criminal
charge—such as the amount of the victim’s loss, or
whether the crime is one of “moral turpitude”, the agency
has the discretion to consider evidence beyond the charg-
ing papers and judgment of conviction. Because it re-
solves a disagreement within the circuit, this opinion has
been circulated to all active judges under Circuit Rule 40(e).
No judge favored a hearing en banc.
Section 1229a(c)(3)(B) does not include presentence
reports among the documents that the agency may use
to determine what crime Ali committed. See Conteh, 461
F.3d at 58–59. That is not, however, how the agency used
the report. The judgment of conviction itself contains
what is required to that end (the crime is conspiracy to
(...continued)
Board to prefer. Conteh relies substantially on §1229a(c)(3)(B).
Ours is the first court of appeals to take account of both
§1229a(c)(3)(B) and Babaisakov.
No. 07-1970 11
defraud the United States, in violation of §371). The
agency used the presentence report to ensure that the
judgment was not a mistake (in other words, to ensure
that there really was deceit, rather than just a conspiracy
to violate a record-keeping law) and to make the moral-
turpitude classification, a matter that stands apart from
the elements of the offense. Ali does not deny that, if
the whole administrative record may be consulted, sub-
stantial evidence supports the IJ’s decision (which the
BIA joined) that his crime entailed concealment and deceit.
That makes it a “crime involving moral turpitude”, and
the petition for review is denied.
USCA-02-C-0072—4-4-08