*1 Before K ANNE , W OOD , and W ILLIAMS , Circuit Judges . K ANNE , Circuit Judge . Luis Padilla seeks review of a decision of the Board of Immigration Appeals (BIA) affirm- ing an order of removal. An Immigration Judge (IJ) found Padilla inadmissible because he had been convicted of four crimes involving moral turpitude. Padilla challenged that finding on appeal, and the BIA partially affirmed, determining that Padilla’s convictions for sexual abuse of a minor and obstruction of justice were for crimes involving moral turpitude. In his petition for review, Padilla *2 challenges the determination regarding obstruction of justice. Because we find that the Illinois crime of obstruc- tion of justice is a crime involving moral turpitude, we dismiss the petition for lack of jurisdiction.
I. Background
Padilla, a native of Mexico, became a lawful permanent resident of the United States in 1986. In 1989, he pleaded guilty to criminal sexual abuse of a minor in violation of Ill. Rev. Stat., ch. 38, § 12-15(a)(1), and was sentenced to 12 months of probation. In 1991, Padilla pleaded guilty to obstruction of justice in violation of Ill. Rev. Stat., ch. 38, § 31-4(a), for knowingly furnishing false information to a police officer after being stopped for a traffic violation in order to avoid apprehension for driving with a revoked license. He was sentenced to one year of imprisonment. In 1995, Padilla pleaded guilty to aggravated driving under the influence of alcohol and driving with a revoked license for which he was sentenced to 30 months of pro- bation.
In May 2000, Padilla presented himself for inspection upon reentering the United States after a trip abroad and was classified as an arriving alien seeking admission. Shortly thereafter, the Immigration and Naturalization Service, whose enforcement functions are now performed by the Department of Homeland Security, initiated removal proceedings against Padilla by filing a Notice to Appear (NTA). The NTA alleged that Padilla was inadmissable under 8 U.S.C. § 1182(a)(2)(A)(i) for committing a crime involving moral turpitude. The NTA listed all four of Padilla’s convictions—sexual abuse, obstruction of justice, driving with a revoked license, and aggravated driving under the influence of alcohol—without specifying whether § 1182(a)(2)(A)(i) applied to one or all of the convictions. *3 3
At a hearing before an IJ in June 2001, Padilla admitted that he been convicted of the four crimes listed in the NTA, but denied that any of them involved moral turpitude. Under § 1182(a)(2)(A)(i), an alien who admits to committing or is convicted of a crime involving moral turpitude is inadmissible, unless either of two exceptions applies. Relevant here is the exception for petty offenses: those for which the maximum penalty does not exceed one year of imprisonment, where the alien was not sentenced to more than 6 months of imprisonment. § 1182(a)(2)(A)(ii). This exception applies only to an alien “who committed only one crime.” Id. During the hearing, the government took the position that Padilla’s conviction for sexual abuse did not in itself render him removable because he was not sentenced to one year or more in prison, but that Padilla was nonethe- less removable because obstruction of justice was a crime of moral turpitude and an aggravated felony.
The IJ determined that all four of Padilla’s crimes involved moral turpitude and that he was thus inadmis- sible. The IJ also found that the petty-offense exception was inapplicable because Padilla had been convicted of more than one crime. Padilla’s application for a waiver of inad- missibility under 8 U.S.C. § 1182(c) and his application for voluntary departure under 8 U.S.C. § 1229(b) were denied, and the IJ ordered him removed to Mexico.
Padilla appealed the IJ’s decision to the BIA. The BIA reversed the IJ’s decision that aggravated driving under the influence and driving with a revoked license were crimes involving moral turpitude. The BIA nevertheless affirmed the order of removal, determining that obstruction of justice and sexual abuse were crimes involving moral turpitude that rendered Padilla removable under § 1182(a)(2)(A)(i). The petty-offense exception did not apply, the BIA deter- mined, because Padilla had committed more than one crime involving moral turpitude. Padilla appeals.
II. Analysis
Padilla’s appeal implicates the jurisdiction-stripping
provision of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). Under that provision,
“no court shall have jurisdiction to review any final order of
removal” that is based on the commission of a crime covered
by § 1182(a)(2). 8 U.S.C. § 1252(a)(2)(C). Nevertheless, we
retain “jurisdiction in order to determine jurisdiction,” that
is, to determine whether the underlying crime was in fact
a crime involving moral turpitude.
See Bazan-Reyes v. INS
,
In determining whether a crime involves moral turpitude,
we employ a “categorical” approach; that is, we determine
whether a given crime necessarily involves moral turpitude
by examining only the elements of the statute under which
the alien was convicted and the record of conviction, not the
“circumstances surrounding the particular transgression.”
DeLeon-Reynoso v. Ashcroft
, 293 F.3d 633, 635 (3d Cir.
2002);
Nguyen v. Reno
,
In his petition for review, Padilla argues that he was improperly found removable because obstruction of justice is not a crime involving moral turpitude. He was convicted under 720 Ill. Comp. Stat. 5/31-4(a) (formerly Ill. Rev. Stat., ch. 38, § 31-4(a)), of knowingly furnishing false information “with intent to prevent the apprehension or obstruct the prosecution or defense of any person.” The information charged Padilla with giving officers a false name and driver’s license when stopped for a traffic viola- tion for the purpose of preventing his arrest for driving with a revoked license. Padilla asserts that obstruction of justice, although prohibited by law, is not inherently immoral or malum in se , and thus cannot be properly classified as a crime involving moral turpitude. He further argues that he was convicted under a subsection of a divisible statute that does not define a crime of moral turpitude, because the act of “furnishing false information” lacks an element of fraud or other evil intent.
The BIA has often stated that “moral turpitude refers
generally to conduct which is inherently base, vile, or
depraved, and contrary to the accepted rules of morality
and the duties owed between persons or to society in
general,”
e.g.
,
In re Ajami
, 22 I. & N. Dec. 949, 950 (BIA
1999), and reviewing courts apply essentially the same
standard,
e.g.
,
Itani v. Ashcroft
,
Padilla’s argument that his crime does not involve
moral turpitude because it is
malum prohibitum,
or pro-
scribed by law but not inherently immoral, has no merit.
Crimes that are
mala in se
are those that are contrary to “a
society’s basic moral prohibitions,” or “bad in themselves.”
United States v. Urfer
,
Padilla next argues that even if we find that his crime is not malum prohibitum , it nevertheless does not involve moral turpitude. He asserts that the subsection of the obstruction of justice statute under which he was *7 convicted is divisible from the rest of the statute and does not describe a crime of moral turpitude because it does not contain an element of fraud or evil intent.
Padilla’s crime lacks the element of fraud, but his
crime entails other conduct that is sufficient to support
a finding of moral turpitude, namely, making false state-
ments and concealing criminal activity. Although it is
settled that “crimes in which fraud [is] an ingredient”
involve moral turpitude,
see Jordan v. DeGeorge
, 341 U.S.
223, 232 (1951), moral turpitude may inhere in crimes
that do not contain fraud as an element. Some courts
have read “fraudulent intent,” and thus moral turpitude,
into conduct “the likely effect of which would be to mis-
lead or conceal.”
Smalley v. Ashcroft
,
Concealing criminal behavior has also been found to
involve moral turpitude. Thus the crime of misprision of
a felony involves moral turpitude because it “necessarily
involves an affirmative act of concealment or participa-
*8
tion in a felony, behavior that runs contrary to accepted
social duties and involves dishonest or fraudulent activity.”
Itani
, 298 F.3d at 1216. An alien convicted of being an
accessory after the fact to murder was held to have commit-
ted a crime of moral turpitude because his actions entailed
intentionally assisting the principal in avoiding detection.
Cabral v. INS
,
Moreover, contrary to Padilla’s assertion, his crime
involves the “evil intent” that is associated with crimes
of moral turpitude. The deliberate decision to commit a
serious crime “can certainly be regarded as the mani-
festation of an evil intent.”
Mei
,
Because we find that the Illinois crime of obstruct- ing justice is a crime involving moral turpitude, we D ISMISS the petition for lack of jurisdiction.
A true Copy:
Teste:
________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—2-22-05
Notes
[*] Pursuant to Fed. R. App. P. 43(c), we have substituted Alberto Gonzales for John Ashcroft as the named respondent.
[1] We question the wisdom of the government’s concession that criminal sexual abuse falls under the petty-offense exception of § 1182(a)(2)(A)(ii). Padilla was initially sentenced to 12 months of probation for that crime, which is a Class 4 Felony. He later violated his probation and was sentenced to an additional 12 months of probation plus periodic imprisonment, for which he subsequently failed to report. The sentence he received for violating his probation is part of his sentence for criminal sexual abuse. But the government waived the argument that this conviction rendered Padilla removable; thus we need not decide the applicability of the exception.