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 designated 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 contentions to the Board. The agency’s assertion at oral argument

that failure to preserve an issue deprives us of subjectmatter 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 jurisdiction 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. CardozaFonseca, 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 possesses, 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, possesses, 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 authorizations 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 Department 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 authorizations 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 “aggravated 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 permissible 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 convicted “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 entered 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 correct. 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 entry: 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 Immigration 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 “admission”—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 began—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 different 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 dispositions 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 RosasRamirez without regard to the different function “admission” 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 immigration 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 assumption 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 supplied, 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 engaged 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 common 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