* Pursuant to Fed. R. App. P. 43(c), we have substituted Alberto

Gonzales for John Ashcroft as the named respondent.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1775

LUIS FERNANDO PADILLA,

Petitioner-Appellant,

v.

ALBERTO GONZALES*

,

Respondent-Appellee.

____________

On Petition for Review of an Order of

the Board of Immigration Appeals.

No. A41 123 489

____________

ARGUED DECEMBER 15, 2004—DECIDED FEBRUARY 22, 2005

____________

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Luis Padilla seeks review of a

decision of the Board of Immigration Appeals (BIA) affirming 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 No. 04-1775

challenges the determination regarding obstruction of

justice. Because we find that the Illinois crime of obstruction 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 probation.

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.
No. 04-1775 3

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.

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 nonetheless removable because obstruction of justice was a crime of

moral turpitude and an aggravated felony.1

The IJ determined that all four of Padilla’s crimes

involved moral turpitude and that he was thus inadmissible. 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 inadmissibility 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.
4 No. 04-1775

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 determined, 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,

256 F.3d 600, 604 (7th Cir. 2001).

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, 211 F.3d 692, 695 (1st Cir. 2000).

This practice is intended to promote uniformity and avoid

“the oppressive administrative burden of scrutinizing the

specific conduct giving rise to criminal offenses.” Michel v.

INS, 206 F.3d 253, 264 (2d Cir. 2000). Generally, a statute

that encompasses both acts that do and do not involve

moral turpitude cannot be the basis of a removability
No. 04-1775 5

determination under the categorical approach. Hamdan v.

INS, 98 F.3d 183, 187 (5th Cir. 1996). However, if the

statute is “divisible,” that is, divided into “discrete subsections of acts that are and those that are not” crimes involving moral turpitude, then an alien convicted under a

subsection that includes only crimes involving moral

turpitude may be found removable. Id.

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 violation 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, 298 F.3d 1213, 1215 (11th

Cir. 2002); Medina v. United States, 259 F.3d 220, 227 (4th

Cir. 2001); Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir. 1999);

Hamdan, 98 F.3d at 185-86. We have recently stated that

a crime of moral turpitude is one that is deliberately
6 No. 04-1775

committed and “serious,” either in terms of the magnitude

of the loss that it causes or the indignation that it arouses

in the law-abiding public. Mei v. Ashcroft, 393 F.3d 737, 740

(7th Cir. 2004). We consider Padilla’s crime with this

standard in mind.

Padilla’s argument that his crime does not involve

moral turpitude because it is malum prohibitum, or proscribed 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, 287 F.3d 663, 666 (7th Cir. 2002). In

contrast, crimes that are mala prohibita encompass conduct

that “not everyone knows is criminal.” Id. We have acknowledged that the distinction between crimes that involve

moral turpitude and those that don’t corresponds to the

distinction between crimes that are mala in se and those

that are mala prohibita. Mei, 393 F.3d at 741; see also

Ajami, 22 I. & N. Dec. at 950; Beltran-Tirado v. INS, 213

F.3d 1179, 1184 (9th Cir. 2000) (Acts that are mala

prohibita are “not generally considered to involve ‘moral

turpitude’ ”). But Padilla’s crime of obstructing justice

cannot fairly be characterized as malum prohibitum, so the

distinction is of no help to him. He argues that furnishing

false information to police to prevent apprehension is “not

inherently immoral, but becomes so because positive law

expressly forbids its commission.” But the language of the

statute requires that the defendant knowingly provide false

information with the intent “to prevent the apprehension or

obstruct the prosecution or defense of any person.” Specific

intent is inconsistent with a crime that is malum

prohibitum. E.g., United States v. Dyck, 334 F.3d 736,

742 (8th Cir. 2003).

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
No. 04-1775 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 statements 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 mislead or conceal.” Smalley v. Ashcroft, 354 F. 3d 332, 337-38

(5th Cir. 2003); see also Goldeshtein v. INS, 8 F.3d 645, 648

(9th Cir. 1993). Crimes that do not involve fraud, but that

include “dishonesty or lying as an essential element” also

tend to involve moral turpitude. See Omagah v. Ashcroft,

288 F.3d 254, 262 (5th Cir. 2002); see also Itani, 298 F.3d at

1216 (“Generally a crime involving dishonesty or false statement is considered to be one involving moral turpitude.”).

Thus, crimes that involve making false statements have

been held to involve moral turpitude. E.g., Zaitona v. INS,

9 F.3d 432, 437 (6th Cir. 1993) (finding moral turpitude

where alien made false statements in driver’s license

application). Padilla was convicted of knowingly furnishing false information, a crime that specifically entails

dishonesty and thus implicates moral turpitude. Moreover, the information makes clear that he furnished

false information to a police officer, and almost all courts

have held that “intentionally deceiving the government

involves moral turpitude.” Omagah, 288 F.3d at 262.

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 No. 04-1775

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 committed a crime of moral turpitude because his actions entailed

intentionally assisting the principal in avoiding detection.

Cabral v. INS, 15 F.3d 193, 197 (1st Cir. 1994). Similarly,

money laundering was found to involve moral turpitude

where it involved “intentionally concealing the proceeds

of illegal drug sales.” Smalley, 354 F.3d at 338-39. Like

these crimes, Padilla’s crime entails an intent to conceal

criminal activity, and his crime likewise involves moral

turpitude.

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 manifestation of an evil intent.” Mei, 393 F.3d at 741. Padilla’s

crime was unquestionably deliberate; it was committed with

the intent to “prevent the apprehension or obstruct the

prosecution or defense of any person.” 720 Ill. Comp. Stat.

5/31-4(a). Given that Padilla’s crime involves furnishing

false information, and requires the specific intent to conceal

criminal activity, it can fairly be categorized as “contrary to

justice, honesty, or morality,” De Leon-Reynoso, 293 F.3d at

633, and it thus involves moral turpitude. Therefore,

Padilla is inadmissible under § 1182(a)(2)(A)(i) and we lack

jurisdiction to review the order of removal.

Because we find that the Illinois crime of obstructing justice is a crime involving moral turpitude, we DISMISS

the petition for lack of jurisdiction.
No. 04-1775 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-22-05