Mohammad Abu Hashish v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2266
M OHAMMAD A BU H ASHISH ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-651-325
____________
A RGUED J ANUARY 13, 2006—DECIDED M ARCH 24, 2006
____________
Before R IPPLE , K ANNE and R OVNER , Circuit Judges.
R IPPLE , Circuit Judge. Petitioner Mohammad Abu Hashish
seeks review of an adverse decision of the Board of Immi-
gration Appeals (the “BIA” or “Board”) that denied his
request for cancellation of removal and voluntary departure.
For the reasons set forth in the following opinion, we affirm
the decision of the BIA and dismiss the petition.

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2 No. 05-2266
1 No further details concerning this crime are contained in the
record.
I
BACKGROUND
A. Facts
Mr. Abu Hashish is a Jordanian who originally was
admitted to the United States on February 5, 1990, on
a visitor’s visa. Upon entering this country, Mr. Abu
Hashish first worked as a stock boy, and then as a
street vendor. In 1992, Mr. Abu Hashish began distribut-
ing candy to grocery stores. From 1994 to 2000, he owned
and operated two different stores.
In November 1992, Mr. Abu Hashish pleaded guilty to
theft of a recordable sound in violation of Illinois Criminal
Code 38-16-1, see 720 ILCS 5/16-1; 1 he was sentenced to
one year probation and was required to pay restitution. A.R.
271-72. In 1999, Mr. Abu Hashish again was charged with
theft, specifically obtaining or exerting unauthorized control
over the property of another, in violation of 720 ILCS 5/16-
1(A)(1); on December 16, 2002, he pleaded guilty to this
misdemeanor charge. Mr. Abu Hashish was given a
“conditional discharge sentence” of two years and was
required to pay restitution in the amount of $2,150. A.R. 269.
B. Administrative Proceedings
In June 2000, the former Immigration and Naturaliza-
tion Service (“INS”) issued Mr. Abu Hashish a notice to
appear. At an April 20, 2001 hearing before an Immigra-
tion Judge (“IJ”), Mr. Abu Hashish conceded removabil-

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No. 05-2266 3
ity but sought cancellation of removal. See 8 U.S.C. § 1229b.
A hearing on his claim for relief was continued several
times to allow counsel for Mr. Abu Hashish and for the
Government to obtain documentation regarding the disposi-
tion of criminal charges against him. The IJ also suggested
that Mr. Abu Hashish’s counsel explore other avenues of
relief should Mr. Abu Hashish’s convictions render him
statutorily ineligible for cancellation of removal. At a
subsequent hearing, the IJ confirmed his receipt of a brief
filed by Mr. Abu Hashish, which continued to assert his
eligibility for cancellation of removal, as well as of other
documents from the parties concerning Mr. Abu Hashish’s
convictions.
In a decision issued on April 22, 2004, the IJ determined
that both Mr. Abu Hashish’s 1992 and 2002 theft convictions
constituted crimes of moral turpitude. Mr. Abu Hashish,
therefore, was statutorily ineligible for cancellation of
removal. The IJ also determined that, in light of these
crimes, Mr. Abu Hashish had not established good moral
character for the requisite number of years necessary to
qualify for a grant of voluntary departure. See 8 U.S.C.
§ 1229c. Mr. Abu Hashish appealed to the BIA.
In a written opinion dated April 23, 2005, the BIA af-
firmed the IJ’s decision. The BIA rejected Mr. Abu Hashish’s
argument that the IJ should have conducted “an inquiry into
the nature of the respondent’s theft convictions to determine
whether such convictions in fact constitute crimes involving
moral turpitude.” A.R. 3. The BIA stated that “[i]t is well
settled that theft, regardless of the sentenced [sic] imposed
or the amount stolen, is a crime involving moral turpitude.”
Id. Furthermore, because both of Mr. Abu Hashish’s crimes
fell into this category, he could not invoke the exception
available for individuals who had committed only one

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4 No. 05-2266
“petty offense” as defined by statute. See id. (citing 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II)). Finally, the BIA stated that, “in
light of the respondent’s most recent theft conviction, the
Immigration Judge properly found that the respondent
failed to establish his eligibility for voluntary departure.” Id.
II
ANALYSIS
A. Jurisdiction
Generally speaking, this court has jurisdiction to re-
view final orders of removal under 8 U.S.C. § 1252. How-
ever, this court does not have jurisdiction to review the
discretionary decision of the Attorney General to grant (or
deny) cancellation of removal or voluntary departure. See 8
U.S.C. § 1252(a)(2)(B)(I). Despite this prohibition, we
do have jurisdiction to review nondiscretionary deter-
minations relating to an alien’s eligibility for relief. See, e.g.,
Morales-Morales v. Ashcroft, 384 F.3d 418, 421-23 (7th Cir.
2004) (holding that the meaning of the term continuous
physical presence for purposes of cancellation of removal is
a nondiscretionary question of statutory interpretation). We
also may review constitutional questions and questions of
law raised in a petition for review of a final removal order.
See 8 U.S.C. § 1252(a)(2)(D). Because Mr. Abu Hashish’s
claims with respect to both cancellation of removal and
voluntary departure raise questions of law, we have juris-
diction to review those claims.

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No. 05-2266 5
B. Cancellation of Removal
1.
Mr. Abu Hashish argues that the BIA erred when it
deemed his theft convictions “crimes of moral turpitude,”
which rendered him ineligible for cancellation of removal.
Before evaluating Mr. Abu Hashish’s specific claims,
we turn briefly to the statutory requirements for cancel-
lation of removal. See id. § 1229b(b)(1). Section 1229b(b)(1)
provides:
The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible
or deportable from the United States if the alien—
(A) has been physically present in the United States
for a continuous period of not less than 10 years imme-
diately preceding the date of such application;
(B) has been a person of good moral character during
such period;
(C) has not been convicted of an offense under sec-
tion 1182(a)(2) [crimes of moral turpitude or drug-
related crimes], 1227(a)(2), or 1227(a)(3) of this title
(except in a case described in section 1227(a)(7) of this
title where the Attorney General exercises discretion
to grant a waiver); and
(D) establishes that removal would result in exceptional
and extremely unusual hardship to the alien’s spouse,
parent, or child, who is a citizen of the United States or
an alien lawfully admitted for permanent residence.
Section 1229b goes on to state that any period of physical
presence shall be deemed to end when the “alien has
committed an offense referred to in section 1182(a)(2)”—a

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6 No. 05-2266
2 As we recently observed in Mei v. Ashcroft, 393 F.3d 737, 739
(7th Cir. 2004), there is a split among the circuits regarding
the level of deference owed to the BIA’s decision to classify
a particular crime as one “involving moral turpitude.” In Mei, we
found it unnecessary to decide the question because regardless of
the level of deference—very great or none at all—the Board’s
determination that the crime at issue involved moral turpitude
had to be upheld. We are in a similar situation here: Absent any
deference to the BIA’s classification of Mr. Abu Hashish’s crimes,
we still would reach the conclusion that his crimes of theft are
crimes of moral turpitude.
crime of moral turpitude or a drug-related offense. Id.
§ 1229b(d)(1). With these standards in mind, we turn to
Mr. Abu Hashish’s claims on appeal.
2.
On the issue of whether his crimes constitute crimes of
moral turpitude, 2 Mr. Abu Hashish submits that the
Board should have looked beyond the crimes charged to his
underlying conduct to determine whether his crimes fall
within this category. Mr. Abu Hashish analogizes his first
conviction—for theft of a recordable sound—to down-
loading music over the internet. This type of activity, Mr.
Abu Hashish maintains, does not arouse indignation in the
general populace and, therefore, should not be considered
a crime of moral turpitude. With respect to his second
conviction, receiving stolen property, Mr. Abu Hashish
suggests that, because a defendant could be convicted for
this crime absent actual knowledge that the property was
stolen, it does not entail the moral culpability usually
associated with crimes of moral turpitude.

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No. 05-2266 7
We believe that Mr. Abu Hashish’s arguments ignore
the framework that we have established for analyzing
whether a crime is one of moral turpitude for purposes
of the immigration laws. We recently restated that frame-
work in Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. 2005):
In determining whether a crime involves moral turpi-
tude, we employ a “categorical” approach; that is,
we determine whether a given crime necessarily in-
volves moral turpitude by examining only the elements
of the statute under which the alien was convicted and
the record of conviction, not the circumstances sur-
rounding the particular transgression. This practice is
intended to promote uniformity and avoid the oppres-
sive administrative burden of scrutinizing the specific
conduct giving rise to criminal offenses.
Id. at 1019 (internal citations and quotation marks omitted).
Other circuits follow the same approach. See Vuksanovic
v. United States Attorney General, 2006 WL 358659, at *2 (11th
Cir. Feb. 17, 2006) (“[T]he determination that a crime
involves moral turpitude is made categorically based on the
statutory definition or nature of the crime, not the specific
conduct predicating a particular conviction.”); Cuevas-
Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005) (using
a categorical approach to determine whether a crime
constitutes moral turpitude); Rodriguez-Castro v. Gonzales,
427 F.3d 316, 320 (5th Cir. 2005) (stating that, in determining
whether a crime is a crime of moral turpitude, “we look to
the statutory crime definition as interpreted by the state’s
courts, without regard to the particular circumstances
surrounding the specific offender’s violation”); Partyka v.
Attorney Gen. of the United States, 417 F.3d 408, 411 (3d Cir.
2005) (“Whether an alien’s crime involves moral turpitude
is determined by the criminal statute and the record of

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8 No. 05-2266
3 Mr. Abu Hashish did not submit to the IJ the charging papers
for either of his crimes.
conviction, not the alien’s conduct.”); Dalton v. Ashcroft, 257
F.3d 200, 204 (2d Cir. 2001) (“[W]e have long endorsed
categorical analyses of criminal statutes in the context of
deportation orders for crimes of moral turpitude.”). This
court, and other courts of appeals, repeatedly have held that
“theft” is a crime of moral turpitude. Soetarto v. INS, 516
F.2d 778, 780 (7th Cir. 1975) (“Theft has always been held to
involve moral turpitude, regardless of the sentence imposed
or the amount stolen.”); see also Cuevas-Gaspar, 430 F.3d at
1020 (“We have held that crimes of theft or larceny are
crimes involving moral turpitude.”); Nugent v. Ashcroft,
367 F.3d 162, 165 (3d Cir. 2004) (holding that the alien’s
convictions for thefts involved crimes of moral turpitude);
Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1997) (following
interpretation of BIA and other circuit courts in holding that
“the crime of theft is one involving moral turpitude”);
Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980) (“It
has been long acknowledged by this Court and every other
circuit that has addressed the issue that crimes of theft,
however they may be technically translated into domestic
penal provisions, are presumed to involve moral turpi-
tude.”).
Applying this approach to the present case, it is clear that
both of Mr. Abu Hashish’s crimes fall into this category. Mr.
Abu Hashish’s initial conviction is for theft of a recorded
sound under the Illinois theft statute, formerly codified at
Illinois Criminal Code 38-16-1. Although Mr. Abu Hashish’s
record of conviction does not reflect the subsection under
which Mr. Abu Hashish was convicted, 3 the subsections are
indistinguishable with respect to the state of mind required

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No. 05-2266 9
4 Although not designated in the record of conviction, Mr. Abu
Hashish describes this conviction as being for possession of stolen
property. 720 ILCS 5/16-1(a) states that “[a] person commits theft
when he knowingly: . . . [o]btains control over stolen property
knowing the property to have been stolen or under such circum-
stances as would reasonably induce him to believe that the
property was stolen . . . .” Even if Mr. Abu Hashish was convicted
under this subsection, receiving stolen property requires the same
state of mind, “knowingly,” as other crimes of theft, and has been
recognized as a crime of moral turpitude. See, e.g., Smirko v.
Ashcroft, 387 F.3d 279, 283 (3d Cir. 2004).
for conviction: Each of the subsections involves the knowing
exertion of authority or control over the property of another.
The same is true for Mr. Abu Hashish’s second conviction
in 2002. Mr. Abu Hashish was convicted of misdemeanor
theft under 720 ILCS 5/16-1(a), part of the recodified “theft”
chapter of the Illinois code, which involves “knowingly”
“obtain[ing] or exert[ing] unauthorized control over prop-
erty of the owner.” 4 Thus, both of Mr. Abu Hashish’s crimes
involve actions traditionally considered “theft” and,
therefore, are crimes of moral turpitude for purposes of the
immigration laws.
Despite this well-established approach, Mr. Abu Hashish
maintains that our recent decision in Abdelqadar v. Gonzales,
413 F.3d 668 (7th Cir. 2005), requires that we look at his
specific actions, as opposed to the elements of the crime
of conviction, to determine whether the crime commit-
ted involved moral turpitude. See Appellant’s Br. at 11-12.
We do not believe that Abdelqadar supports Mr. Abu Hash-
ish’s position. Although Abdelqadar is critical of some of this
court’s decisions discussing crimes of moral turpitude, the
court nevertheless applied the categorical approach in

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10 No. 05-2266
5 Mr. Abu Hashish also claims that, even if one of his crimes is
deemed a crime of moral turpitude, that crime falls within the
“petty crime” exception set forth at 8 U.S.C. § 1182(a)(2)(A)(ii).
Section 1182(a)(2)(A)(ii) provides that a crime of moral turpi-
tude shall not render an alien inadmissible (and, therefore,
ineligible for cancellation of removal) if:
(I) the crime was committed when the alien was under
18 years of age, and the crime was committed (and the
alien released from any confinement to a prison or correc-
tional institution imposed for the crime) more than 5 years
before the date of application for a visa or other documenta-
tion and the date of application for admission to the United
States, or
(II) the maximum penalty possible for the crime of which
the alien was convicted (or which the alien admits hav-
ing committed or of which the acts that the alien admits
having committed constituted the essential elements) did not
exceed imprisonment for one year and, if the alien
was convicted of such crime, the alien was not sentenced to a
term of imprisonment in excess of 6 months (regardless of
the extent to which the sentence was ultimately executed).
8 U.S.C. § 1182(a)(2)(A)(ii).
However, Mr. Abu Hashish concedes that, if both of his
crimes are crimes of moral turpitude, he may not invoke this
statutory exception. See Appellant’s Br. at 20 n.5. Consequently,
(continued...)
determining that Abdelqadar’s crimes—purchasing food
stamps from welfare recipients—fell within this category.
See Abdelqadar, 413 F.3d at 672 (“The goal is to determine
what the accused was convicted of, not what he did in fact,
so the scope of the inquiry is correspondingly limited.”).
Consequently, Abdelqadar does not suggest that a different
analysis should be applied in the present case. 5

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No. 05-2266 11
5 (...continued)
we have no occasion to consider whether either of his con-
victions, standing alone, may fall within this exception.
6 8 U.S.C. § 1229c(a)(1) states: “The Attorney General may permit
an alien voluntarily to depart the United States at the alien’s own
expense under this subsection, in lieu of being subject to proceed-
ings under section 1229a of this title or prior to the completion of
such proceedings, if the alien is not deportable under section
1227(a)(2)(A)(iii).”
7 8 U.S.C. § 1229c(b) states:
(b) At conclusion of proceedings
(1) In general
The Attorney General may permit an alien voluntarily
to depart the United States at the alien’s own expense if,
at the conclusion of a proceeding under section 1229a of
this title, the immigration judge enters an order granting
voluntary departure in lieu of removal and finds that—
(A) the alien has been physically present in the
United States for a period of at least one year imme-
diately preceding the date the notice to appear was
(continued...)
C. Voluntary Departure
Mr. Abu Hashish also argues that the BIA applied the
incorrect standard in determining whether he was
eligible for voluntary departure. Mr. Abu Hashish main-
tains that, because he requested voluntary departure
from the outset of his proceedings, the BIA should have
evaluated his voluntary departure claim according to the
standards for grants made “prior to the completion of . . .
proceedings,” as opposed to the standards for grants
of voluntary departure made “at the conclusion of a
proceeding.” See 8 U.S.C. § 1229c(a)(1) 6 & (b)(1). 7

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12 No. 05-2266
7 (...continued)
served under section 1229(a) of this title;
(B) the alien is, and has been, a person of good
moral character for at least 5 years immediately
preceding the alien’s application for voluntary
departure;
(C) the alien is not deportable under section
1227(a)(2)(A)(iii) or section 1227(a)(4) of this title;
and
(D) the alien has established by clear and con-
vincing evidence that the alien has the means to
depart the United States and intends to do so.
8 Mr. Abu Hashish does not identify, by reference to the Admin-
(continued...)
The immigration laws distinguish between a grant of
voluntary departure at these different stages of removal
proceedings. An IJ may grant voluntary departure prior to
the completion of proceedings so long as the alien is
not deportable based on the commission of an aggravated
felony, see id. § 1227(a)(2)(A)(iii), or based on involvement in
terrorist activities, see id. § 1227(a)(4)(B). Id. § 1229c(a)(1). An
IJ may grant voluntary departure at the conclusion of
proceedings as well; however, in order to do so, the IJ must
make additional findings that (1) the alien has been physi-
cally present in the United States for one year, (2) “the alien
is, and has been, a person of good moral character for at
least 5 years immediately preceding the alien’s application
for voluntary departure,” and (3) the alien has the means
and intent to depart the United States. Id. § 1229c(b)(1).
As noted above, Mr. Abu Hashish believes that, be-
cause he requested voluntary departure at the master
calendar hearing, 8 his request should have been evaluated

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No. 05-2266 13
8 (...continued)
istrative Record, when this request took place, and we have been
unable to locate the request in the record. However, the Govern-
ment does not dispute that the request was made, and, therefore,
we shall presume for purposes of this discussion that such a
request was indeed made at the master calendar hearing.
according to the standards for grants of departure made
prior to the completion of proceedings. However, the
regulations implementing § 1229c make clear that the timing
of a request, standing alone, does not guarantee that the
standards for grants of departure “prior to the completion
of such proceedings” will govern the request. 8 C.F.R.
§ 1240.26 provides in relevant part:
§ 1240.26 Voluntary departure—authority of the Ex-
ecutive Office for Immigration Review.
. . .
(b) Prior to completion of removal proceedings—
(1) Grant by the immigration judge.
(i) An alien may be granted voluntary departure
by an immigration judge pursuant to section
240B(a) of the Act only if the alien:
(A) Makes such request prior to or at the master
calendar hearing at which the case is initially
calendared for a merits hearing;
(B) Makes no additional requests for relief (or if
such requests have been made, such requests
are withdrawn prior to any grant of voluntary
departure pursuant to this section);
(C) Concedes removability;

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14 No. 05-2266
9 Mr. Abu Hashish does not argue that the INS exceeded its
authority in adopting the regulation.
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described
in section 101(a)(43) of the Act and is not
deportable under section 237(a)(4). . . .
Thus, Mr. Abu Hashish’s timely request, standing alone,
was not sufficient to make a grant of departure prior to
the conclusion of proceedings available to him. He also
was required to forego (or withdraw) requests for additional
relief and to waive all issues on appeal. Absent these
actions, which Mr. Abu Hashish did not take, an IJ could
not have granted Mr. Abu Hashish voluntary departure
“prior to the completion of . . . proceedings.” 9 Consequently,
we do not believe that the BIA applied the incorrect stan-
dard when it evaluated Mr. Abu Hashish’s eligibility for
voluntary departure based on the requirements for grants
“at the conclusion of a proceeding.”
Mr. Abu Hashish makes one final argument with re-
spect to the denial of voluntary departure. He maintains
that, even if his request was subject to the more stringent
requirements for grants of voluntary departure at the
conclusion of proceedings, see 8 U.S.C. § 1229c(b)(1), the BIA
did not employ the correct standard in determining whether
he had established “good moral character.” According to
Mr. Abu Hashish, the BIA should have looked beyond his
convictions to numerous other factors in making this
assessment. Again, however, Mr. Abu Hashish’s argument
ignores the statutory requirements. Although a precise
definition of “good moral character” is not set forth in the
statute, the statute does preclude a finding of “good moral

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No. 05-2266 15
character” under certain circumstances. 8 U.S.C. § 1101(f)
provides:
No person shall be regarded as, or found to be, a person
of good moral character who, during the period for
which good moral character is required to
be established, is, or was—
. . .
(3) a member of one or more of the classes of persons,
whether inadmissible or not, described in paragraphs
(2)(D), (6)(E), and (10)(A) of section 1182(a) of this
title; or subparagraphs (A) and (B) of section 1182(a)(2)
of this title and subparagraph (C) thereof of such section
(except as such paragraph relates to a single offense of
simple possession of 30 grams or less of marihuana), if
the offense described therein, for which such person
was convicted or of which he admits the commission,
was committed during such period . . . .
8 U.S.C. 1101(f)(3). For its part, § 1182(a)(2)(A) declares
inadmissible “any alien convicted of, or who admits hav-
ing committed, or who admits committing acts which
constitute the essential elements of . . . (I) a crime involv-
ing moral turpitude (other than a purely political offense) or
an attempt or conspiracy to commit such a crime.” Id.
§ 1182(a)(2)(A). Thus, as a matter of law, an alien convicted
of a crime of moral turpitude within the applicable time
period is not a person of good moral character. As we have
noted earlier, Mr. Abu Hashish’s 2002 conviction involved
a crime of moral turpitude and prevented him from estab-
lishing “good moral character” at the time his proceedings
concluded. The BIA, therefore, did not commit an error of
law in determining that Mr. Abu Hashish was statutorily
ineligible for voluntary departure based on this conviction.

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16 No. 05-2266
Conclusion
For the foregoing reasons, the petition for review is
denied, and the judgment of the BIA is affirmed.
P ETITION D ENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-06

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