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) 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



*
 Pursuant to Fed. R. App. P. 43(c), we have substituted Alberto
Gonzales for John Ashcroft as the named respondent.
2                                                   No. 04-1775

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.
No. 04-1775                                                     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.” 

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.1
  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.


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.
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 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,

, 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, 

, 635 (3d Cir.
2002); Nguyen v. Reno, 

, 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, 

, 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, 

, 187 (5th Cir. 1996). However, if the
statute is “divisible,” that is, divided into “discrete subsec-
tions of acts that are and those that are not” crimes involv-
ing moral turpitude, then an alien convicted under a
subsection that includes only crimes involving moral
turpitude may be found removable. 

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, 

, 1215 (11th
Cir. 2002); Medina v. United States, 

, 227 (4th
Cir. 2001); Maghsoudi v. INS, 

, 14 (1st Cir. 1999);

. 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, 

, 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 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, 

, 666 (7th Cir. 2002). In
contrast, crimes that are mala prohibita encompass conduct
that “not everyone knows is criminal.” 

acknowl-
edged 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. 

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

, 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, 

,
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 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, 

, 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, 

, 337-38
(5th Cir. 2003); see also Goldeshtein v. INS, 

, 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,

, 262 (5th Cir. 2002); see also 

(“Generally a crime involving dishonesty or false state-
ment 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,

, 437 (6th Cir. 1993) (finding moral turpitude
where alien made false statements in driver’s license
application). Padilla was convicted of knowingly furnish-
ing false information, a crime that specifically entails
dishonesty and thus implicates moral turpitude. More-
over, 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.” 

.
  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.”

. 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, 

, 197 (1st Cir. 1994). Similarly,
money laundering was found to involve moral turpitude
where it involved “intentionally concealing the proceeds
of illegal drug sales.” 

. 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 mani-
festation of an evil intent.” 

. 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 

, 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 obstruct-
ing 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