Matter of Agustin ORTEGA-LOPEZ (agency decision, August 6, 2018)

Plain-English summary

The Board reconsidered a Mexican respondent's eligibility for cancellation of removal after he was convicted under federal law for sponsoring or exhibiting an animal in an animal fighting venture. The Board held that the offense is categorically a crime involving moral turpitude because it requires knowing conduct that celebrates animal suffering for personal enjoyment. It also reaffirmed that the cancellation bar applies to a qualifying offense under the referenced removal provisions regardless of whether the respondent was admitted or whether the offense occurred within five years of admission. The Board dismissed the appeal and upheld the denial of cancellation of removal.

Decision snapshot

• Cited authorities: 7 U.S.C. § 2156(a)(1); 8 U.S.C. §§ 1229b(b)(1)(C), 1227(a)(2)(A)(i), and 1182(a)(6)(A)(i); 8 C.F.R. § 1240.8(d)
• Outcome: The appeal was dismissed, and the denial of cancellation of removal was upheld.
• Key point: Knowingly sponsoring or exhibiting an animal in an animal fighting venture is categorically a crime involving moral turpitude and bars cancellation of removal under the Board's cross-reference rule.

Full text (BIA official public release)

Cite as 27 I&N Dec. 382 (BIA 2018)                          Interim Decision #3931




        Matter of Agustin ORTEGA-LOPEZ, Respondent
                           Decided August 6, 2018

                        U.S. Department of Justice
                 Executive Office for Immigration Review
                     Board of Immigration Appeals

(1) The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006) is categorically a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), reaffirmed. (2) An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), for having “been convicted of an offense under” section 237(a)(2)(A)(i) of the Act, 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012), irrespective of both the general “admission” requirement in section 237(a) and the temporal (within 5 years of admission) requirement in section 237(a)(2)(A)(i)(I). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), reaffirmed. FOR RESPONDENT: N. David Shamloo, Esquire, Portland, Oregon FOR THE DEPARTMENT OF HOMELAND SECURITY: David A. Landau, Senior Litigation Coordinator BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members. MALPHRUS, Board Member:

In a decision dated February 14, 2011, an Immigration Judge found the

respondent removable on his own admissions under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is present in the United States without being admitted or paroled, and denied his application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006). We dismissed the respondent’s appeal in Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), holding that his conviction for sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006) 1 is categorically for a crime involving moral turpitude, which is an “offense

1
At the time of the respondent’s offense in March 2007, 7 U.S.C. § 2156(a)(1) provided that it is “unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture, if any animal in the venture was moved in interstate or foreign commerce.” “[T]he term ‘animal fighting venture’ means any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment.” 7 U.S.C. § 2156(g)(1).

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under” section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), that renders him ineligible for relief under section 240A(b)(1)(C).2
The case is now before us on remand from the United States Court of
Appeals for the Ninth Circuit for further consideration of the question whether animal fighting in violation of 7 U.S.C. § 2156(a)(1) is a crime involving moral turpitude. We received supplemental briefing on this issue.3 Ortega-Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016). We have also received supplemental briefing addressing the proper interpretation of section 240A(b)(1)(C) of the Act in light of the Ninth Circuit’s intervening decision in Lozano-Arredondo v. Sessions, 866 F.3d 1082 (9th Cir. 2017). The respondent’s appeal will again be dismissed.

           I. FACTUAL AND PROCEDURAL HISTORY

We incorporate by reference the factual and procedural history set forth

in Matter of Ortega-Lopez, 26 I&N Dec. at 99–100, but will also summarize relevant parts of our decision. The respondent is a native and citizen of Mexico who was convicted in 2009 of violating 7 U.S.C. § 2156(a)(1), for which he was sentenced to a year of probation. At the time the offense was committed, it carried a potential sentence to a term of imprisonment for not more than 1 year under 7 U.S.C. § 2156(e) (2006).4 In our prior decision, we affirmed the Immigration Judge’s ruling that the conduct proscribed by
§ 2156(a)(1) categorically involves moral turpitude.
On remand, the Ninth Circuit has asked us to further consider whether
sponsoring or exhibiting an animal in an animal fighting venture involves moral turpitude in light of its statement in Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010), that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” See Ortega-Lopez, 834 F.3d at 1018. The court also stated that the portion of
§ 2156(a)(1) pertaining to “harm to chickens is, at first blush, outside the normal realm” of a crime involving moral turpitude. Id. While we respect the considerations raised on remand, our further review of this issue leads us

2
Section 240A(b)(1)(C) of the Act provides that cancellation of removal under section 240A(b)(1) is not available to an alien who has “been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3)” of the Act. (Emphasis added.) 3 We acknowledge and appreciate the thoughtful arguments submitted by the parties and amici curiae in response to our supplemental briefing requests. 4 On May 3, 2007, the penalty provision was enhanced and moved to a different section at 18 U.S.C. § 49 (Supp. I 2007). See Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. No. 110-22, § 3(5), 121 Stat. 88, 89.

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to the same result. We will therefore clarify our rationale for concluding that moral turpitude necessarily inheres in all violations of this statute.
Because of the Ninth Circuit’s intervening decision in Lozano-Arredondo,
we must also address whether the respondent is barred from relief by section 240A(b)(1)(C) of the Act as an alien convicted of an “offense under” section 237(a)(2) of the Act—specifically, section 237(a)(2)(A)(i).5 In that decision, the court disagreed with our conclusion in Matter of Cortez, 25 I&N Dec. 301, 307–08 (BIA 2010), that the plain language of section 240A(b)(1)(C) provides that only the offense-specific characteristics contained in the cross-referenced sections of the Act (that is, the listed generic offense and any corresponding sentencing requirement) are applicable in determining whether an applicant has been convicted of an “offense under” one of those sections. The Ninth Circuit found the statutory language to be ambiguous and held that, because Matter of Cortez was based on the perceived unambiguous language of the statute, we did not consider any other possible interpretations. Accordingly, the court has asked us “to exercise [our] expertise and discretion” in interpreting the ambiguity. Lozano-Arredondo, 866 F.3d at 1089. We will reaffirm our decision in Matter of Cortez and further explain why we view that interpretation as the most reasonable reading of the statute.

                              II. ANALYSIS

                   A. Crime Involving Moral Turpitude

To determine whether a conviction is for a crime involving moral

turpitude, we employ the “categorical approach” by “comparing the elements of the . . . offense to those of the generic [definition of a crime involving moral turpitude] to determine if there is a categorical match.” Escobar v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017) (citations omitted). “This
[approach] requires us to focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, rather than on the facts underlying the respondent’s particular violation of that statute.”

5
The respondent’s conviction is not for an “offense under” section 212(a)(2)(A)(i)(I) of the Act because his crime qualifies for the petty offense exception in section 212(a)(2)(A)(ii)(II). See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 593 (BIA 2003) (holding that a conviction for a crime involving moral turpitude that qualifies as a petty offense is not for an “offense under” section 212(a)(2)(A)(i)(I)). However, pursuant to Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), the respondent is nevertheless ineligible for relief under section 240A(b)(1)(C) of the Act as an alien convicted of an “offense under” section 237(a)(2)(A)(i).

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Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); see also Escobar, 846 F.3d at 1024.
To constitute a crime involving moral turpitude, an offense must have
two essential elements: a culpable mental state and reprehensible conduct. Matter of Jimenez-Cedillo, 27 I&N Dec. 1, 3 (BIA 2017), remanded on other grounds, 885 F.3d 292, 300 (4th Cir. 2018); see also Matter of Louissaint, 24 I&N Dec. 754, 756–57 (BIA 2009) (“[A] crime involving moral turpitude involves reprehensible conduct committed with some degree of scienter, either specific intent, deliberateness, willfulness, or recklessness.” (citation omitted)). Conduct is “reprehensible” if it 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.” Matter of Jimenez-Cedillo, 27 I&N Dec. at 3 (citation omitted). This determination regarding the nature of a crime is governed by “contemporary moral standards and may be susceptible to change based on the prevailing views in society.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA 1999). The Ninth Circuit has deferred to the manner in which we apply this definition through case-by-case adjudications in order to “assess[] the character, gravity, and moral significance of the conduct” in question. Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (en banc). As the court explained, this approach allows the Board to “draw[] upon its expertise as the single body charged with adjudicating all federal immigration cases” and “is precisely the type of agency action the Supreme Court instructs is entitled to . . . deference.” Id.; see also Mendoza v. Holder, 623 F.3d 1299, 1303 (9th Cir. 2010). At the same time, the Ninth Circuit’s deference to our interpretation and application of the various “crime involving moral turpitude” provisions of the Act has not been universal in decisions issued after Marmolejo-Campos. A number of recent decisions employ the court’s “own . . . definition of moral turpitude.” Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir. 2016) (citations omitted); see also, e.g., Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212 n.7 (9th Cir. 2013). Under its definition, the Ninth Circuit recognizes that crimes involving moral turpitude “fall into two categories: ‘[1] those involving fraud and [2] those involving grave acts of baseness or depravity.’” Ortega-Lopez, 834 F.3d at 1018 (alterations in original) (quoting Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012)). The Ninth Circuit has further explained that offenses that do not involve fraud and therefore fall into the second category “almost always” involve an intent to injure, an injury to a person, or an act affecting a protected class of victims. Id. (quoting Nunez, 594 F.3d at 1131). The Ninth Circuit remanded for us to consider whether a violation of § 2156(a)(1), an offense that does not involve fraud, involves one of these three circumstances.

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While we recognize that these principles may serve as useful guideposts, we have never considered our determination whether a crime involves moral turpitude to be strictly limited to the foregoing categories. As the Ninth Circuit has acknowledged, these categories are “not exhaustive.” Rivera, 816 F.3d at 1074; see also Nunez, 594 F.3d at 1131 & n.4. In other words, offenses that fall into these categories are crimes involving moral turpitude, but the definition of moral turpitude is broader. Indeed, the Ninth Circuit has found that some offenses that do not involve fraud are crimes involving moral turpitude even in the absence of an intent to injure, an injury to persons, or a protected class of victims. See, e.g., Rohit v. Holder, 670 F.3d 1085, 1088–91 (9th Cir. 2012) (holding that the violation of a prostitution statute that covered consensual sex acts by adults was a crime involving moral turpitude); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246–47 (9th Cir. 1994) (per curiam) (concluding that the offense of incest under a statute that covered consensual sex acts by adults of a certain degree of consanguinity was a crime involving moral turpitude). If our understanding in this regard is incorrect, we would respectfully disagree with the Ninth Circuit’s approach. As we explained in Matter of Cortes Medina, 26 I&N Dec. 79, 82 (BIA 2013), the phrase “crime involving moral turpitude” is not amenable to a clear-cut comprehensive definition that identifies certain offenses to the exclusion of all others. Such an approach “is unrealistic given the nature of this broad legal term and the myriad Federal and State statutes potentially at issue.” Id.; see also Matter of Ortega-Lopez, 26 I&N Dec. at 100 n.2. To hold otherwise would eviscerate our ability to “assess[] the character, gravity, and moral significance of the conduct” on a case-by-case basis and “draw[] upon [our] expertise,” Marmolejo-Campos, 558 F.3d at 910, to decide whether the specific offense at issue 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.” Matter of Silva-Trevino, 26 I&N Dec. at 833 (citations omitted). In our view, conduct such as prostitution and incest is so contrary to the standards of a civilized society as to be morally reprehensible. See Rohit, 670 F.3d at 1088–91; Gonzalez-Alvarado, 39 F.3d at 246–47. The minimum conduct covered by such crimes generally relates to sexual acts committed by consenting adults. We recognize these crimes as morally reprehensible, not on account of the presence of harm or the need to protect a vulnerable segment of society, but because of the socially degrading nature of commercialized sexual services and incestuous sexual relations. These crimes “offend[] the most fundamental values of society.” Rivera, 816 F.3d at 1075 (alteration in original) (quoting Robles-Urrea, 678 F.3d at 705). We consider the crime of sponsoring or exhibiting an animal in an animal fighting venture to be of a similar nature.

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For these reasons, we conclude that in assessing whether an offense that does not involve fraud is a crime involving moral turpitude, the absence of an intent to injure, an injury to persons, or a protected class of victims is not determinative. We find it appropriate to apply this rule nationwide, including in the Ninth Circuit, because a single rule furthers the paramount need for “uniformity in the administration of immigration laws.” Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004); see also Matter of D-R-, 27 I&N Dec. 105, 108 (BIA 2017) (“The agency’s interpretation of a statute applies, regardless of the circuit court’s contrary precedent, unless ‘the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.’” (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005))). We now turn to the question whether the respondent’s offense is a crime involving moral turpitude. Under 7 U.S.C. § 2156(a)(1), it is “unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” (Emphasis added.) This offense indisputably involves intentional conduct. The issue before us then is whether the conduct proscribed by the statute is reprehensible. See Matter of Leal, 26 I&N Dec. 20, 24–25 (BIA 2012); Matter of Ruiz-Lopez, 25 I&N Dec. 551, 551 (BIA 2011) (“Where knowing or intentional conduct is an element of a morally reprehensible offense, we have found moral turpitude to be present.”). We respectfully reaffirm our conclusion that knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude. In this decision, we clarify our view that, because the conduct encompassed in a violation of § 2156(a)(1) celebrates animal suffering for one’s personal enjoyment, it transgresses the socially accepted rules of morality and breaches the duty owed to society in general. See United States v. Stevens, 559 U.S. 460, 477 (2010) (noting that “cockfighting [has] long
[been] considered immoral in much of America”).
As we explained in our prior decision, “animal fighting . . . is a spectacle of animal suffering engaged in purely for entertainment, the entire purpose of which is the intentional infliction of harm or pain on sentient beings that are compelled to fight, often to the death.” Matter of Ortega-Lopez, 26 I&N Dec. at 101 (citation omitted) (internal quotation mark omitted). We also generally described the brutal and vicious nature of dogfighting and cockfighting, which leads to painful injuries and the extreme suffering and often death of the animals, all of which is brought upon for the personal enjoyment of those involved. Id.; see also Animal Fighting Prohibition Enforcement Act of 2005: Hearing on H.R. 817 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary,

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109th Cong. 56, 57 (2006) (statement of W. Ripley Forbes, Dir. of Gov’t Affairs, Am. Humane Soc’y) [hereinafter Hearing on H.R. 817]. It is the exhibition and celebration of suffering in animal fighting events that runs contrary to basic standards of decency and humanity. Such acts of senseless brutality, which demonstrate a reprehensible desire to relish in the infliction of pain, have long been recognized as degrading, not only to the participants personally, but to all of society. See Commonwealth v. Tilton, 49 Mass. (8 Met.) 232, 234–35 (1844) (describing animal fighting as “barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who participate in it, and those who witness it”). It desensitizes spectators to brutality and violence and teaches “that inflicting pain is an acceptable form of amusement.” Hearing on H.R. 817, supra, at 57 (discussing significant concerns regarding developing children who attend these events); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973) (stating that animal fighting events have been outlawed because they “debased and brutalized the citizenry who flocked to witness such spectacles” (citation omitted) (internal quotation mark omitted)). This view is consistent with the legislative history supporting the enactment of § 2156 in 1976. See H.R. Rep. No. 94-801, at 10 (1976) (noting that animal fighting is “dehumanizing, abhorrent, and utterly without redeeming social value”). The fact that the prohibition of animal fighting under § 2156(a)(1) is not limited to fights with domesticated animals and that the statute covers chickens, which are the type of animals involved in cockfighting, does not alter our conclusion. 6 Cockfighting is not a benign activity. It involves attaching a knife or “ice-pick like devices called gaffes . . . to all of the birds’ legs to enhance the bloodletting, gouged eyes, punctured lungs, all sorts of grievous wounds” for the entertainment of the people involved in the events. Hearing on H.R. 817, supra, at 5 (testimony of Wayne Pacelle, President and CEO, Humane Soc’y of the U.S.). The immorality that exists in a violation of § 2156(a)(1) results from the interrelationship of the suffering that is

6
We agree with the amici that argue that animal fighting ventures involving domesticated animals are especially abhorrent because of the unique relationship humans share with such animals. However, moral turpitude inheres in knowingly celebrating the suffering of any animal forced to participate in the type of activity covered in 7 U.S.C. § 2156(g)(5). See Matter of Ortega-Lopez, 26 I&N Dec. at 104 n.4 (“[O]ur determination that a violation of 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude is not dependent on the type of animal involved.”). Another common form of animal fighting not discussed in our prior decision is hog-dog fights where “boars’ tusks are cut off and they are placed in a pen” with pit bulls, often resulting “in the ears of the boar being torn off or their jowls being ripped open.” Hearing on H.R. 817, supra, at 11 (statement of Wayne Pacelle, President and CEO, Humane Soc’y of the U.S.).

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experienced by the animals with the celebration in that suffering by those involved in the animal fighting ventures.7 We also recognize that animals serve utilitarian purposes, such as for hunting and food production. To this end, there may be certain practices that are inevitably harmful to animals that are regarded by society as necessary or acceptable to accomplish the underlying utilitarian objective. See generally Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 Rutgers L. Rev. 721, 739–40 (1994). However, we are not persuaded that such tolerance undercuts or otherwise reduces the inhumanity in participating in a venture whose purpose is to objectify the suffering of animals for personal pleasure. See Animal Fighting Prohibition Enforcement Act of 2007: Hearing on H.R. 137 Before the Subcomm. On Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 46 (2007) (testimony of Wayne Pacelle) (“[T]here are lots of controversial and tough moral questions about how we treat animals in society, but staged animal fights where people are putting animals in a pit to fight to injury or death just for the amusement . . . is not a tough moral question.”). Moreover, the conduct proscribed by § 2156(a)(1) specifically excludes from its coverage ventures “the primary purpose of which involves the use of one or more animals in hunting another animal.” 7 U.S.C. § 2156(g)(1). With respect to the contentions of the respondent and amicus regarding the breadth of § 2156(a)(1), we are not persuaded that one could “sponsor or exhibit an animal” in an animal fighting venture by merely paying a fee to attend an animal fight or being a vendor at such an event. The statute plainly speaks to the sponsorship of a specific animal, which does not encompass financial contributions, directly or indirectly, to the event itself. See United States v. Kingrea, 573 F.3d 186, 192 (4th Cir. 2009) (“[T]he act that Congress has determined to be an unlawful act [under § 2156(a)(1)] is the sponsoring of ‘an animal in’ an animal fighting venture, not simply sponsoring a fighting venture.”). 8 Furthermore, subsequent to the

7
The parties and amici do not meaningfully dispute that all the animals covered by the definition of an “animal” in § 2156(g)(5) are sentient creatures capable of experiencing pain and suffering. See generally Gary L. Francione, Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein, 2006 U. Chi. Legal F. 231, 234 (2006) (“[T]here is no serious doubt that . . . cows, pigs, [and] chickens . . . are capable of experiencing pain and suffering.”). 8 The cases that the respondent and amicus rely on in this regard are not persuasive. Some appear to be detailing convictions under 18 U.S.C. § 2 (2012) for aiding and abetting a violation of 7 U.S.C. § 2156(a)(1), whereas the respondent was convicted of the substantive offense under § 2156(a)(1). See, e.g., United States v. Olney, No. 1:13-CR-2094-TOR-19,