Federal Animal Fighting Statute is Categorical CIMT (Matter of Ortega-Lopez)

 

Introduction: Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018)

On August 6, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018) [PDF version]. The decision addressed two distinct issues and ultimately reaffirmed two prior BIA precedents in resolving each issue.

First, the Board held that 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. In so doing, the Board reaffirmed its first precedent decision in the same case, Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) [PDF version].

Second, the Board held that an alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act (INA) — cancellation for non-permanent residents — if he or she has “been convicted of an offense under” section 237(a)(2)(A)(i) of the INA — the deportability provision for crimes involving moral turpitude within five years of admission — regardless of the “admission” requirement for the deportability provision and regardless of whether the offense occurred within 5 years of admission. In so doing, the Board reaffirmed its precedent decision in the Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) [PDF version].

In this article, we will focus on the Board's conclusion that the offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 USC 2156(a)(1) (2006) is categorically a crime involving moral turpitude -focusing on the analysis in the instant decision and in the 2013 Matter of Ortega-Lopez decision. We discuss the Board's conclusion about the crime involving moral turpitude rendering the respondent ineligible for cancellation of removal in the instant case in a separate article [see article].

Factual and Procedural History: 27 I&N Dec 382, 383-84; 26 I&N Dec. 99, 99-100

The instant 2018 Matter of Ortega-Lopez decision incorporated by reference the factual and procedural history discussed in the 2013 Matter of Ortega-Lopez decision. Thus, we will begin with the 2013 decision and then examine the subsequent developments addressed in the 2018 decision.

The respondent, a native and citizen of Mexico, entered the United States without being admitted or paroled at an unspecified time and place. 26 I&N Dec. at 99.

In 2009, the respondent was convicted in Federal court of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. 1256(a)(1) (2006). Id. The respondent was sentenced to one year of probation based on this conviction. Id. The maximum sentence that could have been imposed was a term of imprisonment of not more than one year. 27 I&N Dec. at 383.

The Department of Homeland Security (DHS) charged the respondent with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), which is the inadmissibility provision for aliens present in the United States without having been admitted or paroled. Thus, the removal charge was not based on the respondent's Federal criminal conviction. 26 I&N Dec. at 99. In removal proceedings, the respondent conceded that he was removable for being present in the United States without having been admitted or paroled, and he sought relief in the form of cancellation of removal for non-permanent residents under section 240A(b) of the INA. Id. Rather than consider the merits of the respondent's application, the Immigration Judge pretermitted the application, concluding that the respondent was ineligible for cancellation of removal under section 240A(b)(1)(C) of the INA because his criminal conviction was for an crime of moral turpitude under section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA. Id. at 99-100.

The respondent appealed from the Immigration Judge's decision to the BIA. The main argument on appeal was that the conviction in violation of 7 U.S.C. 2156(a)(1) was not categorically a crime involving moral turpitude, meaning that that statute encompassed both turpitudinous conduct and non-turpitudinous conduct. The Board found that 7 U.S.C. 2156(a)(1) categorically defined a crime involving moral turpitude, and it thus dismissed the respondent's appeal. Id. at 103-04.

The respondent appealed from the Board's 2013 precedent decision to the United States Court of Appeals for the Ninth Circuit. In a precedent decision, Ortega-Lopez v. Lynch, 834 F.3d 1015, 1018 (9th Cir. 2016) [PDF version], the Ninth Circuit remanded the record to the Board for consideration of whether sponsoring or exhibiting an animal in an animal fight venture always involves moral turpitude. 27 I&N Dec. at 383. The remand was based on the Ninth Circuit's precedent decision in Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) [PDF version], wherein the Court held 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.” 27 I&N Dec. at 383. In the Ninth Circuit's Ortega-Lopez decision, it stated that “harm to chickens, at first blush, [is] outside the normal realm” of a crime involving moral turpitude. Id.; quoting Ortega-Lopez v. Lynch, 834 F.3d at 1018.

The Board's instant 2018 precedent is its decision on remand from the Ninth Circuit. For the foregoing reasons, the Board reaffirmed its prior conclusion that 7 U.S.C. 2156(a)(1) categorically defines a crime involving moral turpitude, but with additional explanation addressing the Ninth Circuit's questions for remand. The Board also addressed, in light of intervening Ninth Circuit precedent, whether the respondent's conviction (having concluded the statute defined a crime involving moral turpitude) was an offense “under” 237(a)(2) of the INA, which, if so, would bar the respondent from eligibility for non-permanent resident cancellation of removal under section 240A(b)(1)(C). The Board concluded that the conviction was an offense “under” 237(a)(2), and we discuss that aspect of the Board's decision in a separate article [see article].

Respondent's Conviction in Violation of 7 U.S.C. 2156(a)(1) Was a Crime Involving Moral Turpitude: 27 I&N Dec. 382, 384-91

BIA and Ninth Circuit Approaches to Crimes Involving Moral Turpitude: 27 I&N Dec. at 384-85

The Board employed the “categorical approach” to determine whether the elements of the statute of conviction were a categorical match with the generic definition of a crime involving moral turpitude. That is, the Board considered whether all conduct reached by the statute of conviction would involve moral turpitude. The Board cited to its precedent to explain the approach employed: “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.” Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016) [PDF version] [see article].

In order to constitute a crime involving moral turpitude, an offense must have the elements of a culpable mental state and reprehensible conduct. Matter of Jimenez-Cedillo, 27 I&N Dec. 1, 3 (BIA 2017) [PDF version] [see article], remanded on other grounds, 855 F.3d 292, 300 (4th Cir. 2018). The Board has previously defined “reprehensible” as referring to conduct that 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. The Board has also recognized that “contemporary moral standards [] may be susceptible to change based on the prevailing views in society.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA 1999) [PDF version].

The Board noted that the Ninth Circuit has deferred to the Board's when applying its definition of crime involving moral turpitude 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) [PDF version]. The Board noted that, notwithstanding the Ninth Circuit's deference to the Board's approach to crimes involving moral turpitude, the Ninth Circuit has subsequently applied its own definition of “crime involving moral turpitude” in reviewing the Board's determinations. For example, in the Ninth Circuit's Ortega-Lopez decision, it recognized that crimes involving moral turpitude “fall into two categories: '[1] those involving fraud and 2] those involving grave acts of baseness and depravity.'” Ortega-Lopez, 834 F.3d at 1018 (internal quotation omitted). In Nunez, the Ninth Circuit held that offenses that fall into the second category — grave acts of baseness and depravity — almost always involve an intent to injure, an injury to another person, or an act affecting a protected class of victims. Nunez, 594 F.3d at 1131. Thus, the Ninth Circuit remanded for consideration of whether 7 U.S.C. 2156(a)(1), which clearly does not involve fraud, involves an intent to injure, an injury to another person, or an act affecting a protected class of victims.

BIA Addresses Ninth Circuit's Question: 27 I&N Dec. at 386-87

The Board described the Ninth Circuit's categories for non-fraud offenses in Nunez as “useful guideposts,” but it added that “we have never considered our determination whether a crime involves moral turpitude to be strictly limited to the foregoing categories.” The Board noted that the Ninth Circuit itself has held that the Nunez categories are “not exhaustive.” Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir. 2016) [PDF version]. From this, the Board reasoned that “offenses that fall into these categories are crimes involving moral turpitude, but the definition of moral turpitude is broader.” For example, the Ninth Circuit held that a prostitution statute criminalizing consensual sex acts by adults was a crime involving moral turpitude. Rohit v. Holder, 670 F.3d 1085, 1088-91 (9th Cir. 2012) [PDF version]. Similarly, the Ninth Circuit held that a statute covering incest which reached consensual sex acts by adults of a certain degree of consanguinity was a crime involving moral turpitude. Gonzalez-Alvarado v. INS, 39 F.3d 245, 246-47 (9th Cir. 1994) [PDF version].

The Board reasoned that Nunez did not preclude considering whether 7 U.S.C. 2156(a)(1) is a crime involving moral turpitude based notwithstanding that it does not involve fraud or an intent to injure, an actual injury to another person, or an act affecting a protected class of victims. The Board added that if its understanding of Nunez was incorrect — that is, that it should be construed as precluding all non-fraud offenses not involving the intent to injure, injury to another person, or acts affecting a protected class of victims from the ambient of “crimes of moral turpitude — it “would respectfully disagree with the Ninth Circuit's approach.” The Board explained its reasoning:

[T]he 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 term and the myriad of Federal and State statutes potentially at issue.'” (Internal quotations and citations omitted.)

The Board held that to adopt such an exclusionary approach would vitiate its ability assess each offense on a case-by-case basis, which is the approach recognized and approved by the en banc Ninth Circuit in Marmolejo-Campos.

The Board referred back to the Ninth Circuit decisions in Rohit and Gonzalez-Alvarado and articulated its position that “conduct such as prostitution and incest is so contrary to the standards of a civilized society as to be morally reprehensible.” The Board noted that “[t]he minimum conduct covered by such crimes generally relates to sexual acts committed by consenting adults.” It stated that “[w]e 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.” Regarding the statute of conviction at issue in the instant case, the Board held that “[w]e consider the crime of sponsoring or exhibiting an animal in an animal fighting venture to be of a similar nature.”

For the foregoing reasons, the Board concluded “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.” The Board further stated that it would apply this holding nationwide, including in the Ninth Circuit. Through citations to other Board precedents, the Board invoked the Supreme Court of the United States' precedent in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) [PDF version], which requires circuit courts to defer to an agency's interpretation of an ambiguous statutory provision, even if the agency's interpretation conflicts with the court's previous construction of the ambiguous statutory provision, provided that the statutory provision is, in fact, ambiguous, and the agency's construction of the provision is reasonable.

Statute Categorically Defined a Crime Involving Moral Turpitude: 27 I&N Dec. at 387-91

The statute of conviction, 7 U.S.C. 2156(a)(1), makes it “unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” The use of the word “knowingly” means that the statute, by its own terms, only reaches intentional conduct. Thus, because the statute requires a culpable mental state, the only remaining question for the Board was whether it criminalizes only “reprehensible” conduct. For the following reasons, the Board would reaffirm its decision on the issue from its 2013 decision.

In Matter of Ortega-Lopez, 26 I&N Dec. at 101, the Board held that “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.” The Board added to its analysis in the instant decision: “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.” The Board noted that the legislative history of the statute of conviction further suggested that Congress saw fit to criminalize participation in animal fighting events because of its inherent depravity and its negative effect on society.

The Board explained that 7 U.S.C. 2156(a)(1) is not limited to animal fights involving domestic animals, but also covers cockfighting. The Board reaffirmed its prior holding that the statute's covering of cockfighting does not alter the conclusion that the statute categorically defines a crime involving moral turpitude. The Board referenced Congressional testimony detailing the brutality of cockfighting. While the Board noted in a footnote that it agreed with several amici briefs to the extent that animal fighting ventures involving domesticated animals are especially abhorrent, it held that “[t]he immorality that exists in violation of [section] 2156(a)(1) results from the interrelationship of the suffering that is experienced by the animals with the celebration in that suffering by those involved in the animal fighting ventures.”

The Board addressed the fact that activities such as hunting and food production also harm animals. To this point, it explained that it was “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.” In any case, the Board observed that the statute of conviction — 7 U.S.C. 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).

The Board was also not persuaded by arguments that the statute was overbroad in “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 Board found, instead, that “[t]he statute plainly speaks to sponsorship of a specific animal, which does not encompass financial contributions, directly or indirectly, to the event itself.” The Board added that, after the respondent's conviction, Congress amended the broader statute to criminalize attending an animal fighting venture. See 7 U.S.C. 2156(a)(2) (Supp. II 2014). The Board noted that it did not need to decide whether a conviction under that statute would be for a crime involving moral turpitude.

The Board addressed the respondent's final argument — that cockfighting is not criminalized in every jurisdiction, unlike dogfighting. The respondent, and some amici, noted that cockfighting is not illegal in Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. The Board was not persuaded: “[T]he fact that several territories of the United States have not updated their laws to ban some forms of animal fighting does not change our conclusion regarding the profoundly degrading nature of such conduct.” The Board noted that notwithstanding the laws of those four U.S. territories, all 50 states and the District of Columbia criminalize cockfighting in addition to the Federal government. In any event, the Board added, other offenses which involve moral turpitude, such as prostitution, are also not criminalized in every jurisdiction of every state. Despite this, “[p]rostitution is unquestionably a crime involving moral turpitude under the immigration laws.” Citing to Matter of W-, 4 I&N Dec. 401 (C.O. 1951) [see article].

The Board summarized its conclusion regarding the animal fighting statute:

In sum, sponsoring or exhibiting an animal in an animal fighting venture is contrary to the most basic moral standards that exist in our civilized society. This activity, which serves no utilitarian purpose, leads to the extreme suffering or death of the animals that are forced to fight for the base entertainment and enjoyment of the people involved. We therefore conclude that the respondent's participation in an animal fighting venture as proscribed by 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude.

The Board then moved to examine whether the offense barred the respondent from cancellation of removal under section 240A(b)(1)(C) of the INA as an offense “under section 212(a)(2), 237(a)(2), or 237(a)(3).” We address this separate part of the decision in our companion article [see article].

Conclusion

The Board's decision does not break new ground, instead reaffirming its prior conclusion that 7 U.S.C. 2156(a)(1) is a categorical crime involving moral turpitude. The most significant aspect of the decision is the Board's rejection of a narrow reading of the Ninth Circuit's own crime involving moral turpitude standard for acts not involving fraud. The Board instead makes clear that it does not see the definition of crime involving moral turpitude as being limited to acts involving fraud, acts that are intended to injure another, acts that do injure another, or acts aimed at harming a protected group of people. The decision broadly defines direct involvement in animal fighting ventures as inherently turpitudinous, but it does not address degrees of lesser involvement, such as merely attending an animal fighting event. The Board used as an example of a crime involving moral turpitude offenses of incest or prostitution involving consenting adults. While this does not diverge from past Board precedent, it is perhaps notable that the Board chose to emphasize its rule on prostitution on multiple occasions in its decision in the instant case.

An alien in removal proceedings should always consult with an experienced immigration attorney. An experienced attorney will be able to assess the facts of the particular case and determine how the alien should best proceed.

We discuss issues relating to criminal aliens [see category] and defense in removal proceedings [see category] in separate sections on site.