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.

The first part of the decision concerns whether 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. The Board had held in Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) [PDF version]. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reaffirmed its conclusion from 2013 in the instant Matter of Ortega-Lopez. We discuss this part of the Board’s decision in a separate article [see article].

Having concluded that the respondent’s conviction in violation of 7 U.S.C. 2156(a)(1) (2006) was a categorical crime involving moral turpitude, the Board proceeded to address the second issue in the case — whether that conviction barred the respondent from non-permanent resident cancellation of removal under section 240A(b)(1)(C) for having “been convicted of an offense under” section 237(a)(2)(A)(i) of the INA. Specifically, the question before the Board was whether the respondent’s conviction was “under” section 237(a)(2)(A)(i)(I) of the INA, which, in its normal deportability context, requires both that the alien have been admitted and that the conviction have occurred within five years of admission. Notwithstanding contrary Ninth Circuit precedent, the Board reaffirmed its precedent in Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) [PDF version], and held that the respondent’s conviction was indeed “under” section 237(a), thereby barring him from relief in the form of non-permanent resident cancellation of removal. This article will focus on this second part of the Board’s decision.

Factual and Procedural History and the First Part of the Board’s Decision: 27 I&N Dec. 382, 383-91; 26 I&N Dec. 99, 99-100

In our companion article on Matter of Ortega-Lopez, we discuss the factual and procedural history of the case — including the 2013 Matter of Ortega-Lopez decision — in detail [see section]. Here, we will discuss the factual and procedural history, as well as the first part of the Board’s decision in the instant matter, to the extent necessary to set up the second issue under consideration by the Board.

The respondent, a native and citizen of Mexico, entered the United States without inspection. Within five years of his illegal entry, 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. 2156(a)(1) (2006). The respondent was subsequently charged as removable for being present in the United States without having been admitted or paroled under the inadmissibility provision found at section 212(a)(6)(A)(i). The respondent conceded removability but sought relief in the form of non-permanent resident cancellation of removal. The immigration judge concluded that the respondent was ineligible for non-permanent resident cancellation of removal under section 240A(b)(1)(C) — which classifies any alien convicted of an offense “under” section 212(a)(2), 237(a)(2), or 237(a)(3) — as ineligible for non-permanent resident cancellation, based on his Federal conviction under 7 U.S.C. 2156(a)(1).

In the Board’s 2013 decision, it concluded that the respondent had been convicted of a crime involving moral turpitude, that the offense was an offense “under” section 237(a)(2), and that he was thus ineligible for cancellation of removal. The Ninth Circuit remanded the record to the Board in Ortega-Lopez v. Lynch, 834 F.3d 1015, 1018 (9th Cir. 2016) [PDF version], for consideration of whether sponsoring or exhibiting an animal in an animal fight venture always involves moral turpitude. In the instant 2018 decision, the Board reaffirmed its conclusion that the respondent’s conviction was for a crime involving moral turpitude, for reasons we examine in our companion article [see article].

Having concluded that the respondent’s conviction under 7 U.S.C. 2156(a)(1) was for a crime involving moral turpitude, the Board determined that it must also address whether it also constituted an “offense under” section 237(a)(2)(A)(i) of the INA. If it was, then the respondent was barred from non-permanent resident cancellation of removal under section 240A(b)(1)(C). The Board had held in Matter of Cortez, 25 I&N Dec. 301, 307-08 (BIA 2010), that in determining whether a conviction is an “offense under” section 237(a)(2)(A)(i) for cancellation purposes, the only pertinent issue was whether the offense was a crime involving moral turpitude, and not whether the alien was admitted or whether the underlying conduct occurred within five years of admission, as would be required in order for a non-permanent resident alien who had been convicted of the same offense to be removable under section 237(a)(2)(A)(i). The Ninth Circuit in a subsequent precedent decision in Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1089 (9th Cir. 2018) [PDF version], disagreed with Matter of Cortez to the extent that the Board had concluded that the language of section 240A(b)(1)(C) was unambiguous, and that the Board’s construction of the statute was the only permissible construction of the statute. Having found that the Board erred in reading the pertinent portion of section 240A(b)(1)(C) as unambiguous, the Ninth Circuit remanded for consideration of whether there were other possible interpretations of the statute.

In this article, we will examine only the Board’s consideration of whether its reading of section 240A(b)(1)(C) in Matter of Cortez was correct in light of the Ninth Circuit’s intervening decision in Lozano-Arredondo. For the forthcoming reasons, the Board reaffirmed its conclusion in Matter of Cortez, but added an expanded explanation of why that conclusion was the most reasonable reading of the statute in light of the Ninth Circuit’s precedent.

Understanding the Main Issue: 27 I&N Dec. 382, 391-92

In order to be eligible for non-permanent resident cancellation removal under section 240A(b)(1) of the INA, an applicant must demonstrate that he or she has not been “convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3).” INA 240A(b)(1)(C). The question before the Board was whether the phrase “offense under” incorporates those sections in full or only in part. Specifically, “[t]his issue arises from the fact that the deportability grounds contained in sections 237(a)(2) and (3) of the Act are generally not applicable to applicants who, like the respondent, entered the United States without inspection and have not thereafter been subjected to an act that would constitute an ‘admission [what?].’” (I.e., being inspected and admitted.)

The Board explained that in the deportability context, “sections 237(a)(2) and (3) apply only to aliens who have been ‘admitted to the United States.’” The statute at issue in the instant case — section 237(a)(2)(A)(i)(I) — contains an additional temporal requirement, providing that not only must the alien’s crime involving moral turpitude have occurred after admission, but also “within five years … after the date of admission.”

In the non-permanent resident cancellation of removal context, the Board stated that “[i]t is well settled that ‘all offenses described in [sections 212(a)(2), 237(a)(2), and 237(a)(3)] apply to all aliens-regardless of admission status-for purposes of the [section 240A(b)(1)(C)’s] bar on cancellation of removal.’” Quoting Lozano-Arredondo, 866 F.3d at 1090. The Ninth Circuit asked the Board to reconsider exactly which aspects of section 237(a)(2) are incorporated in section 240A(b)(1)(C).

Board’s Prior Precedent and Ninth Circuit’s Remand: 27 I&N Dec. 382, 392

In Matter of Cortez, 25 I&N Dec. at 307, the Board held that section 240A(b)(1)(C)’s use of the phrase “offense under” means that it only incorporates “the offense-specific characteristics contained in the cross-referenced sections…” See also Matter of Pedroza, 25 I&N Dec. 312, 314-16 (BIA 2010) [PDF version]. As applied to section 237(a)(2)(A)(i), this means that the Board has held that section 240A(b)(1)(C) incorporates the statute to the extent which it “sets forth a generic offense-a crime involving moral turpitude-and a sentencing requirement-the offense must be one ‘for which a sentence of one year or longer may be imposed.’” Matter of Cortez, 25 I&N Dec. at 307-10. The Board’s interpretation does not consider the admission requirement or the requirement that the offense must have been committed within five years — which are part of the section 237(a)(2)(A)(i) statute in the deportability context — to have been incorporated into the section 240A(b)(1)(C) cancellation of removal bar. The Board noted that the United States Courts of Appeals for the Eighth and Tenth Circuits gave deference to the Board’s interpretation. See Andrade-Zamora v. Lynch, 814 F.3d 945, 951-52 (8th Cir 2016) [PDF version]; Lucio-Rayos v. Sessions, 875 F.3d 573, 584 (10th Cir. 2017) [PDF version].

The Ninth Circuit disagreed with the Board to the extent that the Board held that section 240A(b)(1)(C) was unambiguous. Specifically, the Ninth Circuit suggested that the Board overlooked the possibility that, in the context of section 240A(b)(1)(C) incorporation, the term “admission” in section 237(a)(2)(A)(i) could be read as referring to physical “entry” rather than technical admission. Lozano-Arredondo, 866 F.3d at 1092-93. The significance of such an alternative reading is that it would preserve the temporal requirement of section 237(a)(2)(A)(i), that is, the requirement that the crime involving moral turpitude would need to have been committed within 5 years of physical entry in order to trigger the bar to cancellation of removal. Thus, having found that the relevant statutes were ambiguous, the Ninth Circuit asked the Board to consider which reading was the best construction of the statutes in the first instance.

Board Reaffirms Its Prior Precedents: 27 I&N Dec. 382, 392-93

The Board was not persuaded that the alternative way of reading the statute was the best reading for two primary reasons. First, the Board noted that the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”) expressly replaced the term “entry” in the immigration statutes with the term “admission.” Whereas the concept of entry encompassed lawful and unlawful physical entry into the United States, admission is a narrower concept relating only to lawful physical entry. The difference is significant, for the new statutory scheme provides that aliens who have been admitted are subject to the deportability grounds whereas aliens who physically entered without having been admitted, such as the respondent in the instant case, are treated as applicants for admission who are subject to the inadmissibility grounds. The Board explained that “[c]onstruing the word ‘admission’ to mean ‘entry’ would be contrary to that overall purpose.” Second, the Board explained that Congress made it clear that it considered the terms “admission” and “entry” to be separate and distinct by retaining the term “entry” in other provisions of the INA, specifically section 237(a)(1)(E).

The Board held that “interpreting the cross-reference to an ‘offense under’ section 237(a)(2) as modifying the meaning of ‘admission’ throughout section 237(a)(2) is, in our view, outside the scope of any ambiguity that exists in section 240A(b)(1)(C) of the [INA].” That is, even assuming that the Ninth Circuit is correct that the relevant statutes are ambiguous, its proposed reading of the provisions is unreasonable. The Board explained that “[t]he function of a cross-reference is to incorporate, in whole or in part, the requirements of the referenced section.” This function necessarily excludes modifying the referenced section.

The Board held: “Consistent with our decision in Matter of Cortez, it is our continued view that the most reasonable reading of section 240A(b)(1)(C) is that it cross-references a selected segment-the ‘offense’-of a collective whole-the corresponding ground of removability under section 212(a)(2), 237(a)(2), or 237(a)(3).” Acknowledging the possibility of alternative readings, the Board held that “[f]aced with interpreting an ambiguous statute in a manner that is consistent with its statutory cross-reference or reconstruing a cross-referenced statute for the purpose of resolving an ambiguity in the referencing provision, we believe the former is the better approach.”

Further Explanation of the Board’s Disagreement With the Ninth Circuit’s Proposed Interpretation: 27 I&N Dec. 382, 394-98

The Board further explained its disagreement with some of the Ninth Circuit’s suggestions in Lozano-Arredondo after reaffirming its precedent from Matter of Cortez.

The Ninth Circuit suggested that reading “admission” in section 237(a)(2)(A)(i) as referring to “physical entry” in the context of the cancellation of removal bar in section 240A(b)(1)(C) would “give effect to each word in the statute.” Lozano-Arredondo, 866 F.3d at 1092. The Board disagreed with reading term “admission” as having a different meaning in section 240A(b)(1)(C) than in section 237(a)(2)(A)(i) — especially since the INA clearly distinguishes between “admission” and “entry.”

The Board noted that the “admission” and “temporal” requirements of section 237(a)(2)(A)(i) are significant in the context of removability — because an alien who has not been admitted is not subject to that particular removability provision. However, “[t]he fact that they are inapplicable in determining an alien’s eligibility for relief under section 240A(b)(1)(C) does not render them superfluous.” The Board took the position that its reading of the relevant provisions avoided rendering any part of the section 237(a)(2)(A)(i) superfluous by recognizing that section 240A(b)(1)(C) only incorporates the described offense — a crime involving moral turpitude for which a sentence of at least one year can be imposed — and not the parts of the statute which are relevant in the removal context but not in the cancellation context.

The Ninth Circuit directed the Board to consider the legislative history of section 240A(b)(1)(C) on remand. It noted that a House Conference report described section 240A(b)(1)(C) “as rendering ineligible [for cancellation] any alien ‘convicted of an offense that would render the alien inadmissible under section 212(a)(2)(A) or deportable under redesignated sections 237(a)(2) or 237(a)(3).” The Board disagreed with the description of the statute in the conference report — noting that, while the report appears to require that an alien be “deportable” to be barred from non-permanent resident cancellation removal, “[a]n alien cannot be ‘deportable” without first satisfying the threshold requirement of being an alien ‘in and admitted’ to the United States.” The Board held that it did “not find it reasonable to infer that the conference report signals Congress’ intent to require that an alien be ‘deportable’ for purposes of relief, yet not ‘deportable’ in the same sense that the term is normally understood.”

The Board added that the conference report “purports to provide that section 240A(b)(1)(C) of the Act only applies to offenses that are grounds of inadmissibility under section 212(a)(2),” but that this suggestion “is at odds with the enacted version of section 240A(b)(1)(C), which applies to all criminal grounds under section 212(a)(2).” For these reasons, the Board held that the conference report is not a reliable expression of Congress’ intent.

The Board further noted that the cited to language in the conference report in fact closely tracks other provisions relating to cancellation of removal — noting sections 240A(b)(2)(A)(iv), (d)(1) [subsection (d)(1) is the “stop-time rule”]. Those provisions require that an alien actually be rendered inadmissible or deportable. For example, the Board noted that in the context of the section 240A(d)(1) stop-time rule, “[t]here is no dispute that an offense only ‘renders the alien … removable’ under section 237(a)(2) if the ‘in and admitted’ and temporal ‘admission’ requirements are satisfied, based on the accepted meaning of ‘admission’ in this context.” Matter of Deanda-Romo, 23 I&N Dec. 597, 598 n.1 (BIA 2003) [PDF version]. Thus, “[h]ad Congress intended to adopt such a requirement in section 240A(b)(1)(C), it certainly could have done so through the statutory text.”

Finally, the Board addressed its precedent in Matter of Rosas, 22 I&N Dec. 616, 618-23 (BIA 1999) [PDF version], where it held that an alien who had gained permanent resident status through adjustment of status rather than admission as a permanent resident was deportable under section 237(a)(2)(A)(iii) for having been convicted of an aggravated felony subsequent to adjustment. The Board explained in that case that its goal was to ensure consistency in the application of section 237 and “to make the whole [INA] work coherently and uniformly in all its applications.” Matter of Alyazji, 25 I&N Dec. 397, 404 (BIA 2011) [PDF version]. Conversely, the Board stated that the Ninth Circuit’s proposed reading of the pertinent statutes in the instant case, which would give a “context-specific meaning to the term “admission” in section 237(a)(2)(A)(i) in the non-permanent resident cancellation context, would not only “undermine uniformity in the application of the term ‘admission’ in section 237(a),” but also “would not be consistent with the plain language of the statute.” It noted, for example, that the Ninth Circuit itself has rejected the notion that the concepts of “entry” and “admission” are interchangeable. Xi v. U.S. INS, 298 F.3d 832, 838 (9th Cir. 2002) [PDF version]. Similarly, the Board declined to read the terms as interchangeable in the context of the cancellation of removal bar.

For these reasons, the Board reaffirmed Matter of Cortez as the best reading of the relevant statutes and the legislative history.

Conclusion

The second part of the Board’s decision in Matter of Ortega-Lopez reaffirms its prior precedent in Matter of Cortez, even when viewing the relevant statutes as ambiguous. Generally, the Board’s reading of section 240A(b)(1)(C) requires an assessment of the underlying offenses described in section 212(a)(2), 237(a)(2), and 237(a)(3), but not the additional requirements specific to the inadmissibility and deportability contexts.

In Matter of Cortez itself, the Board explained that its precedent is particularly relevant in cases where an alien would be eligible for the “petty offense exception” to the inadmissibility provision for a crime involving moral turpitude, but where the maximum sentence that could be imposed for the crime is exactly one year. The Board has held that section 240A(b)(1)(C) incorporates the “petty offense exception” found in section 212(a)(2)(A)(ii)(II) of the INA. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003) [PDF version]; Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007) [PDF version]; Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008) [PDF version]; Matter of Almanza, 24 I&N Dec. 771 (BIA 2009) [PDF version]; Matter of Cortez. The petty offense exception does not cure ineligibility for cancellation under section 240A(b)(1)(C), however, if the offense is “described under” section 237(a)(2)(A)(i). The petty offense exception applies when (1) the maximum sentence possible for the crime of which the alien was convicted (or admits having committed) did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment in excess of six months. Conversely, read without the admission and temporal requirements, section 237(a)(2)(A)(i) applies to any conviction for a crime involving moral turpitude where the maximum sentence that could have been imposed was one year or more, without any corresponding exception. Thus, in a case such as the instant case where the maximum sentence that could have been imposed was exactly one year, and the actual sentence imposed was six months or less, the alien would have been eligible for the petty offense exception. But because section 237(a)(2)(A)(i) refers to an offense of one year or more rather than not exceeding one year, the Board concluded that he was nevertheless barred from cancellation of removal under section 240A(b)(1)(C).

An alien facing removal proceedings should always consult with an experienced immigration attorney immediately. An attorney will be able to examine whether there are grounds for contesting the underlying charges against the alien. Furthermore, the attorney may determine whether the alien has a path for seeking relief or protection from removal, regardless of whether he or she can mount a credible challenge to the charges lodged by the DHS. We discuss issues related to this generally in our growing sections on removal and deportation defense [see category] and criminal aliens [see category].