Agustin Ortega-Lopez v. Loretta E. Lynch , 834 F.3d 1015 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUSTIN ORTEGA-LOPEZ, No. 13-71127
Petitioner,
Agency No.
v. A088-994-318
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 8, 2016
Portland, Oregon
Filed August 23, 2016
Before: Harry Pregerson, Carlos T. Bea,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens;
Concurrence by Judge Bea
2 ORTEGA-LOPEZ V. LYNCH
SUMMARY*
Immigration
The panel granted Agustin Ortega-Lopez’s petition for
review of the Board of Immigration Appeals’ published
precedential decision, Matter of Ortega-Lopez, 26 I. & N.
Dec. 99 (BIA 2013), which held that his conviction for
sponsoring or exhibiting an animal in an animal fighting
venture under 7 U.S.C. § 2156(a)(1) is a categorical crime
involving moral turpitude.
The panel found that the IJ and BIA did not discuss how
the statute of conviction, cockfighting, involves an action that
affects a protected class of victim. The panel cited the
finding 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." The panel wrote that although this
court’s case law does not explicitly require the BIA to apply
the language in Nunez, it thought a remand to consider the
language was appropriate because the crime at issue
involving harm to chickens is outside the normal realm of
CIMTs.
Concurring fully in the majority opinion, Judge Bea wrote
separately to emphasize the unsuitability of the Taylor v.
United States, 495 U.S. 575 (1990), framework to determine
whether a particular crime is one involving moral turpitude.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ORTEGA-LOPEZ V. LYNCH 3
COUNSEL
Navid David Shamloo (argued), N. David Shamloo, Esq.,
Portland, Oregon, for Petitioner.
Joanna L. Watson (argued), Trial Attorney; Ernesto H.
Molina, Jr., Senior Litigation Counsel; Civil Division, Office
of Immigration Litigation, United States Department of
Justice, Washington, D.C.; for Respondent.
Thomas Hutchins and James Feroli, Immigrant & Refugee
Appellate Center, Alexandria, Virginia, for Amici Curiae
Thomas Hutchins, James Feroli, and Immigrant & Refugee
Appellate Center.
OPINION
OWENS, Circuit Judge:
Agustin Ortega-Lopez, a Mexican citizen, contends that
his misdemeanor conviction for participating in cockfighting
in violation of the Unlawful Animal Venture Prohibition,
7 U.S.C. § 2156(a)(1), does not qualify as a categorical crime
involving moral turpitude (“CIMT”). The Immigration Judge
(“IJ”) and Board of Immigration Appeals (“BIA”) concluded
that it did. We grant the petition and remand for further
proceedings consistent with this opinion.
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I. Factual and Procedural Background
A. Ortega-Lopez and Cockfighting
Ortega-Lopez came to the United States without
permission in 1992. He has three children who are United
States citizens. In 2008, Ortega-Lopez pled guilty to one
misdemeanor count of cockfighting. He was hardly the Don
Corleone (or even the Fredo) of this enterprise. Rather, as the
government’s sentencing position detailed: “his involvement
in the overall crime was relatively minor compared to” the
other defendants in the case. His punishment—one year of
probation with no jail time—reflected his limited culpability.
He has no other convictions.
B. Removal Proceedings
In March 2008, the Department of Homeland Security
alleged that Ortega-Lopez was removable as “an alien present
in the United States without being admitted or paroled.” See
INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Ortega-
Lopez filed an application for cancellation of removal under
INA § 240(A)(b), 8 U.S.C. § 1229b(b).
On February 14, 2011, the IJ held that Ortega-Lopez was
ineligible for cancellation of removal because his conviction
was a CIMT. See INA § 240(A)(b)(1)(C). Applying Taylor
v. United States, 495 U.S. 575 (1990), the IJ concluded that
the conviction “categorically involves moral turpitude
because it criminalizes willful conduct that is inherently base
and depraved.” The IJ explained:
Animal fights . . . serve no purpose other than
entertainment. Unlike hunting or racing,
ORTEGA-LOPEZ V. LYNCH 5
animal fighting is a spectacle, 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
spectacle of forcing animals to cause each
other extreme pain or death necessarily
appeals to prurient interests.
Turning specifically to cockfighting, the IJ noted that all 50
states outlawed the practice and that society had found
“animal fighting ventures morally reprehensible.” The judge
reasoned that because animal fighting constituted animal
cruelty in many states, and courts had concluded that cruel
acts towards children inhere moral turpitude, animal fighting,
which also involved defenseless living beings akin to
children, was necessarily morally turpitudinous. Ortega-
Lopez appealed.
C. Appeal to BIA
In a March 2013 published decision, the BIA agreed with
the IJ that the offense of sponsoring or exhibiting an animal
in an animal fighting venture was categorically a CIMT.
Also applying the categorical approach, the BIA sought to
“compare the statute of conviction to the generic definition of
moral turpitude.” Rohit v. Holder, 670 F.3d 1085, 1088 (9th
Cir. 2012). The BIA defined moral turpitude as “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.” Matter of Ajami, 22 I. & N.
Dec. 949, 950 (BIA 1999). The BIA concluded that animal
fighting “clearly involves reprehensible conduct” and cited
several cases describing dog fighting as “cruel” and
“inhumane.” See, e.g., United States v. Stevens, 130 S. Ct.
6 ORTEGA-LOPEZ V. LYNCH
1577, 1601–02 (2010) (Alito, J., dissenting); United States v.
Hackman, 630 F.3d 1078, 1084 (8th Cir. 2011). Turning to
cockfighting, the BIA, like the IJ earlier, emphasized that this
practice had been outlawed in all 50 states and this “sweeping
prohibition” confirmed that our society found it morally
reprehensible. This petition timely followed.
II. Discussion
Whether a crime involves moral turpitude is a question of
law that we review de novo. Latter-Singh v. Holder, 668 F.3d
1156, 1159 (9th Cir. 2012). We afford deference under
Chevron v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), however, to the BIA’s published
determination that “specified conduct constitutes a CIMT,”
Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010),
unless the “BIA did not support its conclusion with any
statutory interpretation or reasoning,” Rivera v. Lynch,
816 F.3d 1064, 1071 (9th Cir. 2015).
Congress has declared cockfighting a scourge that
warrants prosecution, and we have no quarrel with that.1 Yet
that is not our inquiry here—rather, we must determine
whether the conviction at issue is a CIMT. In answering this
question, the government urges us to hold that cockfighting
is a vile and depraved practice, which in its view ends the
story. It does not.
1
Unlike dogfighting, which is illegal everywhere in the United States,
cockfighting remains legal in Guam, the Northern Mariana Islands, Puerto
Rico, and the U.S. Virgin Islands. See White v. United States, 601 F.3d
545, 549 (6th Cir. 2010).
ORTEGA-LOPEZ V. LYNCH 7
We have recognized that whether a crime is a CIMT is a
“nebulous question that we are required to answer on the
basis of judicially established categories of criminal
conduct.” Nunez v. Holder, 594 F.3d 1124, 1127 (9th Cir.
2010). To interpret the entrails of Taylor, we employ the
categorical approach, the modified categorical approach, and
other mechanisms that the Supreme Court dictates (and then
often undermines just a couple of Terms later). See, e.g.,
Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2015)
(en banc) (Owens, J., concurring) (explaining that “[a]lmost
every Term, the Supreme Court issues a ‘new’ decision with
slightly different language that forces federal judges, litigants,
lawyers and probation officers to hit the reset button once
again” in determining whether a crime is a CIMT).
Fortunately, this case does not require another painful
ascent of Mount Taylor. CIMTs fall into two categories:
“[1] those involving fraud and [2] those involving grave acts
of baseness or depravity.” Robles-Urrea v. Lynch, 678 F.3d
702, 708 (9th Cir. 2012). The parties agree that only this
second category is potentially in play here.
“[N]on-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.” Nunez, 594 F.3d at 1131. In their
opinions, the IJ and BIA never discussed how the statute of
conviction—cockfighting—involved a “protected class of
victim.” The government’s briefing never addressed Nunez,
and when asked about it at oral argument, government
counsel had no answer.
While our case law does not explicitly require the BIA to
apply this language in Nunez, we think a remand to consider
8 ORTEGA-LOPEZ V. LYNCH
this language is appropriate here, as the crime at issue
involving harm to chickens is, at first blush, outside the
normal realm of CIMTs. See Lopez v. Ashcroft, 366 F.3d
799, 806–07 (9th Cir. 2004) (noting that remand is proper to
permit BIA to consider question in the first instance); see also
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213 (9th Cir.
2013) (reviewing BIA decision de novo and holding that
simple kidnapping under California law was not a CIMT
because it “does not require an intent to injure, actual injury,
or a special class of victims” (citation omitted)); Turijan v.
Holder, 744 F.3d 617, 621 (9th Cir. 2014) (reviewing
unpublished BIA decision and holding that felony false
imprisonment did not qualify as a CIMT because it does not
require an intent to injure someone, an actual injury, or a
protected class of victims); Linares-Gonzalez v. Lynch,
823 F.3d 508, 517–18 (9th Cir. 2016) (holding that BIA erred
in determining that identity theft under California law was a
CIMT where it “does not require ‘intent to injure, actual
injury, or a protected class of victim’” (citation omitted)).
The answer cannot be that outlawing cockfighting in the 50
states automatically qualifies cockfighting as a CIMT—more
is required. See, e.g., Navarro-Lopez v. Holder, 503 F.3d
1063, 1071 (9th Cir. 2007) (en banc) (holding that a
definition of moral turpitude that encompassed all criminal
conduct would be overbroad and contrary to the intent of
Congress), overruled on other grounds by United States v.
Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en
banc).
PETITION GRANTED AND REMANDED.
ORTEGA-LOPEZ V. LYNCH 9
BEA, Circuit Judge, concurring:
I concur fully in Judge Owens’ opinion. I write separately
only to emphasize the unsuitability of the Taylor framework
for determining whether a particular crime is one involving
moral turpitude. See Ceron v. Holder, 747 F.3d 773, 785–89
(9th Cir. 2014) (en banc) (Bea, J., dissenting); Navarro-Lopez
v. Gonzales, 503 F.3d 1063, 1084–86 (9th Cir. 2007) (en
banc) (Bea, J., dissenting) (“There is no generic federal crime
of moral turpitude with elements similar to, or different from,
a state crime of moral turpitude for the simple reason there is
no state crime of moral turpitude. One has to have a crime,
such as burglary, to use the Taylor categorical analysis.”).