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The Ninth Circuit has deferred to the Board of Immigration Appeals (BIA) holding that a conviction for animal cruelty is categorically a crime involving moral turpitude (CIMT). Ortega-Lopez v. Barr, No. 18-72441 (9th Cir. Oct. 20, 2020). Of even more interest, the Ninth Circuit clarified that Section 240A(b)(1)(C) of the INA (the part of the cancellation statute that provides that non-LPR cancellation is unavailable to a noncitizen who is inadmissible or deportable under INA § 212(a)(2), § 237(a)(2) or § 237(a)(3)) only refers to the list of crimes and not to the immigration parts of the statute that modify its implementation. In other words, if a noncitizen has been convicted of a crime listed under INA § 212(a)(2) or § 237(a)(2) they are statutorily barred from non-lawful permanent resident cancellation of removal. This case has been the subject of two published BIA decisions and now two published Ninth Circuit decisions. It has been like watching an on-going tennis match that has lasted several years. In this final decision, the Ninth Circuit seems to change its definition of a CIMT and seems to defer to the BIA on both the definition of a CIMT and on the definition of Section 240A(b)(1)(C).
Prior to issuing this decision, the Ninth Circuit held that for a non-fraudulent crime to be a CIMT the minimum conduct had to include an intent to injure, an injury to persons, or an action to harm a member of a protected class. The Ninth Circuit deferred to the BIA’s reasoning and found that the absence of injury or intent to injure, or an action to harm a member of a protected class is no longer determinative. In a footnote, the Ninth Circuit dispensed with the argument that the phrase “crime involving moral turpitude” is unconstitutionally vague. It found that the BIA’s expanded definition of a CIMT was not impermissibly retroactive. And, in another footnote, it found that a crime that falls under the petty offense exception for inadmissibility still renders a noncitizen ineligible for non-LPR cancellation. The footnotes are doing a lot of work in this case. There is a lot to unpack here.
We can start with the conclusion of the case before we get into the deeper analysis (for those of you who are reading the abridged version of this blog).
“In sum, we defer to the BIA’s conclusion that knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude described under § 1227(a)(2). We also defer to the BIA’s conclusion that, pursuant to the cross-reference in § 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless whether the alien meets the immigration prerequisites for inadmissibility or deportability. Because Ortega-Lopez was convicted of a violation of § 2156(a)(1), a crime involving moral turpitude, he is ineligible for cancellation of removal.”
Ortega-Lopez, slip op. at *29. As I said, there is a lot to unpack here.
Factual Background
Agustin Ortega-Lopez is a native and citizen of Mexico. In 1994 he entered the United States without inspection. In 2009 he pleaded guilty to a single count of misdemeanor aiding and abetting another person who sponsored or exhibited an animal in an animal fighting venture (aka cockfighting). 7 U.S.C. § 2156(a) and 18 U.S.C. § 2. While the criminal case was pending, the Department of Homeland Security (DHS) served Mr. Ortega-Lopez with a Notice to Appear (NTA) charging him with being inadmissible under INA § 212(a)(6)(A)(i) (a noncitizen present in the United States without being admitted or paroled). Mr. Ortega-Lopez conceded removability and applied for cancellation of removal for non-lawful permanent residents under INA § 240A(b). The Immigration Judge denied Mr. Ortega-Lopez’s application for cancellation finding that he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed.
Prior Case History or Watching the Tennis Match
Mr. Ortega-Lopez appealed the IJ’s decision to the BIA. The BIA dismissed his appeal finding that a conviction for exhibiting or sponsoring an animal in an animal fighting venture was categorically a CIMT. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) (Ortega-Lopez I). Mr. Ortega-Lopez filed a Petition for Review with the Ninth Circuit. The Ninth Circuit remanded the case to the BIA for further consideration. Ortega-Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016)(Ortega-Lopez II). The original Ninth Circuit decision is worth reading for two reasons: first, it is really funny; and second, we get the added information that Mr. Ortega-Lopez has three United States citizen children and had been convicted of a misdemeanor. In Ortega-Lopez II the Ninth Circuit noted that CIMTs fall into two categories: (1) those involving fraud; and (2) those involving grave acts of baseness or depravity. Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012). “[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 v. Holder, 594 F.3d 1125, 1131 (9th Cir. 2010). The Ninth Circuit noted that the IJ and the BIA never discussed how cockfighting involved a “protected class of victim.” More specifically they held, “the crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs.” Ortega-Lopez, 834 F.3d at 1018. I don’t think the BIA appreciated the snark.
The BIA on remand issued a second precedential opinion reaffirming its original holding. Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018) (Ortega-Lopez III). The BIA issued a well-researched and well-reasoned opinion and explained that it believed that the definition of a CIMT was broader than the categories identified by the Ninth Circuit in Nunez. The BIA went back to basics and explained that a CIMT is a crime that is reprehensible and is committed with some form of scienter. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016). “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. 1, 3 (BIA 2017). The 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 1992) cited with approval, Ortega-Lopez, 27 I&N Dec. at 385. The BIA held that the absence of an intent to injure, an injury to a person, or an injury to a protected class of victim is not determinative. Id., at 387. They found that “the immorality of the conduct stemmed from its infliction of suffering on sentient beings, so it applied to animals involved in cockfighting, as well as domesticated animals.” Ortega Lopez IV, slip op. at *16, citing with approval Ortega-Lopez III, 27 I&N Dec. at 833089 n.7. Mr. Ortega-Lopez appealed this decision to the Ninth Circuit. After reading those passages, the Ninth Circuit’s snark seems petty.
Legal Analysis
A Short History Lesson
The Ninth Circuit starts its analysis of this case in a rather curious fashion – by giving a history lesson on the grounds of exclusion and deportation that existed before the enactment of the Illegal Immigration and Immigration Responsibility Act (IIRIRA). They explained how proceedings were previously divided into exclusion proceedings (if the noncitizen had been stopped at the border and wasn’t physically in the United States) and deportation (if the noncitizen had entered the United States and was being placed in proceedings. I did not understand why they were discussing pre-IIRIRA exclusion and deportation proceedings, but I feared it would not ultimately bode well for Mr. Ortega-Lopez. They then discussed the fact that noncitizens who are now either inadmissible or deportable (under the IIRIRA framework) may apply for non-lawful permanent resident cancellation of removal (non-LPR cancellation) under INA § 240A(b). However, in order to be eligible for non-LPR cancellation the person cannot have been convicted of an offense under INA sections 212(a)(2), 237 (a)(2), or 237(a)(3). Hold onto that framework as we go forward with the analysis – it becomes important later.
So Very Very Vague
I found that there were so many different layers and levels of vagueness in this case. First, the Ninth Circuit considered whether the underlying crime of cockfighting is categorically a CIMT. In a footnote, the Ninth Circuit dispensed with the notion that the definition of a non-fraudulent CIMT is not unconstitutionally vague. Ortega-Lopez IV, slip op. at *19 n. 10. (As I said the footnotes are doing a lot of work in this case). The Ninth Circuit afforded Chevron deference to the BIA’s published decision in this case. The Ninth Circuit referenced the BIA’s definition of reprehensible conduct (one of the two prongs of Silva-Trevino). And, in a sentence that I found very troubling, the Ninth Circuit held: “Because this definition [of reprehensible conduct] does not meaningfully delineate the elements of the offense, the BIA “has sensibly moved from trying to define the phrase itself to instead giving examples of the types of offenses that qualify as ‘crimes involving moral turpitude.’” Ortega-Lopez IV, slip op. at *13.
Does anyone else see a problem with vagueness here? The Supreme Court has held that an immigration statute is unconstitutionally vague if it does not guarantee ordinary people “fair notice of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018). The Dimaya Court noted that the void for vagueness doctrine guards against arbitrary or discriminatory law enforcement by insisting that the statute provides standards to govern the actions of law enforcement and judges. Ibid. “In that sense, the doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not.” Ibid. How is the ordinary immigrant supposed to know what exactly constitutes a CIMT? How can they tell if the definition of a CIMT seems to be that the IJ “know[s] it when [they] see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring). I find this definition to be very troubling.
Retroactivity
Once the Ninth Circuit determined that it would defer to the BIA’s determination that cockfighting was a CIMT, it addressed the issue of retroactivity. Mr. Ortega-Lopez argued that the BIA’s determination that cockfighting was a CIMT should not apply to him because he was convicted of this offense many years before the BIA issued its decision. The Ninth Circuit engaged in a retroactivity analysis. They held that retroactivity does not apply if (1) the BIA did not change the law; (2) the BIA did not overrule its precedent; or (3) the BIA did not reach a conclusion contrary to a previous appellate ruling. “With no change in law, there are no retroactivity concerns, and therefore Ortega-Lopez’s argument fails.” Ortega-Lopez IV, slip op. at *18.
Mr. Ortega-Lopez Had Been Convicted of an Offense Listed under INA § 212(a)(2) § 237(a)(2) or § 237(a)(2)
I had to read and re-read this section numerous times because I could not understand it. I have come concluded that the reason I couldn’t understand it is because it doesn’t make sense. Let’s go back to the statute itself, (“Let’s start at the very beginning. A very good place to start…” Sometimes a person just needs a bit of Julie Andrews). The statute states that the Attorney General may cancel the removal of a noncitizen who is inadmissible or deportable to the United States if they have “not been convicted of an offense under section 1182(a)(2) [212(a)(2)] 1227(a)(2) [237(a)(2)] or 1227(a)(3) [237(a)(3)].*.*.*.” INA § 240A(b)(1)(C). These statutes have both a criminal component and a modifying immigration component. For example, a person is removable under INA § 237(a)(2) if they have committed a CIMT within five years of admission for which a sentence of one-year or longer may be imposed. But is a noncitizen ineligible for non-LPR cancellation of removal if they committed a CIMT ten years after admission? Is a noncitizen ineligible for non-LPR cancellation if they haven’t been admitted and have been convicted of a crime that is only a ground of deportability such as a firearms offense or a crime of domestic violence? The statute itself is problematic.
The Ninth Circuit previously addressed the second issue and found that a noncitizen who had not been admitted to the United States was ineligible for non-LPR cancellation of removal where he had been convicted of a crime of domestic violence. Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004). (Remember, a crime of domestic violence, like a firearms offense, is not a ground of inadmissibility listed in INA § 212 and is only a ground of deportability listed in INA § 237). The Gonzalez-Gonzalez Court held that all of the offenses described in the statutes apply to all non-citizens regardless of admission status. “The most logical reading of the ‘convicted of an offense under’ is … ‘convicted of an offense described under’ each of the three sections.” Id., at 652-53, cited with approval Lozano Arredondo v. Sessions, 866 F.3d 1082, 1090 (9th Cir. 2017). It does not matter whether the noncitizen is subject to the grounds of inadmissibility or deportability – all the enumerated crimes apply.
The BIA took this language from Gonzalez-Gonzalez and expanded on this analysis. The BIA held that the plain language of 240A(b)(1)(C) “should be read to cross-reference a list of offenses in the three statutes, rather than the statutes as a whole.” Matter of Cortez-Canales, 25 I&N Dec. 301, 308 (BIA 2010). (Get used to the term “cross reference” you’ll be seeing it a lot). They held that the cross-referenced statutes only applied to the enumerated crimes rather than to the enumerated crimes plus, the separate immigration requirements (such as a CIMT committed within five years of admission). Ibid.
The issue of whether the BIA could eliminate the separate immigration requirements in the cross-referencing of the statutes under Section 240A(b)(1)(C) went back to the Ninth Circuit and the Ninth Circuit found that the statute was ambiguous and that the BIA had not properly analyzed it. They noted that Section 240A(b)(1)(C) could refer to “(1) only the criminal offense itself – a crime involving moral turpitude; (2) the criminal offense plus one additional element of the deportable offense (i.e., the criminal offense plus either the within-five-years limitation or the sentence-length limitation); or (3) all three elements of the deportable offense.” Id., at 1085, 1089-90 cited in Ortega-Lopez, slip op. at *22. The Court was concerned that noncitizens seeking non-LPR cancellation of removal who had not been admitted to the United States would never be ineligible for relief under Section 240A(b)(1)(C) because the government would not be able to establish that they had been convicted of a CIMT within five years of admission. I’ll just leave that there. The Ninth Circuit suggested that the BIA could interpret the term “admission” in this context to mean “entry” and remanded it to the BIA. Lozando-Arredondo, 866 F.3d at 1092.
The BIA in responded to the Lozano-Arredondo’s ruling in Ortega-Lopez III that the cross-reference in Section 240A(b)(1)(C) was ambiguous. The BIA restated its holding in Cortez-Canales that the cross-reference in Section 240A(b)(1)(C) only incorporated the crime itself and the sentence imposed or potentially imposed. Ortega-Lopez III, 27 I&N Dec. at 292. First, the BIA refused to the Ninth Circuit’s invitation in Lozando-Arrendondo to find that the terms “entry” and “admission” were interchangeable. Ortega-Lopez III, 27 I&N Dec. at 397. (This analysis explains the history lesson that the Ninth Circuit gave us at the beginning of the opinion). Next, they held that a statute’s cross-reference to a different statutory section functions as an “incorporation” of the referenced section and not as a “modification.” Thus, the most reasonable reading of the cross-reference was that it incorporated the offense-related elements but not the immigration related elements. Ibid. The BIA rejected the suggestion that this reading would render superfluous the “within-five-years” element of the statute because there were different criminal grounds for inadmissibility and deportability. What? Then the BIA analyzed the legislative history cited in Lozano-Arredondo and concluded that the legislative history did not change the Board’s analysis in Cortez-Canales. The BIA concluded “the best interpretation of [§ 240A(b)(1)(C)] “is that the ‘offense under’ language is a limited cross-reference, one that incorporates only the offense-specific characteristics of the cross-referenced sections.” Ortega-Lopez III, at 397. The BIA reaffirmed its decision in Cortez-Canales.
The Ninth Circuit deferred to the BIA’s holding under Chevron. It concluded that the BIA adopted a permissible interpretation of the statute based on its expertise and discretion. The Ninth Circuit dismissed in a footnote Mr. Ortega-Lopez’s argument that the conviction fell under the petty offense exception to the grounds of inadmissibility under INA § 212(a)(2)(A)(ii)(I). (As I said, the footnotes are doing a lot of work here). The Ninth Circuit held that the plain language of the statute simply cross-references a list of offenses in the three statutes, rather than the statutes as a whole. Ortega-Lopez, slip op. *28 n. 11. Geoffrey Doolittle made every conceivable argument for his client and it simply wasn’t enough. This decision will make it very difficult for any noncitizen convicted of any removable offense, no matter how minor, to obtain non-LPR cancellation of removal.
Ortega-Lopez v. Barr, No. 18-72441 (9th Cir. Oct. 20, 2020).
