BIA Holds That The Offense Of Sponsoring Or Exhibiting An Animal In An Animal Fighting Venture, In Violation of 7 U.S.C § 2156(a)(1), Is A Categorical Crime Invoking Moral Turpitude. An Applicant Who Has Been So Convicted Is Ineligible For Cancellation of Removal Per INA § 240A(b)(1)(C) For Having “Been Convicted Of An Offense Under” INA § 237(a)(2)(A)(i), Irrespective Of Both the General “Admission” Requirement in § 237(a) And The Temporal (Within 5 Years Of Admission) Requirement In § 237(a)(2)(A)(i)(I). Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) and Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), Reaffirmed.
On August 6, 2018, the Board of Immigration Appeals (BIA or Board) issued a second precedent decision in this matter, having previously dismissed 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 per 7 U.S.C § 2156(a)(1) is a categorical crime involving moral turpitude (CIMT), which qualifies as an “offense under” INA § 237(a)(2)(A)(i), rendering him ineligible for cancellation of removal under INA § 240A(b)(1)(C). The case had gone up to the Ninth Circuit Court of Appeals, which remanded it to the BIA for further consideration of whether § 2156(a)(1) qualifies as a CIMT 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.” (The circuit court had noted that the language of § 2156(a)(1) pertaining to “harm to chickens” appeared, at first blush, “outside the normal realm” of a CIMT.) The Board thus used the instant opinion to clarify its rationale for concluding that moral turpitude “necessarily inheres in all violations of this statute.”
In its initial analysis regarding whether a conviction is a CIMT, the decision stated that the BIA employs the “categorical approach,” comparing the elements of an offense to those of the generic definition to determine if there is a categorical match. As a predicate to this determination, the opinion had already stated in a footnote that while respondent’s conviction is not for an “offense under” § 212(a)(2)(A)(i)(I) because it qualifies for § 212(a)(2)(A)(i)(II)’s petty offense exception, he is still ineligible for cancellation as one convicted of an “offense under” § 237(a)(2)(A)(i), per Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). Citing prior precedent, the Board reiterated that to constitute a CIMT, an offense must have two essential elements: 1) a culpable mental state and 2) reprehensible conduct. The decision then explained that the Ninth Circuit defers to the manner in which the BIA applies this definition, through case-by-case adjudication, to assess the “character, gravity, and moral significance” of the conduct in question; however, noted the opinion, such deference “has not been universal” as the Ninth Circuit employs its own definition as well, holding that CIMTs fall into two categories: 1) those involving fraud and 2) those involving grave acts of baseness or depravity. Further, the Ninth Circuit has found that offenses that do not involve fraud but fall into the second category almost always involve “an intent to injure, an injury to person, or an act affecting a protected class of victims.” The instant remand, found the Board, was to consider whether this conviction, which does not involve fraud, involves one of these three circumstances.
In a densely-reasoned explication of this issue, the decision then stated that while “these principles may serve as useful guideposts,” it has never limited the determination of whether an offense is a CIMT to these categories because the definition of moral turpitude is broader; in fact, the Ninth Circuit has found some non-fraud offenses to be CIMTs, even in the absence of one of the three above-enumerated circumstances. And, found the Board, if its understanding in this regard is incorrect, it respectfully disagrees with the federal court’s approach. For example, prostitution and incest are acts “so contrary to the standards of a civilized society as to be morally reprehensible.” Such behavior, held the BIA, is morally repugnant even if relating to “sexual acts committed by consenting adults.” The opinion found the instant offense “to be of a similar nature.” Thus, concluded the Board, in assessing whether an offense that does not include fraud can be a CIMT, the absence of one of the three circumstances is not determinative and reaffirmed its original holding that the crime involves moral turpitude because the conduct involved celebrates animal suffering for human enjoyment, thereby transgressing “the socially accepted rules of morality” and breaching a duty owed society.
Next, in responding to certain concerns of the respondent and amicus, the decision stated that the BIA was not persuaded that one could be convicted under § 2156(a)(1) merely by paying a fee to attend an animal fight or being a vendor at such an event – direct and indirect financial contributions do not fall under the statute. Therefore, concluded the Board, the offense is categorically a CIMT.
Turning to its analysis of the “offense under” § 237(a)(2) language of the INA, the opinion noted that cancellation of removal applicants must prove they have not been convicted of an offense under §§ 212(a)(2), 237(a)(2), or 237 (a)(3) so that the issue here is whether the reference to an “offense under” one of these sections incorporates all or part of those sections or if Congress intended some other interpretation. (Per the Board, the Ninth Circuit had found the statutory text “ambiguous on this point.”) The decision first noted that the removal grounds of INA §§ 237(a)(2) and (3) are generally not applicable to those who entered the U.S. without inspection and have not subsequently been subjected to an act that would constitute an “admission”; they only apply to those “admitted to the United States.” Thus, the question at bar becomes, per the BIA, what aspects of § 237(a)(2) are retained by virtue of the “offense under” language found in § 240A(b)(1)(C).
In explaining its reasoning, the Board expressly disagreed with the Ninth Circuit’s statement that it is plausible to read § 240A(b)(1)(C) as incorporating all of § 237(a)(2)(A)(i) but modifying the “within five years” provision as counting from an applicant’s “entry” instead of “admission,” giving two reasons: 1) one of the overriding purposes of the IIRIRA, the 1996 revision to the INA, was to replace the term “entry” with “admission” so that a person who entered without inspection would be subject to the grounds of inadmissibility, not deportability and Congress intended the two terms to have different meanings and 2) interpreting the cross-reference to an “offense under” 237(a)(2) as modifying the meaning of “admission” throughout that subsection is, in the view of the panel, “outside the scope of any ambiguity that exists in” 240A(b)(1)(C).
The BIA found that the “most reasonable reading” of § 240A(b)(1)(C) is that it cross-references “a selected segment-the ‘offense’-of a collective whole,” e.g., the corresponding removability ground of § 237(a)(2) or (3); in this manner, concluded the decision, the meaning of the two sections “remains constant,” with only the “offense” characteristics in each being operative. Later in the opinion, raising a similar interpretory argument, the Board found it unreasonable to infer that Congress intended to require that a cancellation applicant be “deportable” for purposes of relief, yet not “deportable” in the sense “that the term is normally understood.” In sum, held the BIA, the “language and context” of 240A(b)(1)(C) in its entirety compels the conclusion that the “offense under” language is “a limited cross-reference” that incorporates “only the offense-specific characteristics of the cross-referenced sections.”
As such, Matter of Cortez, which held that the plain language of § 240A(b)(1)(C) provides that only the offense-specific characteristics contained in the cross-referenced sections of the INA are applicable in determining whether one has been convicted of an “offense under” one of those sections, was reaffirmed and the Board continued to conclude that neither the “in and admitted” requirement of § 237(a) nor the temporal “admission” requirements “of the specific deportability grounds” are applicable in determining if § 240A(b)(1)(C) disqualifies an applicant from cancellation relief by virtue of an “offense under” 237(a)(2) or (3). The BIA reaffirmed its prior decision denying respondent cancellation, finding his conviction to be for a CIMT which carried a potential sentence of imprisonment for 1 year and dismissed the appeal. Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).
Learn more about the immigration services provided by Philip Levin & Associates.
