Wednesday, August 24, 2016
Ninth Circuit Questions Deportation Based On Cockfighting Conviction
By a MetNews Staff Writer
The Board of Immigration Appeals must reconsider its ruling that involvement in cockfighting is a crime involving moral turpitude, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge John B. Owens, in his panel opinion, accepted the government’s argument that the sport is “depraved and vile.” But he questioned whether the animals can constitute a type of protected class, the harming of which would render an alien ineligible for cancellation of removal.
The BIA, he said, must provide a more detailed explanation of its conclusion that 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, or CIMT.
The alien in yesterday’s case, Augustin Ortega-Lopez pled guilty in 2008 to a misdemeanor count of cockfighting, for which he served a year’s probation. “He was hardly the Don Corleone (or even the Fredo) of this enterprise,” Owens said, noting the government’s concession at sentencing that his role was relatively minor.
Ortega-Lopez, the father of three U.S. citizens, applied for cancellation of removal after the government sought to deport him as an undocumented alien. The government responded that he was ineligible for relief because the crime of which he was convicted was a CIMT.
The immigration judge agreed with that position, saying the statute “criminalizes willful conduct that is inherently base and depraved.” He noted that cockfighting is illegal in all 50 states and found it analogous to child abuse, which has been held to be a CIMT.
The BIA agreed in a published decision, but Owens questioned its reasoning.
Ninth Circuit precedent on nonfraudulent CIMTs says they “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.”
Harm to chickens, however, is “outside the normal realm of CIMTs,” the judge said, while insisting he was not defending the sport.
“Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that,” Owens wrote. “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.”
He cited cases holding that many other seemingly serious crimes have been held not to categorically involve moral turpitude, including simple kidnapping, felony false imprisonment, and identity theft. Each of those offenses, as defined under California law, was held not to be a CIMT because it was possible to convict the offender without proof of actual or intended injury “or a special class of victims,” Owens noted.
The case is Ortega-Lopez v. Lynch, 13-71127.
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