Ortega-Lopez v. Barr

• Decision Date: 20 October 2020
• Docket Number: No. 18-72441,18-72441
• Citation: 978 F.3d 680
• Parties: Agustin ORTEGA-LOPEZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

978 F.3d 680

Agustin ORTEGA-LOPEZ, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-72441

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 4, 2020 Pasadena, California

Filed October 20, 2020

Geoffrey M. Doolittle (argued), Doolittle Legal LLC, Portland, Oregon, for Petitioner.

Sabatino F. Leo (argued), Senior Litigation Counsel; Anthony P. Nicastro, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX4-318

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra,^* District Judge.

IKUTA, Circuit Judge:

Ortega-Lopez, a native and citizen of Mexico, petitions for review of a ruling by the Board of Immigration Appeals (BIA) that he was ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). We hold that the BIA reasonably concluded that Ortega-Lopez had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed based on his conviction under 7 U.S.C. § 2156(a)(1) (criminalizing specified conduct relating to animal fighting ventures). We also defer to the BIA's conclusion that an alien who has been convicted of such an offense is an alien "convicted of an offense under section ... 1227(a)(2)," 8 U.S.C. § 1229b(b)(1)(C). Therefore, we deny the petition for review.

I

The question on appeal is whether Ortega-Lopez is ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) because he was "convicted of an offense under" 8 U.S.C. § 1227(a)(2) (listing grounds of deportability). To understand this question in context, we begin with some historical background.

Before enactment of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), "United States immigration law established two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings." Vartelas v. Holder , 566 U.S. 257, 261, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (quoting Landon v. Plasencia , 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ). "Exclusion hearings were held for certain aliens seeking entry to the United States, and deportation hearings were held for certain aliens who had already entered this country." Id.

Under pre-IIRIRA law, "entry" was defined as a person's physical entry into the United States, whether lawfully or unlawfully. 8 U.S.C. § 1101(a)(13) (1994) (defining "entry" to mean "any coming of an alien into the United States, from a foreign port or place"). Under this law, an alien who entered the United States could be charged with grounds of deportability in a deportation hearing. See, e.g. , Mendoza v. INS , 16 F.3d 335, 336–37 (9th Cir. 1994). An alien who was stopped at the border or a port of entry (even if subsequently paroled into the United States) could be charged with grounds of exclusion in an exclusion hearing. See, e.g. , Ramirez-Durazo v. INS , 794 F.2d 491, 495–97 (9th Cir. 1986). The government had the burden of proof at a deportation hearing, while the alien had the burden of proof at an exclusion hearing. Compare Gameros-Hernandez , 883 F.2d 839, 841 (9th Cir. 1989) (deportation), with Clark v. Smith , 967 F.2d 1329, 1331 (9th Cir. 1992) (exclusion). Because the government had to prove that any alien who had entered the United States met the requirements for deportation, an alien who entered unlawfully had an advantage over an alien stopped at the border. See, e.g. , Ramirez-Durazo , 794 F.2d at 496–97 & n.2.

IIRIRA amended this framework. Congress intended to eliminate the anomaly "under which illegal aliens who have entered the United States without inspection gain equities and privileges in immigration proceedings that are not available to aliens who present themselves for inspection at a port of entry." Torres v. Barr , 976 F.3d 918, 928 (9th Cir. 2020) (en banc) (quoting H.R. Rep. 104-469, pt. 1, at 225 (1996)); see also Matter of Valenzuela-Felix , 26 I. & N. Dec. 53, 60 n.7 (BIA 2012) (same). Therefore, Congress replaced the term "entry," see § 1101(a)(13) (1994), with the term "admission," § 1101(a)(13)(A) (stating that "[t]he terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer"). IIRIRA also replaced the term "excludable aliens" with "inadmissible aliens," and replaced grounds for exclusion with grounds of inadmissibility. See Xi v. INS , 298 F.3d 832, 838 (9th Cir. 2002). Under this new framework, a person who physically entered the United States but was not admitted is subject to grounds of inadmissibility, rather than deportability, and has to bear the corresponding burden of proving admissibility. Congress also eliminated separate exclusion and deportation hearings, and it channeled all aliens into removal hearings. Vartelas , 566 U.S. at 262, 132 S.Ct. 1479. Despite this procedural unification, the substantive bases for excluding and deporting aliens remained distinct and addressed in different statutory sections. Judulang v. Holder , 565 U.S. 42, 46, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). The list of offenses related to inadmissibility remained in 8 U.S.C. § 1182(a), and the list of offenses related to deportability remained in 8 U.S.C. § 1227(a). These lists are "sometimes overlapping and sometimes divergent." Judulang , 565 U.S. at 46, 132 S.Ct. 476.

Both inadmissible and deportable aliens may apply for cancellation of removal under § 1229b(b)(1). Under § 1229b(b)(1), the Attorney General has discretion to cancel removal of an alien who is inadmissible or deportable if the alien meets four statutory requirements. One such requirement is that the alien "has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title."¹ § 1229b(b)(1)(C). The three cross-referenced sections list various criminal offenses. The section at issue here, § 1227(a)(2)(A)(i), relates to deportability and crimes involving moral turpitude:

(i) Crimes of moral turpitude. Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.

II

We now turn to the facts of this case. Ortega-Lopez, a native and citizen of Mexico, unlawfully entered the United States in 1994. In January 2008, Ortega-Lopez was indicted on several criminal counts, including violations of 7 U.S.C. § 2156(a)(1) for sponsoring or exhibiting an animal in an animal fighting venture. In 2009, Ortega-Lopez pleaded guilty to a single count under § 2156(a)(1) and 18 U.S.C. § 2(a) for knowingly aiding and abetting another person who sponsored or exhibited an animal in an animal fighting venture.²

While his criminal case was pending, the government commenced removal proceedings against Ortega-Lopez. Because Ortega-Lopez had not been admitted into the United States, he was subject to grounds of inadmissibility. The government served him with a notice to appear which charged him as being removable on the ground that he was an "alien present in the United States without being admitted or paroled." § 1182(a)(6)(A)(i). Ortega-Lopez conceded he was removable and applied for cancellation of removal under § 1229b(b)(1). The immigration judge (IJ) denied Ortega-Lopez's application for cancellation of removal on the ground that he had been convicted of a violation of § 2156(a)(1), a crime involving moral turpitude for which a sentence of a year or longer may be imposed. Ortega-Lopez appealed to the BIA. The BIA dismissed Ortega-Lopez's appeal, Matter of Ortega-Lopez , 26 I. & N. Dec. 99 (BIA 2013) (Ortega-Lopez I ).

We granted Ortega-Lopez's petition for review and remanded the case to the BIA for further consideration. Ortega-Lopez v. Lynch , 834 F.3d 1015, 1018 (9th Cir. 2016) ( Ortega-Lopez II ). We ordered the BIA to consider the language in Nunez v. Holder , 594 F.3d 1124 (9th Cir. 2010), which had conducted an overview of our cases and generalized 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." 594 F.3d at 1131.³ We also noted that "the crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs." Ortega-Lopez II , 834 F.3d at 1018.

On remand, the BIA issued a precedential decision reaffirming its dismissal of Ortega-Lopez's appeal. Matter of Ortega-Lopez , 27 I. & N. Dec. 382 (BIA 2018) (Ortega-Lopez III ). The BIA explained its view that moral turpitude was broader than the categories identified by Nunez , and it concluded that § 2156(a)(1) was categorically a crime involving moral turpitude because the offense involved intentional conduct that was morally reprehensible. Id. at 386–87. It also addressed our intervening opinion in Lozano-Arredondo v. Sessions , 866 F.3d 1082 (9th Cir. 2017), and reaffirmed the interpretation of a prior BIA decision holding that the cross-reference in § 1229b(b)(1)(C) incorporated only "the offense-specific characteristics contained in the cross-referenced sections—that is, the listed generic offense and any corresponding sentencing requirements," but did not incorporate the requirement that the crime be "committed within five years ... after the date of admission." Ortega-Lopez III , 27 I. & N. Dec. at 391–92 (citing Matter of Cortez Canales , 25 I. & N. Dec. 301, 307 (BIA 2010) ). The BIA then determined that Ortega-Lopez was ineligible for cancellation of removal and...