Block on Trump's Asylum Ban Upheld by Supreme Court
Congress may view cockfighting as vile and depraved. It may be a "scourge that warrants prosecution." It is, no doubt, cruel and reprehensible. But it might not justify deportation as a crime of moral turpitude, the Ninth Circuit ruled yesterday.
The ruling comes after the Department of Homeland Security began removal proceedings against Agustin Ortega-Lopez, following his misdemeanor conviction for cockfighting, an act his immigration judge likened to child abuse and for which that IJ refused to cancel his removal. While cockfighting may be condemnable, the Ninth Circuit determined, it's questionable whether Ortega-Lopez's misdemeanor conviction involved the kind of moral turpitude that would justify removing him from the country and from his three children.
A Crime of Moral Turpitude?
After Homeland Security opened removal proceedings against Ortega-Lopez, he applied for a cancellation of removal under Immigration and Nationality Act section 240A. On February 14th, 2011, Ortega-Lopez's immigration judge gave him a very unhappy Valentine's Day present: he was ineligible for conviction because of his cockfighting conviction, which the IJ determined "categorically involves moral turpitude." According to the IJ:
Unlike hunting or racing, 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.
Cockfighting in particular was morally reprehensible, the IJ found, noting that it was outlawed in all 50 states and banned by federal law. The BIA agreed, finding that "sponsoring or exhibiting an animal in an animal fighting venture was categorically a CIMT," or crime of moral turpitude.
Can Chickens Be a Protected Class?
The Ninth was less convinced. Ortega-Lopez "was hardly the Don Corleone (or even the Fredo) of" the cockfighting enterprise. His involvement was minor and his punishment of probation "reflected his limited culpability." His record was otherwise clean.
And while cockfighting may be "vile and depraved," that does not end the inquiry, the Ninth Circuit found. For a crime to be a CIMT it must involve fraud, which cockfighting does not, or "grave acts of baseness or depravity." And, under Nunez v. Holder, this second category of CIMT "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."
Chickens, in the Ninth's view, were not "someone." And neither the IJ nor the BIA discussed how cockfighting involved a protected class of victim.
Though the Ninth noted that the BIA is not explicitly required to apply Nunez, it remanded the case "to consider this language ... as the crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs."
The decision is probably not carte blanche for cockfighters, but it is a good reminder that not every cruel act immediately amounts to a CIMT -- and it is certainly a welcome reprieve for Ortega-Lopez.