Federal Judiciary

Ortega-Lopez v. Barr (9th Cir. - Oct. 20, 2020)

By Shaun Martin

What a difference the panel makes.

Agustin Ortega-Lynch gets caught helping to organize a cockfight, and the United States wants to deport him to Mexico as a result.  The dispositive question is whether aiding and abetting a cockfight is a "crime involving moral turpitude" ("CIMT").  His case comes up to the Ninth Circuit in 2016, and in an opinion written by Judge Owens, here's what the Ninth Circuit had to say:

"Ortega-Lopez came to the United States without permission in 1992. He has three children who are United States citizens. In 2008, Ortega-Lopez pled guilty to one misdemeanor count of cockfighting. He was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government?s sentencing position detailed: ?his involvement in the overall crime was relatively minor compared to? the other defendants in the case. His punishment?one year of probation with no jail time?reflected his limited culpability. He has no other convictions. . . .

Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that. 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. . . .

'[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.' [Cite] . . . . [T]he crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs."

Despite this language (and view on "first impression"), the panel elects to remand the case to the BIA to allow it a chance to explore whether aiding and abetting cockfighting is indeed a CIMT.

On remand, the BIA holds to its conclusion that it is.  Hence back up to the Ninth Circuit it goes.

Normally, you'd expect the same panel to hear the (renewed) appeal.  But that doesn't happen here.  The case instead goes to an entirely new panel.  (I'm not sure why.  Maybe the old panel didn't want to keep the case.  Maybe none of the parties asked 'em to do so.  Regardless:  new panel.)

Once it's back in front of the Ninth Circuit and in front of a new panel, Judge Owens isn't writing the opinion any more (nor is he on the panel).  The author of the opinion is instead Judge Ikuta.

And to say that her approach to the issue is different than Judge Owens is an understatement.

Here's what the new panel says:

"[T]he BIA determined that ?knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.? . . . The BIA reiterated that animal fighting entails extreme suffering (and sometimes death) of the animals involved, and gave examples of the brutal manner in which such animal fighting events were conducted. The BIA reasoned that ?the exhibition and celebration of suffering in animal fighting events? was ?contrary to basic standards of decency and humanity? and ?debased and brutalized the citizenry who flocked to witness such spectacles.? . . .

[T]he BIA explained 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. [Cite] The BIA distinguished this conduct from other practices, such as hunting and food production, that are ?inevitably harmful to animals? but are ?necessary or acceptable to accomplish the underlying utilitarian objective.? [Cite] The BIA also acknowledged that some jurisdictions in the United States do not criminalize cockfighting, but did not give this fact any weight. . . .

We conclude that the BIA has provided a well-reasoned basis for determining that ?knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.? . . . Accordingly, we conclude that a conviction under § 2156(a)(1) is categorically a crime involving moral turpitude."

So the new panel deports Mr. Ortega-Lopez to Mexico.

Full post as published by California Appellate Report on October 20, 2020 (boomark / email).