Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).
To constitute a crime involving moral turpitude (CIMT), the BIA has held an offense must have two essential elements: a culpable mental state and reprehensible conduct – conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.[i] This determination regarding the nature of a crime is governed by contemporary moral standards and may be susceptible to change based on the prevailing views of society.[ii]
However, the 9th Circuit has crafted their own definition of a CIMT, believing that CIMTs fall into two categories: those involving fraud and those involving grave acts of baseness or depravity.[iii] The 9th Circuit has further held that that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, on an action that affects a protected class of victim” while “harm to chickens is, at first blush, outside of the normal realm” of a crime involving moral turpitude.[iv]
The 9th Circuit remanded Ortega-Lopez and requested that the BIA further consider whether sponsoring or exhibiting an animal in an animal-fighting venture involves moral turpitude in light of that Court’s definition and standard of a CIMT. The BIA reconsidered, but found that violation of 7 U.S.C. 2156(a)(1)[v] is still categorically a CIMT. The BIA disagreed with the 9th Circuit’s two-category approach to defining CIMTs, finding it unrealistic given the nature of the broad legal term and the myriad of Federal and State statutes potentially at issue.[vi] For example, prostitution and incest are non-fraudulent crimes that may not harm the consenting adults.[vii] The BIA recognizes these crimes as morally reprehensible not on account of the presence of harm or the need to protect a vulnerable segment of society, but because of the socially degrading nature of commercialized sexual services and incestuous sexual relations.[viii] These crimes offend the most fundamental values of our society.[ix] Consequently, the BIA held that in non-fraudulent crimes the absence of harm to a person is not determinative for a CIMT finding.[x]
Returning to the crime in question, 7 U.S.C. 2156(a)(1) states that it is “unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” Therefore, conviction under this statute will satisfy the culpable mental state element of a CIMT. The BIA was left to determine whether animal fighting is reprehensible conduct. The Board found the conduct encompassed by 7 U.S.C. 2156(a)(1) celebrates animal suffering for one’s personal enjoyment and therefore transgresses the socially accepted rules of morality and breaches the duty owed to society in general: “animal fighting…is a spectacle of animal suffering engaged in purely for entertainment, the entre purpose of which is the intentional infliction of harm or pain on sentient beings that are compelled to fight, often to the death.”[xi] Such acts of senseless brutality have long been recognized as degrading, not only to the participants personally, but to all of society.[xii] And while harm to chickens may not automatically be a CIMT, the BIA determined that cockfighting is not a benign activity beyond the reach of moral turpitude.[xiii]
Accordingly, the BIA affirmed their prior decision that animal fighting in violation of 7 U.S.C. 2156(a)(1) is categorically a CIMT.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas. His previous experience includes removal defense, asylum, family-based petitions, investment visas, consular processing, and administrative/federal appeals.
[i] See Matter of Jiminez-Cedillo, 27 I&N Dec. 1, 3 (BIA 2017), remanded on other grounds, 885 F.3d 292, 300 (4th Cir. 2018).
[ii] Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA 1999).
[iii] Ortega-Lopez v. Lynch, 834 F.3d 1015, 1018 (9th Cir. 2016).
[iv] Nunes v. Holder, 594 F.3d 1124, 1134 (9th Cir. 2010).
[v] 7 U.S.C. 2156(a)(1) (2006)
[vi] See Matter of Cortes Medina, 26 L&N Dec. 79, 82 (BIA 2013).
[vii] See Rohit v. Holder, 670 F.3d 1085, 1088-91 (9th Cir. 2012); Gonzalez-Alvarado v. INS, 29 F.3d 245, 246-7 (9th Cir. 1994).
[viii] Matter of Ortega-Lopez, 27 I&N Dec. 382, 386 (BIA 2018).
[ix] See Rivera v. Lynch, 816 F.3d 1064, 1075 (9th Cir. 2016).
[x] Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018).
[xi] Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018); see also United States v. Stevens, 559 U.S. 460, 477 (2010) (noting that “cockfighting [has] long [been] considered immoral in America”).
[xii] See Commonwealth v. Tilton, 49 Mass. (8 Met.) 232, 234-35 (1844) (describing animal fighting as “barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who participate in it, and those who witness it”); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973) (stating that animal fighting events have been outlawed because they “debased and brutalized the citizenry who flocked to witness such spectacles”).
[xiii] Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018); see Animal Fighting Prohibition Enforcement Act of 2007: Hearing on H.R. 137 Before the Subcomm. On Crime, Terrorism, and Homeland Security of the H. Comm. Of the Judiciary, 110th Cong. 46 (2007) (testimony of Wayne Pacelle) (“[T]here are lots of controversial and tough moral questions about how we treat animals in society, but staged animal fights where people are putting animals in a pit to fight to injury or death just for the amusement…is not a tough moral question”).