Agustin Ortega-Lopez v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUSTIN ORTEGA-LOPEZ, No. 18-72441
Petitioner,
Agency No.
v. A088-994-318
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 4, 2020
Pasadena, California
Filed October 20, 2020
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and David A. Ezra,* District Judge.
Opinion by Judge Ikuta
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 ORTEGA-LOPEZ V. BARR
SUMMARY**
Immigration
Denying Ortega-Lopez’s petition for review of a decision
of the Board of Immigration Appeals, the panel deferred to
the BIA’s conclusions that: 1) the offense of knowingly
sponsoring or exhibiting an animal in a fighting venture under
7 U.S.C. § 2156(a)(1) is a crime involving moral turpitude;
and 2) an alien who has been convicted of a crime involving
moral turpitude, for which a sentence of one year or longer
may be imposed, has been convicted of an offense under
8 U.S.C. § 1227(a)(2) that makes the alien ineligible for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).
In according Chevron deference to the BIA’s conclusion
that 7 U.S.C. § 2156(a)(1) is a crime involving moral
turpitude, the panel explained that the BIA considered Nunez
v. Holder, 594 F.3d 1124 (9th Cir. 2010), which generalized
that non-fraudulent crimes of moral turpitude almost always
involve an intent to harm someone, the actual infliction of
harm, or an action that affects a protected class of victims.
The BIA concluded that the absence of an intent to injure, an
injury to persons, or a protected class is not determinative,
explaining that this court and the BIA have concluded that the
Nunez categories are not exhaustive.
The panel also explained that the BIA provided a detailed
explanation of its rationale and responded to this court’s
concern that a crime involving harm to chickens appeared to
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ORTEGA-LOPEZ V. BARR 3
be outside the normal realm of crimes involving moral
turpitude. The 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. The BIA distinguished this
conduct from practices, such as hunting and food production,
that are harmful to animals but necessary or acceptable. The
panel also rejected Ortega-Lopez’s retroactivity challenge,
concluding that the BIA did not change the applicable law.
The panel next addressed Ortega-Lopez’s argument that
his conviction did not make him ineligible for cancellation of
removal. As relevant here, a cross-reference, 8 U.S.C.
§ 1229b(b)(1)(C), provides that an alien is not eligible for
cancellation under § 1229b(b) if the alien has “been
convicted of an offense under section . . . 1227(a)(2).”
Section 1227(a)(2), in turn, makes an alien deportable if the
alien is convicted of a crime involving moral turpitude
committed within five years after the date of admission, and
the conviction is one for which a sentence of one year or
longer may be imposed. Ortega-Lopez argued that he had not
been convicted of an offense under § 1227(a)(2) because the
government did not prove that his crime was committed
within five years after admission.
In Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA
2010), the BIA held that the cross-reference unambiguously
incorporated only language specifically pertaining to the
criminal offense, such as the offense itself and the sentence
imposed or potentially imposed. However, this court in
Lozano-Arredondo v. Sessions, 866 F.3d 1082 (9th Cir.
2017), after finding the cross-reference ambiguous,
suggested that § 1229b(b)(1)(C) could be interpreted as
incorporating the within-five-years element and altering the
4 ORTEGA-LOPEZ V. BARR
meaning of “admission” in § 1227(a) to mean “entry.” The
court declined to defer to Cortez Canales and remanded for
the BIA to reconsider its interpretation of “offense under” in
§ 1229b(b)(1)(C). In its decision in this case, Matter of
Ortega-Lopez, 27 I. & N. Dec. 382 (BIA 2018), the BIA
restated its interpretation from Cortez Canales and rejected
the potential alternative interpretation suggested by Lozano-
Arredondo.
The panel held that the BIA’s interpretation in Ortega-
Lopez was reasonable, explaining that the BIA held that
construing the word “admission” to mean “entry” would be
contrary to the overall purpose of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996, which
replaced the term “entry” with “admission.” Further, the BIA
evaluated the legislative history cited in Lozano-Arredondo
and concluded that it neither undermined Cortez Canales nor
supported an alternative interpretation. Thus, the panel
deferred to the BIA’s conclusion that an alien is ineligible for
cancellation of removal if the alien has been convicted of a
crime involving moral turpitude for which a sentence of one
year or more may be imposed, regardless whether the alien
meets the immigration prerequisites for inadmissibility or
deportability.
COUNSEL
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
ORTEGA-LOPEZ V. BARR 5
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
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
6 ORTEGA-LOPEZ V. BARR
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 (2012) (quoting
Landon v. Plasencia, 459 U.S. 21, 25 (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
ORTEGA-LOPEZ V. BARR 7
privileges in immigration proceedings that are not available
to aliens who present themselves for inspection at a port of
entry.” Torres v. Barr, ___ F.3d ___, ___, 2020 WL
5668478, at *8 (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. 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 (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.
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
8 ORTEGA-LOPEZ V. BARR
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.
1
This requirement is subject to the domestic violence waiver not
applicable here. § 1229b(b)(1), (5).
ORTEGA-LOPEZ V. BARR 9
§ 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)
2
The Government filed an unopposed motion to supplement the
certified administrative record with the superseding information to which
Ortega-Lopez pleaded guilty. ECF No. 21. The unopposed motion is
GRANTED and the superseding information shall be considered as part
of the administrative record.
10 ORTEGA-LOPEZ V. BARR
(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
3
Based on its review, Nunez held that a conviction in California for
indecent exposure was not categorically a crime involving moral turpitude,
because the full range of conduct prohibited by the statute (which included
nude dancing at bars) was not “base, vile, and depraved.” 594 F.3d
at 1133, 1136. Nunez did not defer to the BIA’s contrary decision,
because it was unpublished and provided only conclusory analysis. Id. at
1133. After the BIA issued a precedential opinion reaffirming its
conclusion that the California indecent exposure statute was a crime
involving moral turpitude, we deferred to the BIA’s published opinion and
overruled Nunez. See Betansos v. Barr, 928 F.3d 1133, 1141–42 (9th Cir.
2019) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005)).
ORTEGA-LOPEZ V. BARR 11
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 dismissed his
appeal. Id. at 398. Ortega-Lopez again petitions for review.
We have jurisdiction under 8 U.S.C. § 1252(a).
III
Ortega-Lopez raises two primary challenges to the denial
of his application for cancellation of removal. First, he
argues that 7 U.S.C. § 2156(a)(1) is not categorically a crime
involving moral turpitude. Second, he argues that the BIA
erred in concluding that he had been “convicted of an offense
under section . . . 1227(a)(2)” because the government failed
to prove that the crime was “committed within five years . . .
after the date of admission,” § 1227(a)(2)(A)(i). We consider
each argument in turn.
A
We first consider Ortega-Lopez’s argument that his
conviction for violation of § 2156(a)(1) was not a crime
involving moral turpitude. We determine whether an offense
is a crime involving moral turpitude by applying the
categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990). See Marmolejo-Campos v. Holder,
558 F.3d 903, 912 (9th Cir. 2009) (en banc). Under the
12 ORTEGA-LOPEZ V. BARR
categorical approach, we determine whether the crime of
conviction contains all the elements of the generic federal
offense; in general, we first define the elements of the federal
generic offense, and then compare it to the statute of
conviction. Id.
We accord Chevron deference to the BIA’s exercise of its
authority to give “ambiguous statutory terms concrete
meaning through a process of case-by-case adjudication.”
INS v. Aguierre-Aguierre, 526 U.S. 415, 425 (1999);
Marmolejo-Campos, 558 F.3d at 909. That means we are
limited to determining whether the agency’s interpretation of
an ambiguous term in the Immigration and Naturalization Act
(INA) “is based on a permissible construction of the statute.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843 (1984). An agency’s interpretation is permissible so
long as it is “not clearly contrary to the plain meaning of the
statute.” Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.
2005).
We have acknowledged that the phrase “crime involving
moral turpitude” is inherently ambiguous, and neither we nor
the BIA have established any clear-cut criteria “for
determining which crimes fall within that classification and
which crimes do not.” Nunez, 594 F.3d at 1130. Because the
BIA has authority to interpret the term “crime involving
moral turpitude” as used in the INA, interpretations provided
by the BIA in published opinions are entitled to deference
under Chevron. Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.
2014) (en banc).
The BIA has defined a crime involving moral turpitude as
having “two essential elements: [1] reprehensible conduct and
[2] a culpable mental state.” Matter of Silva-Trevino, 26 I. &
ORTEGA-LOPEZ V. BARR 13
N Dec. 826, 834 (BIA 2016). Conduct is reprehensible if it
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.” Matter of Jimenez-Cedillo,
27 I. & N. Dec. 1, 3 (BIA 2017) (citation omitted).4 Because
this definition does not meaningfully delineate the elements
of the offense, the BIA “has sensibly moved from trying to
define the phrase itself to instead giving examples of the
types of offenses that qualify as ‘crimes involving moral
turpitude.’” Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020).
We have deferred to the BIA’s approach of identifying
“examples of the types of offenses that qualify as crimes
involving moral turpitude,” when the BIA sets out the
example in a published opinion. Id.; see also Marmolejo-
Campos, 558 F.3d at 909.
Applying this approach here, the BIA determined that
“knowingly sponsoring or exhibiting an animal in an animal
fighting venture is a crime involving moral turpitude.”
Ortega-Lopez III, 27 I. & N. Dec. at 387. The BIA derived
these elements of the offense from Congress’s criminalization
of this conduct in § 2156(a). To be convicted under 7 U.S.C.
§ 2156(a)(1) (2006), a person must “knowingly sponsor or
exhibit an animal in an animal fighting venture.”5 The statute
4
We have held that crimes involving moral turpitude fall into two
categories: “[1] those involving fraud and [2] those involving grave acts
of baseness or depravity.” Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th
Cir. 2012). Our definition of moral turpitude for nonfraudulent offenses
is substantially the same as the BIA’s. Silva v. Barr, 965 F.3d 724, 731
(9th Cir. 2020).
5
The statute also included a jurisdictional element: the government
must prove that “any animal in the venture was moved in interstate or
foreign commerce.” § 2156(a)(1). Such jurisdictional elements are
14 ORTEGA-LOPEZ V. BARR
defined the term “animal” to mean “any live bird, or any live
dog or other mammal, except man.” § 2156(g)(5) (2006)
(current version at § 2156(f)(4)). It defined the term “animal
fighting venture” to mean “any event which involves a fight
between at least two animals and is conducted for purposes of
sport, wagering, or entertainment.” § 2156(g)(1) (2006)
(current version at § 2156(f)(1)). Excepted from the
definition of “animal fighting venture” is “any activity the
primary purpose of which involves the use of one or more
animals in hunting another animal or animals, such as
waterfowl, bird, raccoon, or fox hunting.” Id.6
The BIA explained why the language in Nunez, which
provided a categorization of crimes involving moral
turpitude, did not change its conclusion that the offense
described in § 2156(a) is a crime involving moral turpitude.
First, Nunez’s categories are “not exhaustive,” as the Ninth
Circuit has acknowledged. Ortega-Lopez III, 27 I. & N. Dec.
at 386 (citing Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir.
immaterial in applying a categorical approach. Torres v. Lynch, 136 S. Ct.
1619, 1622 (2016).
6
Although there have been amendments to § 2156(a)(1) since the
time of Ortega-Lopez’s offense, the statute has not changed materially.
Ortega-Lopez was charged with an offense committed in March 2007. In
May 2007, Congress amended § 2156 to move the interstate-commerce
nexus from § 2156(a)(1) to § 2156(f)(1) and to modify slightly the
definitions of “animal” and “animal fighting venture.” See, e.g.,
§ 2156(f)(4) (deleting the reference to “live dog” in the definition of
“animal”); § 2156(f)(1) (amending the term “animal fighting venture” to
include fights “to be conducted”).
ORTEGA-LOPEZ V. BARR 15
2016); Nunez, 594 F.3d at 1131 & n.4.).7 Moreover, the BIA
did not deem crimes involving moral turpitude “to be strictly
limited” to the categories described in Nunez. Id. According
to the BIA, the phrase “crime involving moral turpitude” was
“not amenable to a clear-cut comprehensive definition that
identifies certain offenses to the exclusion of all others.” Id.
The BIA observed that the Ninth Circuit had likewise found
that some non-fraudulent crimes, such as incest and
prostitution, are crimes involving moral turpitude even if they
do not require proof of an intent to injure, an injury to
persons, or a protected class of victims. Id. (citing Rohit v.
Holder, 670 F.3d 1085, 1088–91 (9th Cir. 2012) (solicitation
of prostitution); Gonzales-Alvarado v. INS, 39 F.3d 245,
246–47 (9th Cir. 1994) (incest)).8 Based on this reasoning,
the BIA concluded that, “in assessing whether an offense that
does not involve fraud is a crime involving moral turpitude,
the absence of an intent to injure, an injury to persons, or a
protected class of victims is not determinative.” Id. at 387.
The BIA adopted this principle as a nationwide rule “because
a single rule furthers the paramount need for ‘uniformity in
the administration of immigration laws.’” Id. (quoting
7
Indeed, Nunez itself stated that it did not “suggest that every crime
that has been held by us to involve moral turpitude falls within this
grouping.” 594 F.3d at 1131 n.4. Rather, Nunez confirmed that its
generalization “does not seek to encompass every single crime that has
been held to involve moral turpitude (largely because we do not think
there is any meaningful characterization that can do so).” Id.
8
We have also held, in caselaw not cited by Ortega-Lopez III, that
solicitation of possession of marijuana for sale is a crime involving moral
turpitude for immigration purposes. Barragan-Lopez v. Mukasey,
508 F.3d 899, 903 (9th Cir. 2007); see also Atl. Richfield Co. v. Guerami,
820 F.2d 280, 282 (9th Cir. 1987) (describing possession of heroin for sale
as a crime involving moral turpitude for purposes of the Petroleum
Marketing Practices Act).
16 ORTEGA-LOPEZ V. BARR
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir.
2004)).
Having addressed our instruction to consider Nunez’s
categorization of crimes involving moral turpitude, the BIA
turned to providing a detailed explanation of its rationale for
the conclusion that sponsoring or exhibiting an animal in an
animal fighting venture is reprehensible. Id. at 387–89. 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. Id. 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.” Id. at 388 (quoting Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973)). It
also “desensitizes spectators to brutality and violence.” Id.
Responding to Ortega-Lopez II’s concern that a crime
“involving harm to chickens” appeared to be outside the
“normal realm” of crimes involving moral turpitude, Ortega
Lopez II, 834 F.3d at 1018, the 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. Ortega-
Lopez III, 27 I. & N. Dec. at 388–89 & n.7. 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.” Id. at 389. The BIA also
acknowledged that some jurisdictions in the United States do
not criminalize cockfighting, but did not give this fact any
weight. The BIA reaffirmed that the “clear consensus in
ORTEGA-LOPEZ V. BARR 17
contemporary American society” holds “sponsoring or
exhibiting the spectacle of animal suffering” to be “morally
reprehensible.” Id. at 390. Further, the BIA noted that
offenses such as prostitution “that are widely viewed as
morally turpitudinous” are not criminalized in every state. Id.
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.” Id. at 387. Because this
explanation is in a published opinion, it is entitled to
deference under Chevron. Ceron, 747 F.3d at 778. We must
defer to such a permissible interpretation, even if it is “not
necessarily the only possible interpretation, nor even the
interpretation deemed most reasonable by the courts.”
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 217–18
(2009). Accordingly, we conclude that a conviction under
§ 2156(a)(1) is categorically a crime involving moral
turpitude.
Ortega-Lopez raises one additional argument. He claims
that the BIA’s determination regarding § 2156(a)(1) should
not be applied to him, because he was convicted of an offense
under this statute many years before the BIA announced its
interpretation. We disagree. If “an agency consciously
overrules or otherwise alters its own rule or regulation” or
“expressly considers and openly departs from a circuit court
decision,” we must analyze whether the new rule applies to
conduct that took place before the agency reached its
conclusion. See Garfias-Rodriguez v. Holder, 702 F.3d 504,
518–19 (9th Cir. 2013) (en banc); accord Olivas-Motta v.
Whitaker, 910 F.3d 1271, 1277 (9th Cir. 2018). We
sometimes refer to this inquiry as a retroactivity analysis.
Garfias-Rodriguez, 702 F.3d at 517. We do not engage in
18 ORTEGA-LOPEZ V. BARR
such an analysis here, however, because the BIA did not
change the law. It is undisputed that the BIA did not overrule
its precedent. Nor did the BIA reach a conclusion “that is
contrary to a ruling previously set forth by a court of
appeals.” Id. at 516. Although the BIA concluded that
Nunez’s categories were not exclusive, Nunez did not purport
to provide a limiting definition of crimes involving moral
turpitude and expressly stated that it was not doing so.
594 F.3d at 1131 n. 4. The BIA’s case-by-case application of
the categorical approach here does not constitute a change in
the law “any more than a judicial determination construing
and applying a statute to a case in hand.” Olivas-Motta,
910 F.3d at 1278 (internal quotation marks omitted) (quoting
Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 135
(1936)). With no change in the law, there are no retroactivity
concerns, and therefore Ortega-Lopez’s argument fails.9
9
In his reply brief, Ortega-Lopez argues for the first time that his
offense is not a categorical match for a crime involving moral turpitude,
because he was convicted of aiding and abetting under 18 U.S.C. § 2(a).
This argument is meritless. Aiding and abetting is not a separate offense;
it is “simply one means of committing” the underlying crime. United
States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005). There is no
distinction between aiding and abetting liability and liability as a principal
under federal law. See Roman-Suaste v. Holder, 766 F.3d 1035, 1039–40
(9th Cir. 2014) (citing 18 U.S.C. § 2). A person who aids or abets a crime
“falls, like a principal, within the scope” of the generic definition of the
underlying offense. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007). We look to the “underlying crimes in determining whether
convictions for inchoate offenses constitute crimes involving moral
turpitude.” Barragan-Lopez, 508 F.3d at 903 (solicitation); accord
McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam)
(conspiracy). Therefore, Ortega-Lopez’s aiding and abetting liability does
not alter the categorical approach analysis here.
ORTEGA-LOPEZ V. BARR 19
In sum, we defer to the BIA’s permissible conclusion that
knowingly sponsoring or exhibiting an animal in an animal
fighting venture is a crime involving moral turpitude, and we
reject Ortega-Lopez’s arguments to the contrary. Because no
dispute exists that a sentence of a year or longer could be
imposed for a violation of § 2156(a)(1), we determine that a
conviction under this section was a conviction of a crime
involving moral turpitude for which a sentence of a year or
longer may be imposed.10
B
We next turn to the question whether the BIA erred in
concluding that Ortega-Lopez had been “convicted of an
offense under section . . . 1227(a)(2),” § 1229b(b)(1)(C),
because the government failed to prove that the crime was
“committed within five years . . . after the date of admission,”
§ 1227(a)(2)(A)(i).
1
We again begin with some background. To be eligible for
cancellation of removal under § 1229b(b), the alien must not
have “been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3),” among other things. 8 U.S.C.
§ 1229b(b)(1). In Gonzalez-Gonzalez v. Ashcroft, we
10
Ortega-Lopez argues that the phrase “crime involving moral
turpitude” is unconstitutionally vague. We have repeatedly rejected this
argument on the ground that it is foreclosed by both Supreme Court and
Ninth Circuit precedent. See, e.g., Islas-Veloz v. Whitaker, 914 F.3d 1249,
1251 (9th Cir. 2019), cert. denied sub nom., Islas-Veloz v. Barr, 140 S. Ct.
2704 (2020); Martinez-de Ryan v. Whitaker, 909 F.3d 247, 251–52 (9th
Cir. 2018), cert. denied sub nom., Martinez-de Ryan v. Barr, 140 S. Ct.
134 (2019). Bound by that precedent, we reject the argument again.
20 ORTEGA-LOPEZ V. BARR
concluded that “the plain language of § 1229b indicates that
it should be read to cross-reference a list of offenses in three
statutes, rather than the statutes as a whole.” 390 F.3d 649,
652 (9th Cir. 2004). Moreover, we held that “[t]he most
logical reading of ‘convicted of an offense under’ is that
reached by the BIA: ‘convicted of an offense described
under’ each of the three sections.” Id. We reasoned that an
alien cannot be “convicted under” § 1227, because it is not a
criminal statute. Id. Rather, the elements of § 1227 are
“prerequisites to deportability.” Id. Because the cross-
reference in § 1229b(b) focused on the list of criminal
offenses (not the other prerequisites to deportability), we held
it was irrelevant whether the alien seeking cancellation of
removal was in the country unlawfully (and therefore subject
to grounds of inadmissibility) or was in the country lawfully
(and therefore subject to grounds of deportability). Id. at
651–53. Regardless of the alien’s status, the alien did not
qualify for cancellation of removal if the alien had been
convicted of an offense listed in any of the three statutes. Id.
In light of Gonzalez-Gonzalez, the BIA subsequently held
that the cross-reference in § 1229b(b)(1)(C) unambiguously
incorporated “only language specifically pertaining to the
criminal offense, such as the offense itself and the sentence
imposed or potentially imposed.” Cortez Canales, 25 I. & N.
Dec. at 307–08. In Cortez Canales, the BIA rejected the
alien’s argument that § 1229b(b)(1)(C) also incorporated
language in § 1227(a)(2) “pertaining only to aspects of
immigration law, such as the requirement that the alien’s
crime be committed ‘within five years . . . after the date of
admission.’” Id. According to the BIA, this exclusion of
immigration-related elements “clearly follows” from the
conclusion in Gonzales-Gonzales that “the plain language of
section [1229b(b)(1)(C)] should be read to cross-reference a
ORTEGA-LOPEZ V. BARR 21
list of offenses in three statutes, rather than the statutes as a
whole.” Id. at 308.
To further support this conclusion, the BIA compared the
cross-reference in § 1229b(b)(1)(C) to the cross-reference in
§ 1229b(d)(1) (the stop-time rule), which relates to an offense
“that renders the alien inadmissible to the United States under
section 1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this title.”
The BIA noted that the stop-time rule showed Congress knew
“how to draft statutory language requiring an alien to be
inadmissible or removable under a specific charge” in a
cross-referenced section. Cortez Canales, 25 I. & N. Dec. at
308. The BIA concluded that, “[s]ince Congress did not
include language requiring that an alien be inadmissible or
removable in section [1229b(b)(1)(C)], it is clear that it did
not intend for the immigration-related elements” of the three
cross-referenced statutes to be incorporated in
§ 1229b(b)(1)(C). Id. The BIA explained in the alternative
that, “even if the language of [§ 1229b(b)(1)(C)] were found
to be ambiguous, we would interpret it in the same manner.”
Id.
In Lozano-Arredondo, we addressed the question whether
the cross-reference in § 1229b(b)(1)(C) to an “offense under”
§ 1227(a)(2) incorporates only the offense-related elements
or also included the immigration-related elements, namely,
that an alien is deportable if the alien commits a listed offense
“more than five years after his admission to the United
States.” 866 F.3d at 1085. Although we acknowledged the
BIA’s decision in Cortez-Canales, we declined to defer to it
because the “BIA erroneously concluded Congress’ intent
had been clearly expressed at Chevron step one, and thus did
not exercise its expertise and discretion in interpreting the
22 ORTEGA-LOPEZ V. BARR
statute at Chevron step two.” Id. (citation omitted). Even
though the BIA explained it would have reached the same
conclusion if the cross-reference were ambiguous, Lozano-
Arredondo classified this statement as an insufficient “one-
sentence caveat” that failed to exercise the BIA’s “expertise
and discretion in interpreting the statute.” Id. at 1093
(quoting Gila River Indian Cmty. v. United States, 729 F.3d
1139, 1149, 1150 (9th Cir. 2013)).
Contrary to the BIA’s view, Lozano-Arredondo deemed
the cross-reference in § 1229b(b)(1)(C) to be ambiguous and
susceptible to several interpretations. Id. at 1089. Lozano-
Arredondo explained that the cross-reference in
§ 1229b(b)(1)(C) could refer to “(1) only the criminal offense
itself—a crime involving moral turpitude; (2) the criminal
offense plus one additional element of the deportable offense
(i.e., the criminal offense plus either the within-five-years
limitation or the sentence-length limitation); or (3) all three
elements of the deportable offense.” Id. at 1085, 1089–90.
Lozano-Arredondo suggested that the “all three elements”
interpretation was the most reasonable. Id. at 1091. It noted
that Gonzales-Gonzales “did not foreclose” an interpretation
of the cross-reference in § 1229b(b)(1)(C) that incorporates
the element in § 1227(a)(2)(A)(i) requiring the crime to have
been “committed within five years . . . after the date of
admission.” Lozano-Arredondo, 866 F.3d at 1090. Lozano-
Arredondo also noted its view that the legislative history of
§ 1229b(b)(1)(C) “indicates Congress understood
§ 1229b(b)(1)(C) to incorporate all elements of the deportable
offenses under § 1227(a)(2),” including the five year
requirement. Id. at 1090–91. In reaching this conclusion,
Lozano-Arredondo relied on a House Conference Report
which described § 1229b(b)(1) as follows:
ORTEGA-LOPEZ V. BARR 23
“Section 1229b(b)(1) provides that the Attorney General may
cancel removal in the case of an alien who has at no time
been convicted of an offense that would render the alien
inadmissible under § 1182(a)(2)(A) or deportable under
§ 1227(a)(2).” Id. (cleaned up) (quoting H.R. Rep. No. 104-
828, at 213 (1996) (Conf. Rep.), 1996 WL 563320).
Under the all-three-elements interpretation, an alien who
had committed a crime involving moral turpitude would still
be eligible for cancellation of removal if the crime had been
committed more than five years after the date of admission.
Lozano-Arredondo acknowledged that some aliens seeking
cancellation of removal were never admitted and, if the cross-
reference in § 1229b(b)(1)(C) incorporated the within-five-
years element, aliens who were in the country unlawfully
“could never be deemed ineligible for cancellation under
§ 1227(a)(2)(A)(i).” 866 F.3d at 1092. Such a result “would
be contrary to our holding in Gonzalez-Gonzalez that offenses
under § 1227(a)(2) do apply to non-admitted aliens in the
cancellation context.” Id. Excluding the within-five-years
element altogether, as the BIA had done, was permissible to
avoid this conflict. But Lozano-Arredondo proposed a
different option: The BIA could interpret “admission” in this
limited context to mean “physical ‘entry’ when applied to an
alien who has not been ‘admitted’” as defined in the INA. Id.
Without holding that any one interpretation was the “only
reasonable interpretation,” Lozano-Arredondo “decide[d]
only that the inclusion of the word ‘admission’ as part of the
within-five-years element does not compel the conclusion
that Congress intended to exclude this element from the
‘offense under’ § 1227(a)(2)(A)(I).” 866 F.3d at 1092–93.
Given its holding that § 1229b(b)(1)(C) was ambiguous,
Lozano-Arredondo stated that “[t]he BIA erred at Chevron
24 ORTEGA-LOPEZ V. BARR
step one by concluding Congress clearly intended not to
incorporate the within-five-years element of
§ 1227(a)(2)(A)(i).” Id. at 1093. Therefore, Lozano-
Arredondo declined to defer to Cortez Canales and remanded
the case to the BIA for the BIA to “reconsider its
interpretation of the phrase ‘offense under’ in
§ 1229b(b)(1)(C).” Id.
2
The BIA’s analysis in this case responded to Lozano-
Arredondo’s ruling that the cross-reference in
§ 1229b(b)(1)(C) to “an offense under” § 1227(a)(2) was
ambiguous. The BIA first restated its prior interpretation in
Cortez Canales, that the cross-reference in § 1229b(b)(1)(C)
incorporated only the offense itself and the sentence imposed
or potentially imposed. Ortega-Lopez III, 27 I. & N. Dec.
at 392. The BIA then turned to the potential alternative
interpretation suggested by Lozano-Arredondo, that
§ 1229b(b)(1)(C) incorporated the within-five-years element
and simultaneously altered the meaning of admission “as
that term is used throughout [section 1227(a)]” to mean
“entry.” Id. The BIA gave a reasoned explanation for
declining to adopt this alternative interpretation and for
reaffirming the interpretation it had adopted in Cortez
Canales.
First, the BIA noted that “one of the overarching themes”
of IIRIRA “was to replace the term ‘entry’ with the term
‘admission,’ thereby providing that a person who had entered
the United States without meeting the specific statutory
requirements for an admission would be subject to grounds of
inadmissibility, rather than deportability.” Id. at 392–93.
Drawing on the explicit distinctions between “entry” and
ORTEGA-LOPEZ V. BARR 25
“admission” that were made in IIRIRA amendments to the
INA, the BIA held that “[c]onstruing the word ‘admission’ to
mean ‘entry’ would be contrary to that overall purpose.” Id.
at 393. For instance, “Congress demonstrated that it
considered the terms to have different meanings because it
retained the term ‘entry’ in certain provisions.” Id. (citing
8 U.S.C. § 1227(a)(1)(E)); see also, 8 U.S.C. § 1101(13)(A)
(defining “admission” to mean “the lawful entry of the alien
into the United States after inspection and authorization by an
immigration officer”). The BIA noted that we had previously
rejected the argument that the terms “entry” and “admission”
were interchangeable. Ortega-Lopez III, 27 I. & N. Dec.
at 397 (citing Xi, 298 F.3d at 838).
The BIA also reasoned that a statute’s cross-reference to
a different statutory section functions as an “incorporation”
of the referenced section and not as a “modification” of the
referenced section. Id. at 393 (citing Torres v. Lynch, 136 S.
Ct. 1619, 1626 n.5 (2016)). Thus, the “most reasonable
reading” of the cross-reference in § 1229b(b)(1)(C) to an
“offense under” § 1227(a)(2) was that § 1229b(b)(1)(C)
incorporated the offense-related elements of § 1227(a)(2) but
not the immigration-related elements. Id. (citing Torres,
136 S. Ct. 1619, as an example of a partial incorporation by
reference in the INA).
The BIA rejected the suggestion that this reading would
render superfluous the within-five-years element in
§ 1227(a)(2). Id. at 393–94. The BIA instead explained that
its interpretation “actually avoids rendering language in the
cancellation of removal statute superfluous,” because the BIA
26 ORTEGA-LOPEZ V. BARR
recognized the difference between lists of offenses that
prevent an alien from being eligible for relief from removal
and the prerequisites that render an alien removable. Id.
at 394.
Second, the BIA evaluated the legislative history cited in
Lozano-Arredondo and concluded that it neither undermined
Cortez Canales nor supported an alternative interpretation.
Id. The BIA determined that, notwithstanding the language
in the House Conference Report on IIRIRA, it would be
unreasonable to conclude that Congress intended to require
that an alien who had never been admitted (and was subject
to grounds of inadmissibility, not grounds of deportability)
was deportable for purposes of cancellation of removal, yet
not actually deportable “in the sense that the term is normally
understood.” Id. at 395. Moreover, Congress did not adopt
the specific language set out in the House Conference Report
(and quoted in Lozano-Arredondo), even though it had
adopted similar language for the stop-time rule. Id.
at 395–96.
Based on its reasoned analysis of the statutory language,
and after giving detailed consideration to Lozano-Arredondo
and relevant legislative history, the BIA concluded again that
the best interpretation of § 1229b(b)(1)(C) “is that the
‘offense under’ language is a limited cross-reference, one that
incorporates only the offense-specific characteristics of the
cross-referenced sections.” Id. at 397. Therefore, the BIA
reaffirmed its decision in Cortez Canales.
Presented with ambiguous statutory language, “we may
not supply the interpretation of the statute we think best (as
we would without an agency pronouncement).” Marmolejo-
Campos, 558 F.3d at 908. We are instead limited under
ORTEGA-LOPEZ V. BARR 27
Chevron to determining whether the agency’s interpretation
is permissible and “not clearly contrary to the plain meaning
of the statute.” Parrilla, 414 F.3d at 1041. Here, Lozano-
Arredondo recognized that the cross-reference in
§ 1229b(b)(1)(C) is ambiguous and could be interpreted as
referring only to the “criminal offense plus . . . the sentence-
length limitation,” 866 F.3d at 1085, 1089–90. And although
we offered our own possible interpretation of the statute, we
expressly noted that “we are not yet prepared to hold it is the
only reasonable interpretation” and acknowledged that our
suggested interpretation “goes beyond the ordinary
immigration definition of admission.” Id. at 1092–93. We
also cautioned the BIA that holding constant the meaning of
“admission” in § 1227(a)(2) would require “ignoring either
the legislative history or our holding in Gonzalez-Gonzales
that § 1227(a)(2) applies both to admitted and non-admitted
aliens.” Id. at 1092.
The BIA ignored neither legislative history nor our prior
holding in Gonzales-Gonzales. It grappled with legislative
history before it declined to adopt Lozano-Arredondo’s
alternative approach that would require “reconstruing a cross-
referenced statute for the purpose of resolving an ambiguity
in the referencing provision.” Ortega-Lopez III, 27 I. & N.
Dec. at 393. The BIA instead favored a reasonable approach
that interpreted “an ambiguous statute in a manner that is
consistent with its statutory cross-reference.” Id.
We conclude that the BIA adopted a permissible
interpretation of the statute based on its expertise and
discretion. It is reasonable to conclude that the offenses
described under the cross-referenced sections “apply to all
aliens—regardless of admission status—for purposes of
§ 1229b(b)(1)(C)’s bar on cancellation of removal.” Lozano-
28 ORTEGA-LOPEZ V. BARR
Arredondo, 866 F.3d at 1090 (citing Gonzales-Gonzales,
390 F.3d at 652). It also reasonable to conclude that
ambiguous statutory cross-references will not always
incorporate every component of the referenced section. See
Torres, 136 S. Ct. at 1625, 1634. And, in light of the
statutory text and legislative history, it was reasonable for the
BIA to reject an interpretation that would require a
redefinition of a statutorily defined term, “admission,” that
was central to the changes made by IIRIRA to the INA.
Thus, given that Lozano-Arredondo determined that
§ 1229b(b)(1)(C) was susceptible to the BIA’s interpretation
and the BIA’s interpretation is not clearly contrary to the
plain meaning of the statute, we defer to the BIA’s
interpretation.11
11
Ortega-Lopez also raises an argument based on Matter of Garcia-
Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003). Garcia-Hernandez
held that § 1229b(b)(1)(C) incorporated the “petty-offense” exception set
forth in § 1182(a)(2)(A)(ii)(I), so that an alien who has been convicted of
a crime involving moral turpitude that falls within this exception is not
ineligible for cancellation of removal. In explaining its reasoning, Garcia-
Hernandez stated that it “view[ed] the plain language of
[§ 1229b(b)(1)(C)] as incorporating the entirety of [§ 1182(a)(2)],
including the exception for petty offenses set forth therein.” This broad
statement has been abrogated in part by Gonzalez-Gonzalez, which held
that “[t]he plain language of § 1229b indicates that it should be read to
cross-reference a list of offenses in three statutes, rather than the statutes
as a whole.” 390 F.3d at 652. In light of this ruling, Ortega-Lopez cannot
rely on Garcia-Hernandez for the principle that § 1229b incorporates
§ 1227(a)(2) as a whole (including the within-five years element).
Therefore, we reject Ortega-Lopez’s argument that the BIA’s
interpretation here conflicts with Garcia-Hernandez.
ORTEGA-LOPEZ V. BARR 29
IV
In sum, we defer to the BIA’s conclusion that knowingly
sponsoring or exhibiting an animal in an animal fighting
venture is a crime involving moral turpitude described under
§ 1227(a)(2). We also defer to the BIA’s conclusion that,
pursuant to the cross-reference in § 1229b(b)(1)(C), an alien
is ineligible for cancellation of removal if the alien has been
convicted of a crime involving moral turpitude for which a
sentence of one year or more may be imposed, regardless
whether the alien meets the immigration prerequisites for
inadmissibility or deportability. Because Ortega-Lopez was
convicted of a violation of § 2156(a)(1), a crime involving
moral turpitude, he is ineligible for cancellation of removal.
PETITION DENIED.