Agustin Ortega-Lopez v. Loretta E. Lynch

I. Factual and Procedural Background

A. Ortega-Lopez and Cockfighting

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.

B. Removal Proceedings

In March 2008, the Department of Homeland Security alleged that Ortega-Lopez was removable as “an alien present in the United States without being admitted or paroled.” See INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Ortega- Lopez filed an application for cancellation of removal under INA § 240(A)(b), 8 U.S.C. § 1229b(b).

On February 14, 2011, the IJ held that Ortega-Lopez was ineligible for cancellation of removal because his conviction was a CIMT. See INA § 240(A)(b)(1)(C). Applying Taylor v. United States, 495 U.S. 575 (1990), the IJ…

Concurrence by Judge BEA

OPINION

Agustín Ortega-Lopez, a Mexican citizen, contends that his misdemeanor conviction for participating in cockfighting in violation of the Unlawful Animal Venture Prohibition, 7 U.S.C. § 2156 (a)(1), does not qualify as a categorical crime involving moral turpitude (“CIMT”). The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) concluded that it did. We grant the petition and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

A. Ortega-Lopez and Cockfighting

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 Fre-do) 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.

B. Removal Proceedings

In March 2008, the Department of Homeland Security alleged…

concurring:

I concur fully in Judge Owens’ opinion. I write separately only to emphasize the unsuitability of the Taylor framework for determining whether a particular crime is one involving moral turpitude. See Ceron v. Holder, 747 F.3d 773, 785-89 (9th Cir. 2014) (en banc) (Bea, J., dissenting); Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1084-86 (9th Cir. 2007) (en banc) (Bea, J., dissenting) (“There is no generic federal crime of moral turpitude with elements similar to, or different from, a state crime of moral turpitude for the simple reason *1019-1035 there is no state crime of moral turpitude. One has to have a crime, such as burglary, to use the Taylor categorical analysis.”).