Cite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
99
Matter of Agustin ORTEGA-LOPEZ, Respondent
Decided March 8, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of sponsoring or exhibiting an animal in an animal fighting venture in
violation of 7 U.S.C. § 2156(a)(1) (2006) is categorically a crime involving moral turpitude.
FOR RESPONDENT: Job Valverde, Esquire, Woodburn, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gina C. Emanuel, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:
In a decision dated February 14, 2011, an Immigration Judge found the
respondent removable, denied his application for cancellation of removal
under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(b) (2006), and ordered him removed from the United States. The
respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who is present in the
United States without being admitted or paroled. In 2009, he was convicted
in a United States district court of sponsoring or exhibiting an animal in an
animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006), for which
he was sentenced to 1 year of probation.
The Department of Homeland Security (“DHS”) charged the respondent
with removability under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2006). In proceedings before the Immigration Judge, the
respondent conceded removability and sought cancellation of removal for
nonpermanent residents under section 240A(b) of the Act. The Immigration
Judge pretermitted the respondent’s application, concluding that he is
ineligible for relief under section 240A(b)(1)(C) of the Act because hisCite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
1 The Immigration Judge also concluded that even if the petty offense exception under
section 212(a)(2)(A)(ii) of the Act applied, the respondent’s conviction is for a crime
involving moral turpitude under section 237(a)(2)(A)(i), and he is thus statutorily ineligible
for cancellation of removal under section 240A(b)(1)(C). See Matter of Cortez, 25 I&N
Dec. 301, 307 (BIA 2010). The respondent has not challenged this determination on appeal,
so the issue is not before us. Matter of Kochlani, 24 I&N Dec. 128, 129 n.3 (BIA 2007).
2 We have explained that, beyond these parameters, it is not realistic to develop a
comprehensive definition that would encompass all crimes that involve moral turpitude and
(continued…)
100
conviction was for an offense under section 212(a)(2) or section 237(a)(2) or
(3) of the Act, 8 U.S.C. § 1227(a)(2) or (3) (2006).1
On appeal, the respondent asserts that his conviction for unlawful animal
fighting in violation of 7 U.S.C. § 2156(a)(1) is not categorically for a crime
involving moral turpitude and that he is therefore eligible for cancellation of
removal. We disagree.
II. ANALYSIS
“Under the categorical approach, we compare the statute of conviction
to the generic definition of moral turpitude. If the statute bans only actions
that involve moral turpitude, then it is categorically a crime involving
moral turpitude.” Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012). To
determine that a statute describes conduct that is not categorically
tupitudinous, there must be “a realistic probability, not a theoretical
possibility,” that the statute would be applied to prosecute conduct that falls
outside the definition of moral turpitude. Id. at 1089 (quoting Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (stating that to demonstrate that
a statute criminalizes unintentional conduct, the alien “must at least point to
his own case or other cases in which the state courts in fact did apply the
statute” to conduct falling outside the generic definition)) (internal quotation
marks omitted); Matter of Cortes Medina, 26 I&N Dec. 79, 82 (BIA 2013).
“Moral turpitude refers generally to conduct which 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 Ajami, 22 I&N Dec. 949,
950 (BIA 1999). To involve moral turpitude, a crime requires two essential
elements: a culpable mental state and reprehensible conduct. See Matter of
Louissaint, 24 I&N Dec. 754, 756-57 (BIA 2009) (stating that a “crime
involving moral turpitude involves reprehensible conduct committed with
some degree of scienter, either specific intent, deliberateness, willfulness, or
recklessness” (citing Matter of Silva-Trevino, 24 I&N Dec. 687, 706 & n.5
(A.G. 2008))).2Cite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
(…continued)
exclude those that do not. Matter of Cortes Medina, 26 I&N Dec. at 82. This case
illustrates the difficulty in applying a narrow, static definition because of the evolving nature
of what conduct society considers to be contrary to accepted rules of morality as reflected
in criminal statutes. Notably, animal fighting was not a Federal offense until 1976. See
United States v. Gibert, 677 F.3d 613, 618 (4th Cir. 2012) (noting that “Congress’
prohibition of animal fighting is a relatively recent addition to the Animal Welfare Act”).
We have not previously addressed whether this offense is a crime involving moral turpitude,
and we are not aware of any circuit court decision that has.
101
Under 7 U.S.C. § 2156(a)(1), it is “unlawful for any person to knowingly
sponsor or exhibit an animal in an animal fighting venture.” The term “animal
fighting venture” is defined to include any event that involves a fight between
at least two animals that is conducted “for purposes of sport, wagering, or
entertainment.” § 2156(g)(1). However, the use of animals for hunting
activities is specifically excluded from the definition. An “animal” means any
live bird or mammal, except man. § 2156(g)(5). A violation of § 2156(a)(1)
is punishable by imprisonment for not more than 1 year. § 2156(e).
We conclude that animal fighting under 7 U.S.C. § 2156(a)(1) is
categorically a crime involving moral turpitude under the immigration laws
because the commission of this offense requires a culpable mental state and
involves reprehensible conduct. See Matter of Cortes Medina, 26 I&N Dec.
at 82. The offender must “knowingly” sponsor or exhibit an animal for
fighting, and crimes that are committed knowingly can satisfy the scienter
requirement. See Marmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir.
2009) (en banc) (affirming the Board’s determination that “DUI offenses
committed with the knowledge that one’s driver’s license has been suspended
or otherwise restricted are crimes involving moral turpitude”); see also, e.g.,
Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005) (“Crimes committed knowingly or
intentionally generally have been found, on the categorical approach, to be
CIMTs.”).
This crime also clearly involves reprehensible conduct. As the
Immigration Judge explained in his detailed decision, animal fighting, unlike
hunting or racing, is a spectacle of animal suffering engaged in purely for
entertainment, “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.” See generally United States
v. Stevens, 130 S. Ct. 1577, 1601-02 (2010) (Alito, J., dissenting) (discussing
the cruel, inhumane dog fighting subculture and its devastating and deadly
effects on the animals involved); United States v. Stevens, 533 F.3d 218, 245
(3d Cir. 2008 (Cowen, J., dissenting) (“Dog fighting itself is a grisly businessCite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
3 The consensus against cockfighting has not only been a matter of preventing cruel and
inhumane treatment of animals but also of preventing the spread of costly and dangerous
diseases to human beings, including the “bird flu.” United States v. Gibert, 677 F.3d at 620
(citing 153 Cong. Rec. S451-52 (daily ed. Jan. 11, 2007) (statement of Sen. Cantwell)).
102
in which two dogs either trained specifically for the purpose or maddened by
drugs and abuse are set upon one another and required to fight, usually to
the death of at least one and frequently both animals.” (quoting H.R. Rep. No.
94-801, at 9 (1976), reprinted in 1976 U.S.C.C.A.N. 758, 761, 1976 WL
13854 (Leg. Hist.) (internal quotation marks omitted))). Thus, animal fighting
is far from a victimless crime. It is a form of animal cruelty that involves
inherently base and depraved conduct by the people involved in it. See
generally United States v. Hackman, 630 F.3d 1078, 1084 (8th Cir. 2011)
(concluding that “the ordinary cruelty inherent in dog fighting” justified the
defendant’s base offense level for sentencing purposes related to his plea to
violating § 2156).
In enacting § 2156 in 1976 as a new section of the broader Animal Welfare
Act of 1966, Congress determined that it was in the national interest to further
regulate animals and activities in interstate and foreign commence and “to
protect the human values of this great Nation from the subversion of
dehumanizing activities.” United States. v. Gibert, 677 F.3d 613, 619-20
(4th Cir. 2012) (quoting H.R. Rep. No. 94-801, at 10) (internal quotation
marks omitted). The legislative history supporting § 2156 expressly states that
the practice of dogfighting is “dehumanizing, abhorrent, and utterly without
redeeming social value.” H.R. Rep. No. 94-801, at 10. When it passed the
animal fighting statute, Congress initially focused its concern on dogfighting.
United States. v. Gibert, 677 F.3d at 619. The bill, as introduced, “would have
prohibited fighting only between live dogs or other mammals,” but it was
amended during the process to include cockfighting. Id. at 619 n.6 (quoting
H.R. Rep. 94-801, at 10) (internal quotation mark omitted).
Cockfighting involves “pitting two cocks, usually equipped with sharp
blades on their legs, in a fight against each other.” United States v. Land,
Winston County, 221 F.3d 1194, 1196 (11th Cir. 2000); see also State
v. Bonilla, 28 A.3d 1005, 1011 n.6 (Conn. App. Ct. 2011) (citing legislative
history detailing testimony explaining that during cockfights, birds are forced
to fight until the death, that some cockfights can last 2 hours, and that the birds
are thrown into a pit until a winner is established by death); Nancy R. Hoffman
& Robin C. McGinnis, 2007-2008 Legislative Review, 15 Animal L. 265,
278-79 (2009) (stating that cockfighting “often involves ‘breeding birds for
viciousness, drugging them to heighten aggression, and fitting their legs with
razor-sharp knives or gaffs, which resemble curved ice picks’” (quoting a
March 7, 2008, document of the Humane Society of the United States)).3Cite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
103
“The animal fighting statute has been amended and expanded since its
passage in 1976 to reflect the increasing national consensus against this
activity.” United States. v. Gibert, 677 F.3d at 620; see also Humane Society
of U.S. v. U.S. Postal Service, 609 F. Supp. 2d 85, 92 (D.D.C. 2009)
(“Congress enacted § 2156 of the Animal Welfare Act, and has repeatedly
amended it over the years, to assure the humane treatment of animals and to
protect animals from being abused in illegal animal fights.”). Among the May
2007 amendments to the Animal Welfare Act, Congress made it “unlawful for
any person to knowingly sell, buy, transport, or deliver in interstate or foreign
commerce a knife, a gaff, or any other sharp instrument attached, or designed
or intended to be attached, to the leg of a bird for use in an animal fighting
venture.” 7 U.S.C. § 2156(e) (Supp. I 2007); see also Pub. L. No. 110-22,
§ 3(3), 121 Stat. 88, 88 (2007).
Further, today all 50 States and the District of Columbia have laws
prohibiting both dog fighting and cockfighting. See United States v. Stevens,
130 S. Ct. at 1583 (dog fighting); United States v. Gibert, 677 F.3d at 621 n.8
(cockfighting). Thus, as the Immigration Judge stated, the “sweeping
prohibitions [against animal fighting in the United States] show that we, as a
society, find animal fighting morally reprehensible, and thus morally
turpitudinous.”
Because the respondent is seeking relief from removal, he bears the burden
of showing that a realistic probability exists that the criminal statute under
which he was convicted has actually been applied, either in his case or
generically, to conduct that did not involve moral turpitude. See section
240(c)(4)(B) of the Act, 8 U.S.C. § 1229a(c)(4)(B) (2006); Young v. Holder,
697 F.3d 976, 988-89 (9th Cir. 2012) (stating that an alien seeking cancellation
of removal bears the burden of demonstrating that none of his prior
convictions bars him from eligibility); see also Gonzales v. Duenas-Alvarez,
549 U.S. at 193; Matter of Silva-Trevino, 24 I&N Dec. at 703 n.4. The
respondent has cited no published or unpublished decision that has applied
7 U.S.C. § 2156(a)(1) to conduct that is not morally turpitudinous, and we are
not aware of any. Nor has he presented any evidence that the Federal court
applied the statute to his case in such a manner. Matter of Cortes Medina,
26 I&N Dec. at 82 (citing Gonzales v. Duenas-Alvarez, 549 U.S. at 193).
Based on the foregoing analysis, we conclude that knowingly sponsoring
or exhibiting animals in an animal fight for sport, wager, or entertainment in
violation of 7 U.S.C. § 2156(a)(1) necessarily involves conduct that is “base,
vile, or depraved, and contrary to the accepted rules of morality” and therefore
is categorically a crime involving moral turpitude under the immigration laws.Cite as 26 I&N Dec. 99 (BIA 2013) Interim Decision #3777
4 Although it is not disputed that this case involved cockfighting, our determination that a
violation of 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude is not
dependent on the type of animal involved. See § 2156(g)(5).
104
Matter of Ajami, 22 I&N Dec. at 950.4 Accordingly, the respondent’s appeal
will be dismissed.
ORDER: The appeal is dismissed.