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Ortega-Lopez v. Lynch

United States Court of Appeals, Ninth Circuit

August 23, 2016

Agustin Ortega-Lopez, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Argued and Submitted July 8, 2016 Portland, Oregon

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A088-994-318

          Navid David Shamloo (argued), N. David Shamloo, Esq., Portland, Oregon, for Petitioner.

          Joanna L. Watson (argued), Trial Attorney; Ernesto H. Molina, Jr., Senior Litigation Counsel; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Thomas Hutchins and James Feroli, Immigrant & Refugee Appellate Center, Alexandria, Virginia, for Amici Curiae Thomas Hutchins, James Feroli, and Immigrant & Refugee Appellate Center.

          Before: Harry Pregerson, Carlos T. Bea, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Immigration

         The panel granted Agustin Ortega-Lopez's petition for review of the Board of Immigration Appeals' published precedential decision, Matter of Ortega-Lopez, 26 I. & N. Dec. 99 (BIA 2013), which held that his conviction for sponsoring or exhibiting an animal in an animal fighting venture under 7 U.S.C. § 2156(a)(1) is a categorical crime involving moral turpitude.

         The panel found that the IJ and BIA did not discuss how the statute of conviction, cockfighting, involves an action that affects a protected class of victim. The panel cited the finding in Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010), 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." The panel wrote that although this court's case law does not explicitly require the BIA to apply the language in Nunez, it thought a remand to consider the language was appropriate because the crime at issue involving harm to chickens is outside the normal realm of CIMTs.

         Concurring fully in the majority opinion, Judge Bea wrote separately to emphasize the unsuitability of the Taylor v. United States, 495 U.S. 575 (1990), framework to determine whether a particular crime is one involving moral turpitude.

          OPINION

          OWENS, Circuit Judge:

         Agustin 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 ...


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