BIA: Animal fighting is crime involving moral turpitude

By University of Denver Sturm College of Law

Jun 4, 2013

The BIA held that sponsoring or exhibiting an animal in an animal-fighting venture is a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA March 8, 2013) (Grant, Malphrus, and Mullane, Board members). Board member Malphrus wrote the panel’s decision.

This case involved an individual who was not admitted or paroled. He conceded removability and sought cancellation of removal for non-LPRs. The IJ denied his cancellation application due to the animal fighting conviction, a violation of 7 U.S.C. § 2156(a)(1). Matter of Ortega-Lopez, 26 I&N Dec. at 99-100. On appeal to the Board, Ortega-López argued that the conviction is not a CIMT.

The BIA began by repeating its traditional formulation of moral turpitude: “[m]oral 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 Ortega-Lopez, 26 I&N Dec. at 100. This definition, the Board went on, consists of two requirements: “a culpable mental state and reprehensible conduct.” Matter of Ortega-Lopez, 26 I&N Dec. at 100.

There was no doubt that the animal fighting offense involved a culpable moral state. The statute clearly requires “knowingly” engaging in an animal-fighting venture. 8 U.S.C. § 2156(a)(1).

The trickier issue was whether the offense was inherently morally turpitudinous. To answer this question, the Board spent much of its opinion distinguishing animal fighting from hunting. Animal fighting, the Board approvingly quoted the IJ as explaining, “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.’” Matter of Ortega-Lopez, 26 I&N Dec. at 101. The Board later described these animals as victims. Matter of Ortega-Lopez, 26 I&N Dec. at 102.

That sounds a lot like what happens in hunting too—the point being to kill animals—except perhaps for the rare hunter who needs to hunt to subsist. Of course, the IJ and BIA saw it differently. In support, the Board cited two dissenting opinions—one from Justice Alito and another from Judge Cowen on the Third Circuit—describing the “deadly” (in Alito’s words) or “grisly” (in Cowen’s) nature of dog fighting. Matter of Ortega-Lopez, 26 I&N Dec. at 101 (citing United States v. Stevens, 130 S. Ct. 1577, 1601-02 (2010) (Alito, J., dissenting); United States v. Stevens, 533 F.3d 218, 245 (3d Cir. 2008) (Cowen, J., dissenting)).

Since Ortega-López’s conviction apparently involved cockfighting, the Board moved to explain that the moral reprehensibility of dog fighting is indistinguishable from cockfighting. Every state and Washington, DC prohibits both types of animal fighting. Matter of Ortega-Lopez, 26 I&N Dec. at 103. Moreover, the federal crime that Ortega-López was convicted of violating does too. Matter of Ortega-Lopez, 26 I&N Dec. at 103. Consequently, the offense involves moral turpitude and because Ortega-López did not show a realistic probability that he was or could be convicted of this crime without engaging in morally turpitudinous conduct, the Board concluded that the offense is inherently a CIMT. Matter of Ortega-Lopez, 26 I&N Dec. at 103.

As an interesting aside, the Board explained in a footnote that this is a good example of why the CIMT definition should be flexible. Animal fighting wasn’t a federal crime until 1976 so if we were to fix the definition of moral turpitude to social standards that existed when it was added to immigration law in 1891, it would exclude animal fighting. Instead, the flexible CIMT definition the Board uses allows it to account for “the evolving nature of what conduct society considers to be contrary to accepted rules of morality as reflected in criminal statutes.” Matter of Ortega-Lopez, 26 I&N Dec. at 101 n.2.