Agustin Ortega-Lopez v. William Barr

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.