Agustin Ortega-Lopez v. Loretta E. Lynch
834 F.3d 1015
9th Cir.
2016
Check Treatment
Docket

*1 bankruptcy plan, “type” interest is junior to the claims Del Bi-

considered creditors, and according- unsecured

aggio’s 510(b).

ly under subordinated

C agree with the Circuit that Second approaches,

of the three Lehman Brothers likely the best 510(b)’s equal” provision “senior to or to claims affiliate secu- applies For purposes appeal,

rities.

however, adopt we need not a definitive

reading portion of the statute. Be- any legitimate reading

cause under 510(b), Biaggio’s gen- the claims of Del

eral unsecured creditors “senior to or claim,

equal [to]” Freeman’s his claim was

rightly subordinated to claims of Del creditors.

Biaggio’s

V bankruptcy properly court subordi- 510(b). claim under

nated Freeman’s

Fittingly, order of district court

affirming that is also judgment

AFFIRMED. ORTEGA-LOPEZ,

Agustin Petitioner, LYNCH, Attorney

Loretta E.

General, Respondent.

No. 13-71127 of Appeals,

United States Court

Ninth Circuit.

Argued July and Submitted

2016, Portland, Oregon August

Filed *2 (“IJ”) Judge and of Immigra-

tion Board (“BIA”) Appeals tion concluded that it did. grant fur- petition and remand for proceedings opin- ther consistent with this ion. Background

I. Factual and Procedural Ortega-Lopez Cockfighting A. and Ortega-Lopez came to the United States permission He three without In children citizens. who United States pled mis- Ortega-Lopez guilty one cockfighting. demeanor He was count (or hardly the Don Corleone even the Fre- do) Rather, as enterprise. gov- of this sentencing position ernment’s detailed: “his overall was involvement (argued), David Navid Shamloo relatively to” compared minor the other Shamloo, Portland, Oregon, Esq., David punishment— defendants the case. His for Petitioner. jail year probation with no time— (argued), L. Watson Trial Attor- Joanna limited no culpability. reflected his He has Molina, Jr., Liti- H. ney; Ernesto Senior other convictions. Counsel; Division, Office gation Civil Litigation, De- Immigration Proceedings B. Removal D.C.; Justice, Washington, for partment of Respondent. Department In March Feroli, Im- Thomas Hutchins James Security alleged Ortega- Homeland Center, migrant Refugee Al- Appellate & “an alien present was removable as exandria, Virginia, Amici Curiae Thom- being United States without admit- Feroli, Hutchins, Immigrant James 212(a)(6)(A)(i), paroled.” § ted See INA Appellate & Refugee Center. 1182(a)(6)(A)(I). Ortega-Lopez § 8 U.S.C. filed an for cancellation of re- application PREGERSON, Before: HARRY 240(A)(b), moval under INA 8 U.S.C. OWENS, T. GARLOS and JOHN B. 1229b(b). Judges. Circuit February On the IJ held BEA Concurrence Ortega-Lopez ineligible cancella- OPINION removal because his conviction 240(A)(b)(l)(C). Ap- INA CIMT. See OWENS, Judge: plying Taylor v. United Agustín citi- Ortega-Lopez, Mexican S.Ct. zen, convic- contends his misdemeanor that the conviction the IJ concluded participating tion for “categorically involves moral be- violation of the Unlawful Animal Venture criminalizes conduct that is cause willful Prohibition, 2156(a)(1), U.S.C. depraved.” The IJ ex- base (“CIMT”). Immigra- plained: moral turpitude (2010) (Alito, J., fights purpose

Animal ... oth- 435 serve hunting Hackman, than entertainment. States v. spectacle, racing, Turning to cockfighting, which is the inten- purpose the entire BIA, earlier, like the emphasized on sen- tional infliction of harm practice that this had been outlawed in all *3 compelled fight, to beings tient that are 50 “sweeping prohibition” states and this spectacle often the death. The forc- society confirmed that our morally found it each other ing animals to cause extreme reprehensible. petition timely This fol- necessarily appeals pru- or death lowed. rient interests. II. Discussion Turning specifically cockfighting, the prac- that all 50 outlawed the noted states Whether a crime involves moral and that had found “animal society tice question of law that we fighting morally reprehensible.” ventures Latter-Singh Holder, review de novo. judge reasoned that because animal 1156, 2012). 1159 fighting cruelty in many constituted animal afford deference under Chevron v. Natural states, and concluded that courts had cruel Council, Inc., Resources 467 U.S. Defense inhere moral turpi- acts towards children 837, 2778, 104 S.Ct. 81 L.Ed.2d 694 tude, animal which fighting, also involved however, published to the BIA’s determi children, akin living beings defenseless nation that “specified conduct constitutes a morally necessarily turpitudinous. CIMT,” Mendoza v. Ortega-Lopez appealed. 1299, 2010), 1302 unless the “BIA Appeal C. to BIA did not support its conclusion with any statutory reasoning,” decision, In a March published 2018 the Rivera v. 816 1071 agreed with that the offense of 2015). exhibiting sponsoring or an animal in an fighting categorically animal venture Congress has declared cockfighting a applying CIMT. Also the ap- scourge prosecution, that warrants and we sought “compare the BIA proach, the quarrel have no with that.1 Yet that is not of conviction to the defini- statute rather, inquiry we must deter- here — Rohit v. turpitude.” mine whether the conviction issue is a 2012). 1088 The CIMT. In answering question, the BIA defined moral as “conduct government urges to hold that us cock- base, vile, depraved, which is depraved practice, is a vile and accepted to the rules of mo- story. which in It its view ends does rality per- and the owed between duties not. or to society general.” sons Matter of recognized We have that whether a (BIA

Ajami, 22 I. & Dec. question “nebulous CIMT is a 1999). The BIA that concluded that we required answer fighting “clearly reprehensible involves judicially categories basis established describing conduct” and cited several cases criminal conduct.” Nunez dog fighting as “cruel” and “inhumane.” 2010). See, Stevens, To inter- e.g., 1577, 1601-02, Taylor, pret employ 130 S.Ct. the entrails of we Islands, Rico, dogfighting, illegal Virgin every- which is Puerto and the U.S. Is- States, where in the United re- lands. See White v. Guam, legal mains Northern Mariana kid holding sion de novo and that categor- the modified categorical approach, approach, and other mechanisms ical law was not napping under California (and Supreme dictates then of- Court an CIMT because it “does not just couple Terms undermines ten special injury, intent to actual See, later). e.g., Almanza-Arenas (citation omitted)); Turi class of victims” 469, 483 Lynch, 815 F.3d jan v. (Owens, J., concurring) (explain- 2014) BIA decision (reviewing unpublished “[ajlmost Term, every the Su- felony imprisonment holding false a ‘new’ with Court issues decision preme not it does did as CIMT because forces fed- slightly different injure an not an intent to lawyers judges, litigants, proba- eral vic class of hit the reset button once tion officers to *4 tims); Linares-Gonzalez v. a determining whether again” 2016) (holding 517-18 CIMT). that identi determining BIA erred case re Fortunately, this ty theft under California law was CIMT another ascent of Mount quire painful where it “does not ‘intent ity.” Robles-Urrea v. involving play here. “[1] only Taylor. CIMTs those grave second involving acts of baseness fall into two category The fraud parties is potentially categories: agree [2] deprav those tim’ Navarro-Lopez v. not be that 50 states as a ” (citation omitted)). CIMT—more automatically qualifies cockfight outlawing cockfighting 2007) (en banc) (holding that protected is required. The answer class of vic See, e.g., can turpitude “[Njon-fraudulent a definition of moral that encom crimes moral over- always passed involve all criminal conduct would be turpitude almost an intent someone, harm the actual infliction of broad and the intent of Con upon or an harm action gress), grounds overruled other Nunez, class of victim.” affects Oca, Aguila-Montes de opinions, F.3d at In their bane). 2011) (en 655 F.3d 915 BIA how the statute never discussed RE- PETITION GRANTED AND cockfighting—involved of conviction— MANDED. govern victim.” “protected class of Nunez, briefing ment’s never addressed Judge, concurring: argument, when about it at oral asked I fully opinion. I concur Owens’ government counsel had answer. only to the un separately emphasize write not explicitly case law does While Taylor suitability of the framework apply language the BIA to particular crime is determining whether Nunez, we think a remand consider turpitude. involving moral See Ceron here, is crime appropriate 785-89 is, at issue harm chickens 2014) (en banc) (Bea, J., Na blush, first outside the normal realm of Gonzales, varro-Lopez Ashcroft, See CIMTs. 2007) J., (Bea, 1084-86 2004) (noting 806-07 (“There is no federal dissenting) permit to consid- proper remand moral with elements instance); question in first see also from, to, similar or different state Castrijon-Garcia v. reason (reviewing BIA deci-

1019-1035 turpitude. there is no state crime moral crime,

One to have a such burglary, Taylor categorical analysis.”).

to use the

Read the detailed case summary