                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1285
                         ___________________________

                                Jose Socorro Ortiz

                             lllllllllllllllllllllPetitioner

                                           v.

              William P. Barr, Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                     ____________

                       Petition for Review of an Order of the
                           Board of Immigration Appeals
                                    ____________

                             Submitted: May 13, 2020
                               Filed: June 23, 2020
                                  ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

SHEPHERD, Circuit Judge.

      Jose Ortiz petitions for review of an order of the Board of Immigration Appeals
(BIA) affirming an immigration judge’s (IJ) decision finding him removable under
§ 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude.
Having jurisdiction under 8 U.S.C. § 1252, we grant the petition for review and
vacate the order of removal.

                                          I.

       Ortiz, a native and citizen of Mexico, became a lawfully-admitted permanent
resident of the United States in 2002. In 2006, Ortiz pled guilty to obstruction of
legal process, arrest, or firefighting (hereinafter, obstruction of legal process), in
violation of Minn. Stat. Ann. § 609.50, subdiv. 2(2). He was sentenced to one year
in a prison, with a two-year stay on 320 days of the sentence, and a fine of $50.

       On November 27, 2013, the Department of Homeland Security (DHS) initiated
removal proceedings against Ortiz, charging him as removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been “convicted of an aggravated felony” based on his
prior conviction for obstruction of legal process. DHS later filed an additional charge
against Ortiz, alleging that his prior conviction for obstruction of legal process also
subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) for having been
“convicted of a crime involving moral turpitude.”

      Ortiz moved to terminate removal proceedings, arguing that a conviction under
Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not an aggravated felony. The IJ denied
the motion, finding that Ortiz’s prior conviction was categorically a “crime of
violence” and, thus, an aggravated felony. See 8 U.S.C. § 1101(a)(43)(F) (“The term
‘aggravated felony’ means . . . a crime of violence[.]”). Accordingly, the IJ ordered
Ortiz’s removal from the United States to Mexico. The BIA affirmed the IJ’s
decision.

       Ortiz filed a petition for review. This Court determined that a conviction under
Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime of violence—and,
thus, not an aggravated felony—because the minimum amount of force required to

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sustain a conviction under that statute is less than the level of force required to
constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140
(2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we
granted Ortiz’s petition for review, vacated the order of removal, and remanded to the
BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal
under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude. Id. at 938.

       Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to
decide the issue. Ortiz again moved to terminate removal proceedings, arguing that
a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv.
2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that
Ortiz’s prior conviction was categorically a crime involving moral turpitude because
(1) the statute requires intentional conduct, and (2) using or threatening force or
violence to obstruct legal process entails conduct that is inherently base, vile, or
depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained
the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s
removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s
decision, adding that the minimum conduct punishable by the statute falls within the
definition of “moral turpitude” because it involves some aggravating level of force
or violence in the context of interference with important and legitimate government
functions. Ortiz again filed a timely petition for review.

                                          II.

      In his petition for review, Ortiz argues that the BIA erred in concluding that his
conviction for obstruction of legal process in violation of Minn. Stat. Ann. § 609.50,
subdiv. 2(2) categorically constitutes a crime involving moral turpitude. Whether
Ortiz’s prior conviction “qualifies as a crime involving moral turpitude is a legal
question, subject to de novo review. In analyzing that question, we afford substantial
deference to the [BIA’s] interpretation of ambiguous statutory language in the INA

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and will uphold its construction if it is reasonable.” Gomez-Gutierrez v. Lynch, 811
F.3d 1053, 1058 (8th Cir. 2016) (citation omitted).

                                           A.

       “Any alien who . . . is convicted of a crime involving moral turpitude
committed within five years . . . after the date of admission, and . . . for which a
sentence of one year or longer may be imposed, is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(i). Congress has never defined the phrase “crime involving moral
turpitude.” In the absence of a statutory definition, the BIA has defined the phrase
as follows:

      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. Moral turpitude
      has been defined as an act which is per se morally reprehensible and
      intrinsically wrong or malum in se, so it is the nature of the act itself and
      not the statutory prohibition of it which renders a crime one of moral
      turpitude.

Chanmouny v. Ashcroft, 376 F.3d 810, 811-12 (8th Cir. 2004) (quoting Matter of
Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per curiam)) (internal quotation marks
omitted). Furthermore, to constitute a crime involving moral turpitude, the offense
must require “a culpable mental state and reprehensible conduct.” Gomez-Gutierrez,
811 F.3d at 1058 (quoting Matter of Medina, 26 I. & N. Dec. 79, 82 (BIA 2013))
(internal quotation marks omitted).

      This Court employs the “categorical approach” to determine whether a state
offense qualifies as a crime involving moral turpitude. Id. “Under that approach, we
consider whether the elements of [the state] offense necessarily fit within the [BIA’s]
generic definition[]” of a crime involving moral turpitude. Reyna v. Barr, 935 F.3d


                                          -4-
630, 632 (8th Cir. 2019). In conducting this analysis, we “must ‘presume that
[Ortiz’s] conviction rested upon nothing more than the least of the acts criminalized’
under the state statute.” Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quoting
Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)). If there is “a realistic
probability . . . that the State would apply its statute to conduct that falls outside the
generic definition of a crime” involving moral turpitude, then the conviction does not
categorically constitute a crime involving moral turpitude. Moncrieffe, 569 U.S. at
191 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)) (internal
quotation marks omitted).

                                           B.

       In determining whether an obstruction conviction constitutes a crime involving
moral turpitude, the BIA applies the same principles that it applies when analyzing
an assault conviction. See Matter of Garcia-Lopez, 2007 WL 4699842, at *1-2 (BIA
Nov. 2, 2007) (noting that “[t]he crime of interfering with a law enforcement officer
is analogous to assault” and relying on the BIA’s assault framework to determine
whether a conviction for intentionally resisting arrest by using force constitutes a
crime involving moral turpitude); Matter of Logan, 17 I. & N. Dec. 367, 368-69 (BIA
1980) (relying on the BIA’s assault framework to determine whether a conviction for
interference with a law enforcement officer is a crime involving moral turpitude).
Thus, before considering whether Ortiz’s statute of conviction categorically fits the
generic definition of a crime involving moral turpitude, we first briefly discuss the
BIA’s established principles for determining whether a particular assault conviction
constitutes a crime involving moral turpitude.

      With regard to statutes prohibiting assault, the BIA has observed that “[a]ssault
may or may not involve moral turpitude,” and that the inquiry “involves an
assessment of both the state of mind and the level of harm required to complete the
offense.” Matter of Solon, 24 I. & N. Dec. 239, 241-42 (BIA 2007) (“[A]s the level

                                           -5-
of conscious behavior decreases, i.e., from intentional to reckless conduct, more
serious resulting harm is required in order to find that the crime involves moral
turpitude.”). “Offenses characterized as ‘simple assaults’ are generally not considered
to be crimes involving moral turpitude . . . because they require general intent only
and may be committed without the evil intent, depraved or vicious motive, or corrupt
mind associated with moral turpitude.” Id. at 241 (citation omitted). However, the
BIA has recognized that assault offenses “may appropriately be classified as crimes
of moral turpitude if they necessarily involve[] aggravating factors that significantly
increase[] their culpability,” such as the use of a deadly weapon, the intentional
infliction of serious bodily injury, or the intentional or knowing infliction of tangible
bodily harm upon a member of a protected class. Matter of Sanudo, 23 I. & N. Dec.
968, 971-72 (BIA 2006).

                                           C.

      Ortiz stands convicted of obstruction of legal process under Minn. Stat. Ann.
§ 609.50. Subdivision 1 of that statute sets forth alternative means by which an
individual may commit the offense. It provides, in relevant part:

      Subdivision 1. Crime. Whoever intentionally does any of the following
      may be sentenced as provided in subdivision 2:

             (1) obstructs, hinders, or prevents the lawful execution of any
      legal process, civil or criminal, or apprehension of another on a charge
      or conviction of a criminal offense; [or]

             (2) obstructs, resists, or interferes with a peace officer while the
      officer is engaged in the performance of official duties[.]




                                          -6-
Minn. Stat. Ann. § 609.50, subdiv. 1(1)-(2). The record does not indicate which
clause of subdivision 1 served as the basis for Ortiz’s conviction.1 Subdivision 2 lists
the penalties for committing the offense of obstruction of legal process, as defined in
subdivision 1. Ortiz was sentenced under the statute’s gross-misdemeanor penalty
provision, subdivision 2(2), which provides:

      Subdivision 2. Penalty. A person convicted of violating subdivision 1
      may be sentenced as follows:
            ...
            (2) if the act was accompanied by force or violence or the threat
      thereof and is not otherwise covered by clause (1), to imprisonment for
      not more than one year or to payment of a fine of not more than $3,000,
      or both[.]

Minn. Stat. Ann. § 609.50, subdiv. 2(2).

       We begin by addressing the statute’s state-of-mind requirement. While
subdivision 1 requires that a defendant “intentionally do[]” any of the acts described
therein, the Minnesota Court of Appeals has explained that Minn. Stat. Ann. § 609.50
is a general-intent crime. State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2
(Minn. Ct. App. May 26, 2015) (citing State v. Fleck, 810 N.W.2d 303, 308 (Minn.
2012)); State v. Dodds, No. A08-0261, 2009 WL 1046356, at *5 (Minn. Ct. App.
Apr. 21, 2009) (“Obstructing legal process is a general-intent crime because the only
intent required is the intent to do the very act which is prohibited—acting in a manner
that obstructs, resists, or interferes with a peace officer while the officer is engaged
in the performance of official duties.”). As discussed, BIA case law establishes that


      1
        The Minnesota Supreme Court has recognized that the alternative means set
forth in Minn. Stat. Ann. § 609.50, subdiv. 1 “are not inherently different types of
conduct.” State v. Ihle, 640 N.W.2d 910, 919 (Minn. 2002). Therefore, a jury is not
required to unanimously decide which of these alternative means a defendant
employed in order to find that defendant guilty of obstructing legal process. Id.

                                          -7-
an offense that requires general intent only is not considered to be a crime involving
moral turpitude.2 Solon, 24 I. & N. Dec. at 241.

       Further, the plain language of the gross-misdemeanor penalty provision, Minn.
Stat. Ann. § 609.50, subdiv. 2(2), imposes no mens rea requirement. See State v.
Burr, No. A11-2202, 2012 WL 4774517, at *3 (Minn. Ct. App. Oct. 9, 2012) (finding
that the plain language of Minn. Stat. Ann. § 609.50, subdiv. 2(2) does not include
an intent element). Rather, to invoke the enhanced penalty under subdivision 2(2),
the government is required to prove only that the act constituting the offense, as
defined in subdivision 1, “was accompanied by force or violence or the threat
thereof[.]” Minn. Stat. Ann. § 609.50, subdiv. 2(2); cf. Minn. Stat. Ann. § 609.50,
subdiv. 2(1)(i) (providing that the offense of obstruction of legal process may be
sentenced as a felony if the government proves that “the person knew or had reason
to know that the act created a risk of death, substantial bodily harm, or serious
property damage” (emphasis added)). Further, because subdivision 2(2) is a penalty
provision, rather than a “statutory element[] that criminalize[s] otherwise innocent
conduct,” the presumption in favor of a scienter requirement does not apply. United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).

       Thus, there is a realistic probability that Minnesota would apply its obstruction
of legal process statute to cases that lacked the requisite degree of scienter necessary
to constitute a crime involving moral turpitude.


      2
        In both Serrano, 2015 WL 2456982, at *2 n.2, and Dodds, 2009 WL 1046356,
at *5, the Minnesota Court of Appeals declined to follow its earlier, unpublished
decision in State v. Bjork, in which it had stated in dicta that the offense of
obstruction of legal process is a specific-intent crime. No. A06-809, 2007 WL
2363834, at *3 (Minn. Ct. App. Aug. 21, 2007). But even assuming, arguendo, that
the offense is a specific-intent crime, the minimum level of harm required to complete
the offense is also insufficient to constitute a categorical crime involving moral
turpitude, as discussed in more detail below.

                                          -8-
       Additionally, the level of harm required to complete the offense is also
insufficient to constitute a crime involving moral turpitude. First, the conduct
described in subdivision 1—obstruction of legal process—is not inherently base, vile,
or depraved. See Bobadilla v. Holder, 679 F.3d 1052, 1058 (8th Cir. 2012) (“We
reject the notion, all too prevalent in government circles, that every person who
intentionally makes a government official’s task more difficult is guilty of ‘inherently
base, vile or depraved’ conduct.”). Second, the minimum level of “force or violence”
required under subdivision 2(2) is insufficient to constitute an aggravating factor.
See Sanudo, 23 I. & N. Dec. at 971-72 (noting that sufficient aggravating factors in
the context of assault include use of a deadly weapon, “intentional infliction of
serious bodily injury,” and intentional or knowing infliction of tangible bodily harm
upon a member of a protected class (emphasis added)). Indeed, the Minnesota Court
of Appeals has upheld a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2)
where the “force or violence” accompanying the obstruction was that the defendant
merely assumed the fetal position and placed his arms under his body, and then used
that position to physically resist being handcuffed by arresting officers. State v.
Conlin, No. A14-0069, 2014 WL 7011171, at *4 (Minn. Ct. App. Dec. 15, 2014).
Accordingly, Conlin indicates that the requisite “force or violence” under subdivision
2(2) need not result in any harm or injury whatsoever. The BIA’s case law makes
clear that, in the context of assault, there must be some “meaningful level of
harm”—i.e., more than “de minimus conduct or harm, such as offensive or
provocative physical contact or insults”—for an offense to constitute a crime
involving moral turpitude. See Solon, 24 I. & N. Dec. at 241. Thus, the minimum
conduct necessary to sustain a conviction under Minn. Stat. Ann. § 609.50, subdiv.
2(2) does not necessarily involve moral turpitude.

       Accordingly, we conclude that the BIA erred in finding that a conviction under
Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral
turpitude.



                                          -9-
                                       III.

      For the foregoing reasons, we hold a conviction under Minn. Stat. Ann.
§ 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under
8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and
vacate the order of removal.
                       ______________________________




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