Jose Ortiz v. William P. Barr, 962 F.3d 1045

Background

Jose Ortiz, a lawful permanent resident from Mexico, pleaded guilty in 2006 to obstruction of legal process under Minn. Stat. § 609.50 and was sentenced under the gross-misdemeanor penalty in subdivision 2(2).
DHS instituted removal proceedings charging Ortiz as removable both for an aggravated felony (crime of violence) and for a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1227(a)(2)(A).
This Court previously held that § 609.50 is not categorically a “crime of violence” (and thus not an aggravated felony) because the statute can be violated with force less than that required under Johnson.
On remand the IJ and BIA concluded the statute nevertheless categorically constituted a CIMT, reasoning the statute requires intentional conduct and that the statute’s “force or violence” element is an aggravating factor showing depravity.
The Eighth Circuit reviewed whether the statute, on its face, necessarily fits the BIA’s generic definition of a crime involving moral turpitude, applying the categorical approach and the presumption that a conviction rests on the least culpable conduct criminalized.
The court held § 609.50, subd. 2(2) is not categorically a CIMT because (1) the offense is a general-intent crime and the penalty provision contains no mens rea, and (2) the minimum “force or violence” that triggers the gross-misdemeanor penalty can be de minimis (e.g., resisting handcuffing by folding up into a fetal position), so the statute covers conduct that is not inherently base, vile, or depraved.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Minn. Stat. § 609.50, subd. 2(2) categorically constitutes a crime involving moral turpitude (CIMT)	Ortiz: No; statute permits conviction for general-intent, minimal-force conduct that is not inherently base or depraved.	DHS/BIA: Yes; statute requires intentional interference and the “force or violence” element makes it sufficiently culpable.	The statute is not categorically a CIMT: it allows general-intent liability and can be applied to de minimis force that lacks the moral depravity required for a CIMT.
Whether the statute’s penalty provision supplies a requisite mens rea or aggravating harm to render the offense a CIMT	Ortiz: The subdivision 2(2) penalty imposes no separate mens rea and its “force or violence” threshold can be met by minimal resistance.	DHS/BIA: The presence of force/violence elevates culpability and suffices for moral turpitude.	The penalty provision lacks an independent scienter; Minnesota case law shows the required force can be minimal, so there is a realistic probability the statute reaches non‑CIMT conduct.

Key Cases Cited

Johnson v. United States, 559 U.S. 133 (2010) (defining "crime of violence" force threshold)
Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (categorical approach and presumption that conviction rests on least culpable conduct)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (realistic probability test for categorical approach)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability standard explained)
Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (8th Cir. 2016) (standard of review and elements for CIMT analysis)
Ortiz v. Lynch, 796 F.3d 932 (8th Cir. 2015) (prior Eighth Circuit holding that § 609.50 is not categorically a crime of violence)
Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012) (rejecting view that making officials’ tasks harder is per se morally depraved)
Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004) (BIA definition of moral turpitude quoted)
X-Citement Video, Inc. v. United States, 513 U.S. 64 (1994) (presumption of mens rea in statutes and inapplicability to penalty provisions)
Reyna v. Barr, 935 F.3d 630 (8th Cir. 2019) (restating categorical approach for CIMT analysis)