Tag Archives: 8th Circuit

Obstruction is not a crime of moral turpitude (at least in Minnesota)

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The Eighth Circuit held in Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), that obstruction of legal process under Minnesota law is not a crime of moral turpitude sufficient to render an alien removable.

Jose Ortiz became a lawful permanent resident of the United States in 2002. Four years later, in 2006, he pleaded guilty to obstruction of legal process in violation of Minn. Stat. § 609.50, subdiv. 2(2) and was sentenced to one year in prison, with a two-year stay on 320 days of the sentence. Seven years after that, in 2013, DHS initiated removal proceedings against him, alleging that he was removable for (a) having been convicted of an aggravated felony and (b) having been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii).

The first round of appeals involved whether obstruction of legal process is an “aggravated felony.” The IJ said yes, and the BIA affirmed. The Eighth Circuit disagreed, holding that “the minimum amount of force required to sustain a conviction [for obstruction of legal process] is less than the level of force required to constitute a crime of violence.” See Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). The Eighth Circuit remanded for determination of whether obstruction of legal process is a crime involving moral turpitude, which resulted in this opinion.

To determine whether a particular crime is a “crime of moral turpitude” under the INA, courts apply the categorical approach. Importantly, the categorical approach is not a historical question; it does not ask any questions about the facts or allegations underlying the actual conviction. Instead, the categorical approach asks whether the elements of the offense “necessarily fit within” the BIA’s generic definition of a crime of moral turpitude. “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.” 962 F.3d at 1049 (quoting Moncrieffe, 569 U.S. at 191, and others). So you take the generic elements of the crime (not what may or may not have happened or been proved) and compare them to the definition of a crime of moral turpitude. If all the elements fit within the box of the definition, you have a crime of moral turpitude.

The Eighth Circuit discusses the offense of obstruction of legal process first, but I’m going to start with the definition of a crime of moral turpitude. Because the INA itself does not define “crime of moral turpitude,” courts give substantial deference to the BIA’s interpretation. The BIA has developed a two-prong definition. First, the prohibited conduct must be “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.” 962 F.3d at 1048. Second, “the offense must require ‘a culpable mental state’.” 962 F.3d at 1048 (quoting Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016) and others). In the context of Minnesota criminal law, “culpable mental state” means specific intent (i.e., something like evil intent, depraved or vicious motive, or corrupt mind), not just general intent. A general intent offense “is not considered to be a crime involving moral turpitude.” 962 F.3d at 1050 (citing Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007)).

Turning now to the offense of which Mr. Ortiz was convicted: obstruction of legal process is a general intent offense in Minnesota. 962 F.3d at 1050 (citing State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2 (Minn. Ct. App. May 26, 2015)).

Comparing the elements, then: crimes of moral turpitude require specific intent; obstruction of legal process does not. Therefore, obstruction of legal process is not a crime of moral turpitude and conviction for it will not render an alien removable. Because the BIA reached the opposite conclusion, the Eighth Circuit granted Ortiz’s petition for review and vacated the removal order.

Gambling with your Credit

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When I was a kid, we would occasionally have disputes about how to spell things. Settling the matter took about four stages: first, we would both insist that we were right; second, we would escalate our insistence, through raised fists, threatening eyebrows, and oaths taken on our mothers’ lives; third, one of us would dare the other to check the dictionary; fourth, the loser would declare the winner a nerd.

The French, at the end of their kingdom and the beginning of their empire, had a similar idea, only it would spread to all disputes ever. They had this idea that The Law should be simple enough to fit into a single book that everybody could have on their bookshelf. The idea was that two Frenchmen could have any dispute at all and resolve it by going through the four phases I mentioned: (1) I’m right / no, I’m right; (2) I swear I’m right / yeah, well I would bet my last bottle of wine that I’m right; (3) oh yeah? Why don’t you check The Code?; (4) you’re such a nerd.

Only: the law deals with life, and life is more complicated than spelling. In the first place, Napoleon’s “book” has spread to over 3,000 pages. In the second place, the hardest part of practicing law is almost never finding a piece of law to support your position. Rather, it’s deciding which arguments of several would be best and most likely to help you win.

Take this week’s case, In re Nicolaus, out of the 8th Circuit. Anthony Nicolaus ran a business with his brother. They ran into trouble with the IRS, apparently failing to pay withholding taxes. The IRS began collection efforts, so Nicolaus filed bankruptcy under Chapter 7.

Let’s pause for just a second. Chapter 7 is frequently touted as an “easy” way to get rid of debt without paying it. But there are some debts that don’t get discharged in Chapter 7. For example, child support is never discharged, nor is any debt for death or personal injury resulting from a D.W.I. 11 U.S.C. § 523(a)(5), (9). Student loans are almost never discharged. 11 U.S.C. § 523(a)(8). And debts for taxes are very difficult to discharge. 11 U.S.C. § 523(a)(1)(A) (referring to 11 U.S.C. § 507(a)(8) (referring to any tax “to be collected or withheld and for which the debtor is liable in whatever capacity,” including withholding taxes)). So if Mr. Nicolaus wanted to get out of his debt for not paying withholding taxes, Chapter 7 may not have been the way to go.

Back to the case. He files for bankruptcy. The IRS files a proof of claim. He files an objection. The IRS never responds. The bankruptcy court sustains the objection and disallows the claim. He does not have to pay the IRS.

A year later, the IRS files a motion to vacate the order disallowing the claim. According to the IRS, Mr. Nicolaus had to serve the objection not just on the IRS, but also on the attorney general and the local U.S. attorney. Since he had only served the IRS, the order disallowing the claim was invalid for lack of personal jurisdiction. The bankruptcy court agreed, as did the district court on appeal. The Eighth Circuit, however, disagreed. At the time Mr. Nicolaus filed his objection, the rules only required service on the IRS. The requirement of service on the attorney general and the local U.S. attorney were added later. Therefore, the IRS was properly served, and the bankruptcy court had jurisdiction to sustain the objection and disallow the claim. Mr. Nicolaus does not have to pay the IRS.

But that’s largely because the IRS wasn’t paying attention. If Mr. Nicolaus filed for bankruptcy in order to get out of his debt to the IRS, he was taking a major gamble. If the IRS had been paying attention, he could have ruined his credit for nothing.