Bakor v. Barr

• Decision Date: 07 May 2020
• Docket Number: No. 18-3011,18-3011
• Citation: 958 F.3d 732
• Parties: Tua Mene Lebie BAKOR, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

958 F.3d 732

Tua Mene Lebie BAKOR, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 18-3011

United States Court of Appeals, Eighth Circuit.

Submitted: October 16, 2019

Filed: May 7, 2020

Rehearing and Rehearing En Banc Denied July 28, 2020

Tua Mene Lebie Bakor, Willmar, MN, Pro. Se.

Benjamin Richard Casper Sanchez, Allison J. Mitchell, Fredrikson & Byron Professor of Law, University of Minnesota Law School, Kayla Hoel, University of Minnesota, James H. Binger Center for New Americans, Minneapolis, MN, Michael S. DePrince, Pepper & Hamilton, Washington, DC, Graham Ojala-Barbour, Ojala-Barbour Law Firm, Saint Paul, MN, for Petitioner.

Peter B. Berg, U.S. Immigration & Naturalization Service, Bloomington, MN, Brett Kinney, Carl H. McIntyre, Imran Raza Zaidi, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before COLLOTON, BEAM, and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

Under the Immigration and Nationality Act, the Attorney General may remove an alien "who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." 8 U.S.C. § 1227(a)(2)(A)(ii). In 2017, the Department of Homeland Security initiated removal proceedings under this provision against Tua Mene Lebie Bakor, an alien originally from Nigeria. The Board of Immigration Appeals determined that Bakor had been convicted of two crimes involving moral turpitude: Criminal Sexual Conduct in the Fifth Degree in Minnesota, and knowing failure to comply with Minnesota’s sex offender registration statute. Bakor argues that neither of these convictions qualifies as a crime involving moral turpitude. We deny the petition for review.

I.

Bakor was admitted to the United States as a refugee in September 1999. Approximately three years later, he became a lawful permanent resident. In 2001, he was convicted of Criminal Sexual Conduct in the Fifth Degree. Minn. Stat. § 609.3451, subdiv. 1. As a result of this conviction, Bakor was obliged to comply with Minnesota’s sex offender registration law. In 2015, Bakor failed to comply, and he pleaded guilty to a knowing failure to adhere to registration requirements. Minn. Stat. § 243.166, subdiv. 5(a).

In 2017, the Department initiated removal proceedings against Bakor, alleging that he had been convicted of two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). The immigration court sustained the charge and ordered the Department to remove Bakor to Nigeria.

Bakor appealed the removal order to the Board, arguing through counsel that neither of his previous convictions was for a crime involving moral turpitude. The Board, in a decision by a single member, rejected the argument and dismissed the appeal.

II.

Congress did not define the ambiguous phrase "crime involving moral turpitude." In reviewing a decision in which the Board relies on a published opinion that interprets the statute, we generally accord deference to the agency’s interpretation and uphold its construction as long as it is reasonable. Chanmouny v. Ashcroft , 376 F.3d 810, 811 (8th Cir. 2004) ; see I.N.S. v. Aguirre-Aguirre , 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ; Marmolejo-Campos v. Holder , 558 F.3d 903, 908-12 (9th Cir. 2009) (en banc). Where the Board’s decision comes entirely in an unpublished ruling by a single member, we defer to the ruling insofar as it is persuasive under the rubric of Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). We have not resolved whether a single-member decision, standing alone, is afforded the same level of deference as a published decision under Aguirre-Aguirre and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Estrada-Rodriguez v. Lynch , 825 F.3d 397, 404 (8th Cir. 2016).

In developing a definition of a crime involving moral turpitude, or "CIMT," the Board has stated that "[t]o involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state." Matter of Silva-Trevino , 26 I. & N. Dec. 826, 834 (BIA 2016) ; see also Gomez-Gutierrez v. Lynch , 811 F.3d 1053, 1058 (8th Cir. 2016). We have accepted the Board’s characterization of "reprehensible conduct" as "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." Chanmouny , 376 F.3d at 812 (quoting In re Ajami , 22 I. & N. Dec. 949, 950 (BIA 1999) ); see also Gomez-Gutierrez , 811 F.3d at 1058. We also have upheld the Board’s conclusion that while a culpable mental state often involves intent, purpose, or knowledge, a mens rea of recklessness sometimes is sufficient. Franklin v. I.N.S. , 72 F.3d 571, 573 (8th Cir. 1995) ; see also Matter of Jimenez-Cedillo , 27 I. & N. Dec. 1, 3 (BIA 2017) (stating that the culpable mental state for a CIMT can include "specific intent, knowledge, willfulness, or recklessness").

When reviewing a Board decision that a conviction qualifies as a CIMT, we apply the so-called categorical approach. Reyna v. Barr , 935 F.3d 630, 632 (8th Cir. 2019). Under that approach, we consider whether the elements of an offense necessarily fit within the Board’s generic definitions. Id. If the statute of conviction has a "realistic probability" of covering conduct that falls outside the generic definition, then the conviction does not qualify categorically as grounds for removal under 8 U.S.C. § 1227(a)(2)(A)(ii). Villatoro v. Holder , 760 F.3d 872, 877-79 (8th Cir. 2014).

A.

Bakor argues first that his conviction for Criminal Sexual Conduct in the Fifth Degree does not qualify as a conviction for a crime involving moral turpitude.

The statute of conviction criminalized nonconsensual sexual contact "performed with sexual or aggressive intent." Minn. Stat. § 609.3451, subdiv. 1 (2001). The statute defined "sexual contact" as "the intentional touching by the actor of the complainant’s intimate parts" or "the touching of the clothing covering the immediate area of the intimate parts," but not including the touching of clothing covering the immediate area of the buttocks. Id .; Minn. Stat. § 609.341, subdivs. 11(a)(i), (iv) (2001).

This Minnesota offense falls within the generic definition of a CIMT, because the conduct it covers is reprehensible. The Board long has considered nonconsensual sexual contact to be the type of conduct that qualifies as turpitudinous, see, e.g. , Matter of Z– , 7 I. & N. Dec. 253, 255 (BIA 1956), and we agree with the courts that have accepted this interpretation of the statute. See Pinzon v. Gonzales , 175 F. App'x 911, 914 (9th Cir. 2006) ; Maghsoudi v. I.N.S. , 181 F.3d 8, 15 (1st Cir. 1999) ; United States v. Kiang , 175 F. Supp. 2d 942, 952 (E.D. Mich. 2001), aff’d , 56 F. App'x 696, 698 (6th Cir. 2003).

Bakor offers two counterarguments. First, he asserts that the Minnesota offense does not meet the Board’s own standard for sexual offenses set forth in Matter of Cortes Medina , 26 I. & N. Dec. 79, 82 (BIA 2013). He contends that Cortes Medina requires "lewd or lascivious intent" to classify a sex offense as a CIMT, and that because Bakor’s offense may be committed with "aggressive intent," it falls outside the Board’s definition. Cortes Medina , however, concerned a conviction for indecent exposure to children, and the Board required a showing of lewd or lascivious intent in order to exclude cases that arose merely from "a negligent disregard of the children’s presence occasioned by physical necessity." Id . at 82-83. Where, as here, an offense involves nonconsensual sexual contact and cannot be committed through mere negligence, the Board properly concluded that an element of lewd or lascivious intent is not necessary for the crime to involve moral turpitude.

Second, Bakor argues that his Minnesota offense is akin to assault. Because assault without injury is not necessarily turpitudinous, see Alonzo v. Lynch , 821 F.3d 951, 958-59 (8th Cir. 2016), he asserts that fifth-degree criminal sexual conduct is not either. Bakor emphasizes that the Minnesota statute imposed no requirement that the sexual contact result in bodily injury. See State v. Ahmed , 782 N.W.2d 253, 261-62 (Minn. Ct. App. 2010).

The analogy to assault, however, is inapt. We have observed that simple assault is a general intent crime, not necessarily accompanied by a vicious motive, corrupt mind, or evil intent. Alonzo , 821 F.3d at 958. And we have recognized that "many simple assault statutes prohibit a wide range of conduct or harm, including de minimis conduct or harm, such as offensive or provocative physical conduct or insults." Id . (internal quotation omitted). So determining whether an assault offense is turpitudinous requires an assessment of both the state of mind and the level of harm required to complete the particular offense. Bakor’s offense, by contrast, categorically requires "the intentional touching by the actor of the complainant’s intimate parts" with "sexual or aggressive intent." Minn. Stat. §§ 609.341, subdiv. 11(a)(i) ; 609.3451, subdiv. 1. Unlike some simple assault offenses, the Minnesota sexual conduct statute is not a general intent crime, and it does not sweep in de minimis conduct. The Board correctly concluded that nonconsensual sexual conduct under this statute involves reprehensible conduct committed with a culpable mental state, even if it does not cause bodily injury.

B.

Bakor argues alternatively that his failure to comply with Minnesota’s sex offender registration statute was not a crime involving moral turpitude. The statute imposes registration requirements on persons like Bakor who have been convicted of criminal sexual conduct. Minn. Stat. § 243.166, subdiv. 1b(a)(1)(iii) (2015). The law further states that a "person required to...