Ortiz v. Lynch
| Decision Date | 06 August 2015 |
| Docket Number | No. 14–2428.,14–2428. |
| Parties | Jose Socorro ORTIZ, Petitioner v. Loretta E. LYNCH, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
796 F.3d 932
Jose Socorro ORTIZ, Petitioner
v.
Loretta E. LYNCH, United States Attorney General, Respondent.
No. 14–2428.
United States Court of Appeals, Eighth Circuit.
Submitted: May 14, 2015.
Filed: Aug. 6, 2015.
Anne Elizabeth Parsons, argued, Minneapolis, MN, (David Wilson, Minneapolis, MN, on the brief), for Petitioner.
Nicole Thomas–Dorris, argued, Washington, DC, (Joyce R. Branda, Acting Assistant Attorney General, Mary Jane Candaux, Assistant Director, Washington, D.C., on the brief), for Respondent.
Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
Opinion
BRIGHT, Circuit Judge.
Petitioner José Socorro Ortiz (Ortiz) seeks review of a decision of the Board of Immigration Appeals (BIA) affirming an immigration judge's (IJ) finding that Ortiz was removable and ordering Ortiz's removal from the United States. The IJ concluded Ortiz was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because Ortiz's prior conviction for Obstructing Legal Process, Arrest, or Firefighting, Minn.Stat. § 609.50, subd. 2(2) (hereinafter, “obstruction of legal process”) was an “aggravated felony.” Ortiz challenges the IJ's findings, arguing a conviction for obstruction of legal process is not an “aggravated felony.” For the reasons set forth below, we grant the petition for review, vacate the order for removal, and remand to the BIA for proceedings consistent with this opinion.
I.
Ortiz, a native of Mexico, became a lawfully-admitted permanent resident of the United States in 2002. In 2006, Ortiz pled guilty to obstruction of legal process—a crime committed when he was eighteen years old. Ortiz was sentenced to 1 year in a workhouse—with a 2–year stay on 320 days of the sentence—and a $50.00 fine.
More than seven years later, the Department of Homeland Security issued a Notice to Appear, charging Ortiz as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for committing an “aggravated felony.” Later, the Department of Justice filed an additional charge alleging Ortiz's conviction for obstruction of legal process also subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) for committing a crime involving “moral turpitude.”
Ortiz moved to terminate the removal proceedings arguing, as relevant here, that a conviction for obstruction of legal process is not an “aggravated felony.” The IJ found Ortiz's conviction was an “aggravated felony” under section 1227(a)(2)(A)(iii) because it was a “crime of violence.”
Ortiz timely appealed the IJ's decision to the BIA. The BIA upheld the IJ's determination that Ortiz's conviction for obstruction of legal process was categorically a “crime of violence” and, thus, an “aggravated felony” subjecting him to removal under section 1227(a)(2)(A)(iii).1
Ortiz filed a timely petition for review.
II.
“We lack jurisdiction to review any final order of removability against an alien convicted of ... an aggravated felony.” Roberts v. Holder, 745 F.3d 928, 930 (8th Cir.2014) (per curiam). But “[w]e retain jurisdiction ... to review constitutional claims or questions of law, such as whether a crime is an aggravated felony.”
Id. (quoting Olmsted v. Holder, 588 F.3d 556, 558 (8th Cir.2009) ) (internal quotation marks omitted). “We review questions of law de novo[,] but accord substantial deference to the BIA's interpretation of immigration statutes and regulations.” Puc–Ruiz v. Holder, 629 F.3d 771, 777 (8th Cir.2010).
III.
Ortiz is removable if his obstruction of legal process conviction is an “aggravated felony”—specifically a “crime of violence” for which the term of imprisonment was at least one year. See Roberts, 745 F.3d at 930 (quoting 8 U.S.C. § 1101(a)(43)(F) ). To determine whether Ortiz's obstruction of legal process conviction is a “crime of violence,” we begin by applying the categorical approach. See, e.g. , Moncrieffe v. Holder, –––U.S. ––––, ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). Under the categorical approach, “we look not to the facts of the particular prior case,” but instead to whether the obstruction of legal process statute “categorically fits within the ‘generic’ federal definition of” a “crime of violence.” Id. (citation omitted) (internal quotation marks omitted). “[W]e must presume [Ortiz's] conviction rested upon [nothing] more than the least of th[e] acts criminalized” by the obstruction of legal process statute. Id. (citation omitted) (internal quotation marks omitted).
The generic federal definition of “crime of violence” is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16 (emphasis added).
We have held the definition of “crime of violence” in section 16 is “virtually identical” to the definition of a “crime of violence” in U.S. Sentencing Guidelines Manual § 4B1.2(a) and “violent felony” in the Armed Career Criminals Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).2 Roberts, 745 F.3d at 930. In Johnson v. United States, the Supreme Court interpreted the phrase “physical force” under the ACCA, determining the phrase is synonymous with “violent force—that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; see also United States v. Williams, 690 F.3d 1056, 1067–68 (8th Cir.2012) (applying the Johnson definition to the phrase “physical force” in the definition of “crime of violence” under U.S. Sentencing Guidelines Manual § 4B1.2(a) ).
Ortiz argues his conviction is not a “crime of violence” because the minimum amount of force required to sustain a conviction under the obstruction of legal process statute is less than the “force capable
of causing physical pain or injury to another person” as required to be a “crime of violence” under Johnson. We agree.
Ortiz stands convicted of obstruction of legal process under Minn.Stat. § 609.50. The statute reads, in relevant part:
Subdivision 1. Crime. Whoever intentionally does any of the following may be sentenced as provided in subdivision 2 ... obstructs,...
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