In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1797
JUAN CARLOS GARCIA-MARTINEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A206-274-310
____________________
ARGUED OCTOBER 26, 2018 — DECIDED APRIL 16, 2019
____________________
Before WOOD, Chief Judge, and SYKES and SCUDDER, Circuit
Judges.
WOOD, Chief Judge. The task of identifying a “crime involv-
ing moral turpitude” has vexed courts and agencies for dec-
ades, if not centuries. “Moral turpitude” tends to be defined
very broadly. So, for example, one reads in Black’s Law Dic-
tionary (10th ed. 2014), that it is “[c]onduct that is contrary to
justice, honesty, or morality; esp., an act that demonstrates de-
pravity.” Webster’s Third New International Dictionary
2 No. 18-1797
defines it as “1: an act or behavior that gravely violates the
moral sentiment or accepted moral standards of the commu-
nity; esp.: sexual immorality … ; 2: the morally culpable qual-
ity held to be present in some criminal offenses as distin-
guished from others … .” The Board of Immigration Appeals
offers this: “The term ‘moral turpitude’ generally refers to
conduct that is ‘inherently base, vile, or depraved, and con-
trary to the accepted rules of morality and the duties owed
between persons or to society in general.” Matter of Silva-Tre-
vino, 26 I. & N. Dec. 826, 833 (BIA 2016) (Silva-Trevino III). Each
of those definitions leaves a lot of work to be done when par-
ticular crimes or specific acts must be characterized.
Nonetheless, there is a rough consensus that the phrase is
more than an epithet. The Supreme Court has held that crimes
involving fraud, for example, almost always involve moral
turpitude. Jordan v. DeGeorge, 341 U.S. 223, 232 (1951). By con-
trast, there is near universal agreement that simple assault is
not such a crime. See, e.g., In re Solon, 24 I. & N. Dec. 239, 241
(BIA 2007). But when, as in the present case, the court must
use a categorical approach for classifying crimes, and only
some of the conduct covered by a statute appears to be suffi-
ciently vile, base, immoral, or depraved to deserve the label
moral turpitude, it is hard to be sure when or whether the line
from ordinary culpability to moral turpitude has been
crossed.
A great deal can hang on the proper characterization of an
offense, as the case now before us illustrates. In 1998 Juan Car-
los Garcia-Martinez pleaded guilty to assault with a deadly
weapon in violation of New Jersey law. See N.J.S.A. § 2C:12-
1(b)(2). The question here is how that crime affects his immi-
gration status. The Board of Immigration Appeals (the Board)
No. 18-1797 3
has found in the past that “assault with a deadly weapon” is
a crime of moral turpitude that makes a noncitizen ineligible
for cancellation of removal. See Matter of Logan, 17 I. & N. Dec.
367, 369 (BIA 1980); 8 U.S.C. § 1229b(b)(1)(C); see also Pereira
v. Sessions, 138 S. Ct. 2105, 2110 n.1 (2018) (“The Court uses
the term ‘noncitizen’ throughout this opinion to refer to any
person who is not a citizen or national of the United States.”).
But we now know from Leocal v. Ashcroft, 543 U.S. 1, 7 (2004),
that the Board must approach this as a categorical inquiry, not
one based on the facts of an individual case. We must there-
fore consider whether the crime New Jersey has labeled “as-
sault with a deadly weapon” covers only conduct that is
properly classified as a crime of moral turpitude, or if on the
other hand it sweeps in factual scenarios that are akin to sim-
ple assault. If the latter is true, as Garcia-Martinez contends,
his crime of conviction is not categorically one of moral turpi-
tude. The Board found that there was no realistic probability
that the New Jersey law could be applied to conduct outside
the scope of the generic crime. It therefore concluded that
Garcia-Martinez’s earlier conviction was for a crime involving
moral turpitude.
On Garcia-Martinez’s petition for review, we conclude
that the Board committed several legal errors that may have
affected its decision. We thus grant the petition and remand
for further proceedings.
I
Petitioner Garcia-Martinez, who also has gone under the
name Andres Garcia-Martinez, lacks lawful status in the
United States. The Department of Homeland Security has
charged him as removable on two bases: first, for being pre-
sent in the United States without being admitted or paroled,
4 No. 18-1797
see 8 U.S.C. § 1182(a)(6)(A)(i); and second, for having been
convicted of a crime involving moral turpitude, see 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). The two grounds carry significantly dif-
ferent consequences. Presence without being admitted or pa-
roled—which Garcia-Martinez admits applies to him—is the
less severe of the two. Under that ground, he may qualify for
discretionary cancellation of removal. See 8 U.S.C. § 1229b(a).
That is not possible if the Board correctly found that he has a
conviction for a crime of moral turpitude on his record.
Should the latter be true, he would be barred from cancella-
tion of removal and adjustment of status. See 8 U.S.C.
§ 1229b(b)(1)(C). Given Garcia-Martinez’s concession, the
only question before us is whether the Board correctly found
that the New Jersey crime was one of moral turpitude.
Some of the circumstances surrounding Garcia-Martinez’s
conviction are uncontested. In 1998, he pleaded guilty in New
Jersey to a state charge of assault with a deadly weapon. Ac-
cording to his plea colloquy, Garcia-Martinez’s role in the as-
sault was minor: he stuck out his foot in order to trip the vic-
tim. Once the victim was on the ground, Garcia-Martinez’s
friends “jumped on [the victim] and started hitting him” and
“some of [Garcia-Martinez’s] friends punched [the victim],
kicked him and struck him.” Garcia-Martinez stood by while
his friends carried out their assault; he soon left the scene. The
New Jersey prosecutor and judge accepted this recitation of
the facts as sufficient to convict Garcia-Martinez as both a
principal and an accomplice. Neither the prosecutor nor the
judge asked about the level of force used by any of the assail-
ants, any weapons used other than fists and feet, or the
amount of harm the victim suffered.
No. 18-1797 5
At Garcia-Martinez’s hearing before the Immigration
Judge (IJ), no one suggested that this account of his conviction
was incomplete. Instead, both the lawyer from the Depart-
ment of Homeland Security and Garcia-Martinez focused on
whether a New Jersey conviction for assault with a deadly
weapon is a crime of moral turpitude when the deadly
weapon at issue is the perpetrator’s hands or feet—specifi-
cally the foot Garcia-Martinez used to trip his victim. The IJ,
later affirmed by the Board, did not decide whether the foot
for this purpose was deadly. Yet at the same time, both the IJ
and the Board found that the record of Garcia-Martinez’s
crime did not foreclose the possibility that his accomplices
used some traditional deadly weapon during the commission
of the offense. Relying on that speculation, the Board ruled
that there was no realistic probability that New Jersey’s crime
of assault with a deadly weapon would sweep in conduct be-
yond the scope of a crime of moral turpitude. On that basis, it
concluded that Garcia-Martinez was removable on this
ground and thus not eligible for cancellation of removal.
II
There are several problems with the BIA’s resolution of
Garcia-Martinez’s petition. First, the BIA has never defined
what it considers a “deadly weapon” in the context of a crime
involving moral turpitude. Second, the record is devoid of ev-
idence that might support the BIA’s idea that Garcia-Mar-
tinez’s accomplices used any conventional weapon—a suppo-
sition that appears to have been central to the Board’s deci-
sion. Third, the BIA misconstrued Garcia-Martinez’s argu-
ment regarding the factual basis for his plea and decided his
case based on an argument first raised outside of the adver-
sarial process.
6 No. 18-1797
A
Before addressing the merits, we must clarify the standard
of review that applies here. It is important for this purpose to
distinguish between a party’s burden to raise a point
(whether legal or factual) before the Board, and a party’s bur-
den of persuasion. Legal issues, including the characteriza-
tion of a crime as one of moral turpitude, receive plenary re-
view in this court. In order properly to exhaust his remedies,
a petitioner has the burden of raising that legal point before
the Board, see 8 U.S.C. § 1252(d)(1), but both the Board and
this court then decide the question as a matter of law. For fac-
tual questions, the petitioner bears the burden of production
and persuasion.
While these rules are well established, their application be-
came confused for a time as a result of the Board’s decision in
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (Silva-
Trevino I). Silva-Trevino I established a three-part test for de-
termining when a person has been convicted of a crime of
moral turpitude. That test first required the immigration
judge to “determine whether there is a realistic probability,
not a theoretical possibility, that a State or Federal criminal
statute [of conviction] would be applied to reach conduct that
does not involve moral turpitude.” Id. at 698 (internal quota-
tions omitted). If that categorical analysis did not resolve the
inquiry, the judge was instructed to proceed to step two, un-
der which the judge would take a “modified categorical” ap-
proach and “examine whether the alien’s record of convic-
tion—including documents such as the indictment, the judg-
ment of conviction, jury instructions, a signed guilty plea and
the plea transcript—evidence[d] a crime that in fact involved
moral turpitude.” Id. at 690. Finally, if the record of conviction
No. 18-1797 7
was also inconclusive, Silva-Trevino I instructed the IJ to “con-
sider evidence beyond the formal record of conviction.” Id.
Critically, step three of the Silva-Trevino I framework, and
probably part of step two (insofar as it required the IJ to make
a determination about the particular facts of the conviction)
put a burden of producing historical facts on the noncitizen.
See id. at 703 n.4. Silva-Trevino I was still the Board’s last au-
thoritative word at the time when this court decided cases
such as Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014), and
Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014). In both
of those decisions, we recognized that the Board was using an
individualized inquiry. See Sanchez, 757 F.3d at 718; Cano-
Oyarzabal, 774 F.3d at 917 (applying Silva-Trevino I and look-
ing at “evidence beyond the formal record of conviction” to
“discern the nature of the underlying conviction”). Step three
of the Silva-Trevino I framework invites the submission of
facts related to the conviction. As with all facts, it was the
noncitizen’s burden to find and present that evidence.
But Silva-Trevino I is no longer the law. The Board revisited
this very case in Silva-Trevino III, supra, after the Attorney
General directed it to develop “a uniform standard for deter-
mining whether a particular criminal offense is a crime in-
volving moral turpitude.” 26 I. & N. at 826, citing Matter of
Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (remand order)
(Silva-Trevino II). In carrying out the Attorney General’s in-
struction, the Board was guided by the Supreme Court’s de-
cisions in Moncrieffe v. Holder, 569 U.S. 184 (2013); Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007); Shepard v. United States,
544 U.S. 13 (2005); and Taylor v. United States, 495 U.S. 575
(1990). Those decisions collectively spell out the Court’s cate-
gorical and modified categorical methodology for
8 No. 18-1797
characterizing a statute of conviction, and they demonstrate
that the Court has required this approach for immigration
cases.
Following the model established in Moncrieffe, the Board
announced in Silva-Trevino III that it would apply the “realis-
tic probability” test to the crime of conviction to see if it fits
within the generic definition of a crime involving moral tur-
pitude. Silva-Trevino III, 26 I. & N. Dec. at 831. That test, it ex-
plained, “requires us to focus on the minimum conduct that
has a realistic probability of being prosecuted under the stat-
ute of conviction, rather than on the facts underlying the re-
spondent’s particular violation of that statute.” Id. The Board
continued with these remarks:
In cases where the statute of conviction includes
some crimes that involve moral turpitude and
some that do not, adjudicators must determine
if the statute is divisible and thus susceptible to
a modified categorical approach. Under such an
analysis, resort to the record of conviction is
permitted to identify the statutory provision
that the respondent was convicted of violating.
See Descamps, 133 S. Ct. at 2281, 2283 … . A crim-
inal statute is divisible so as to warrant a modi-
fied categorical approach only if (1) it lists mul-
tiple discrete offenses as enumerated alterna-
tives or defines a single offense by reference to
disjunctive sets of “elements,” more than one
combination of which could support a convic-
tion and (2) at least one, but not all, of those
listed offenses or combinations of disjunctive
No. 18-1797 9
elements is a categorical match to the relevant
generic standard.
Id. at 833. Notably, Silva-Trevino III dropped the third part of
the Silva-Trevino I test, which was the part that gave the
noncitizen the opportunity to introduce additional facts about
the conduct giving rise to the crime of conviction. It left intact
the noncitizen’s burden to direct the Board’s attention to a
case (either his own or other cases) showing that the statute
of conviction applies to conduct outside the scope of the ge-
neric offense.
It is true that a “crime of moral turpitude” is an odd match
for the categorical approach. The moral turpitude label refers
to a particular quality of conduct, as opposed to an act that
can be broken into specific elements. But the Board has ad-
dressed this problem by defining various generic crimes that
do have specific elements as either categorically evincing
moral turpitude or not. For example, the Board here com-
pared its generic definition of an aggravated assault to New
Jersey’s crime of assault with a deadly weapon. Both Chevron
deference and the soundness of the Board’s reasoning in Silva-
Trevino III thus lead us to adopt that framework for character-
izing crimes of moral turpitude in immigration cases.
Garcia-Martinez has pointed to his own case to show that
the New Jersey statute under which he was convicted covers
conduct beyond generic assault with a deadly weapon. We
examine that showing, as well as the central legal question
whether his crime of conviction was one of moral turpitude.
See Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 979 (7th Cir.
2016) (describing whether the petitioner’s crime was one of
moral turpitude as the “underlying question of law” in the
case). Courts and agencies decide questions of law
10 No. 18-1797
independent of any burdens of proof imposed on the litigants.
Parks v. Ross, 52 U.S. 362, 373 (1850) (“It is undoubtedly the
peculiar province … of the court to determine all questions of
law arising thereon.”). As applied here, the question whether
the New Jersey law categorically describes a crime of moral
turpitude is for the court to decide. See, e.g., Mata-Guerrero v.
Holder, 627 F.3d 256, 259 (7th Cir. 2010) (“[T]he classification
of a crime as one of moral turpitude is a question of law ….”);
see also Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (explain-
ing that the categorical approach “focus[es] on the legal ques-
tion of what a conviction necessarily established”).
B
Garcia-Martinez was convicted under New Jersey’s gen-
eral assault statute, N.J.S.A. § 2C:12-1. That statute covers as-
saults of all kinds, from simple assault, § 2C:12-1(a), to aggra-
vated assault, § 2C:12-1(b), to assault with an auto or vessel,
§ 2C:12-1(c), to others. There is no dispute that Garcia-Mar-
tinez’s offense was “aggravated assault,” as New Jersey de-
fines it in § 2C:12-1(b), which reads as follows in pertinent
part:
A person is guilty of aggravated assault if he: …
(2) Attempts to cause or purposely or know-
ingly causes bodily injury to another with a
deadly weapon; … .
N.J.S.A. § 2C:12-1b(2). Elsewhere, the New Jersey statute pro-
vides definitions of the terms used in chapter 12 (among oth-
ers). There we find the relevant definition of “deadly
weapon”:
“Deadly weapon” means any firearm or other
weapon, device, instrument, material or
No. 18-1797 11
substance, whether animate or inanimate,
which in the manner it is used or is intended to
be used, is known to be capable of producing
death or serious bodily injury or which in the
manner it is fashioned would lead the victim
reasonably to believe it to be capable of produc-
ing death or serious bodily injury … .
N.J.S.A. § 2C:11-1(c).
Taken together, New Jersey’s law forbidding aggravated
assault and its definition of “deadly weapon” fit comfortably
within the scope of the Board’s definition of a morally turpi-
tudinous generic aggravated assault. Furthermore, the
Board’s holding that, “since the respondent’s offense requires
a knowing or purposeful mens rea, the use of a deadly
weapon, and that the victim suffered bodily harm, it is cate-
gorically a crime of moral turpitude,” is a reasonable applica-
tion of the latter term. Garcia-Martinez does not contest this
point.
But that is not the end of the inquiry. A law that appears
to fit the generic offense on its face might cover conduct that
does not exhibit moral turpitude. See, e.g., Silva-Trevino III, 26
I. & N. Dec. at 833–36 & n.10 (holding that Texas’s indecency-
with-a-child statute did not categorically involve moral turpi-
tude under the realistic probability test, because Texas courts
did not interpret it to require “knowledge that the victim was
a minor”). If the New Jersey statute as applied covers more
conduct, or different conduct, than the generic crime, then it
is not a categorical match. In making that determination, the
Board is entitled to look at the language of the statute, at New
Jersey decisions applying the statute, and at the official record
of the petitioner’s own predicate conviction (i.e. the
12 No. 18-1797
indictment, the record of any guilty plea, and the other Shep-
ard materials). Those materials will shed light on the breadth
of the New Jersey offense. But, as Leocal indicated, the Board
may not explore whether the underlying facts of the specific
case before it meet the generic definition. 543 U.S. at 7 (“This
language requires us to look to the elements and the nature of
the offense of conviction, rather than to the particular facts re-
lating to petitioner’s crime.”).
We review de novo the BIA’s legal conclusion that Garcia-
Martinez’s statute of conviction as applied remains a match
for the generic crime. Kiorkis v. Holder, 634 F.3d 924, 928 (7th
Cir. 2011). The Supreme Court has instructed that, in conduct-
ing that inquiry, a court must find:
a realistic probability, not a theoretical possibil-
ity, that the State would apply its statute to con-
duct that falls outside the generic definition of a
crime. To show that realistic probability, an of-
fender, of course, may show that the statute was
so applied in his own case. But he must at least
point to his own case or other cases in which the
state courts in fact did apply the statute in the
special (nongeneric) manner for which he ar-
gues.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). For this
purpose, Garcia-Martinez is relying on the facts of his own
conviction.
C
As we noted at the outset, both the Board and this court
have described a crime involving moral turpitude as “conduct
that shocks the public conscience as being inherently base,
No. 18-1797 13
vile, or depraved, and contrary to the accepted rules of moral-
ity and the duties owed between persons or to society in gen-
eral.” Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir. 2014) (quot-
ing Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009))
(internal quotation marks omitted); Silva-Trevino III, 26 I. & N.
Dec. at 833. With that definition in mind, the Board should
have asked whether the minimum (hypothetical) conduct for
which there is a realistic probability of prosecution under the
statute being considered reflects the necessary degree of de-
pravity. Silva-Trevino III, 26 I. & N. Dec. at 831. If the crime of
conviction can apply to both conduct involving moral turpi-
tude and conduct that does not meet that standard, then it is
not categorically a crime involving moral turpitude. Id. at
830–31. A conviction under such a statute thus would not
make a petitioner inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). (Some statutes are divisible and thus sub-
ject to a modified categorical analysis, see Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016), but both parties agree that
the aggravated-assault subsection of N.J.S.A. § 2C:12-1b can-
not be divided up any further.)
In Garcia-Martinez’s case, the Board strayed from this
“minimum conduct” and “reasonable probability” inquiry.
Instead of accepting the facts as set forth in the state-court rec-
ord of conviction, the Board speculated that one of Garcia-
Martinez’s accomplices may have possessed a traditional
deadly weapon. It also observed that Garcia-Martinez had not
identified for it “another [New Jersey] case that was prose-
cuted even though the weapon was not sufficiently ‘deadly’
to involve turpitude” (emphasis added). The latter statement
is troublesome for two reasons. First, if the permissible evi-
dence shows that Garcia-Martinez’s own conviction was for
conduct outside the scope of generic assault with a deadly
14 No. 18-1797
weapon, that is enough to show that the minimum conduct
that has a realistic probability of being prosecuted does not
reflect moral turpitude—Garcia-Martinez was, after all, pros-
ecuted for it, and so there was nothing hypothetical about the
risk. Second, it implies that the Board has in mind a range of
deadliness for weapons, and that only after some threshold is
crossed will the crime of assault with that weapon become
one of moral turpitude. Yet the Board did not explain where
that line is drawn, nor did it acknowledge that the use of a
foot to trip someone might represent the minimum conduct
needed for a conviction under New Jersey’s law. Perhaps the
Board has not seen the need for greater precision in its earlier
cases, because in those instances the weapons have fit well
within the common-sense core of the “deadly weapon” label.
But even a brief review of state and federal cases shows that
the line that defines what counts as a deadly weapon can be
drawn in many places. Given the Board’s longstanding posi-
tion that simple assault is not a crime of moral turpitude, see,
e.g., Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989), a
“deadly weapon” conviction in some states may fall on the
“non-turpitudinous” side of the line.
For all the record of conviction here shows, the only weap-
ons anyone had in the fracas leading to Garcia-Martinez’s ear-
lier conviction were body parts: hands, fingers, feet. Body
parts are sometimes, but not always, considered to be deadly
weapons. Cases so holding include State v. Allen, 193 N.C.
App. 375 (2008) (hands); State v. Bennett, 328 S.C. 251 (1997)
(hands and fists); People v. Ross, 831 P.2d 1310 (Colo. 1992)
(fists); and Pulliam v. State, 298 So.2d 711 (Miss. 1974) (hands
and feet). In other instances, courts have declined to charac-
terize body parts as deadly or dangerous weapons. See People
v. Aguilar, 16 Cal.4th 1023, 1034 (1997) (hands and feet cannot
No. 18-1797 15
be deadly weapons); United States v. Rocha, 598 F.3d 1144, 1157
(9th Cir. 2010) (hands and feet not deadly or dangerous weap-
ons). Some of the latter courts do allow a finding that a tennis
shoe on an assailant’s foot, which is then used to kick a victim,
is a deadly weapon. United States v. Swallow, 891 F.3d 1203,
1205 (9th Cir. 2018) (tennis shoes qualify as dangerous
weapon because they were “undoubtedly used … to augment
the force” of kicks); United States v. Steele, 550 F.3d 693, 699
(8th Cir. 2008) (kicking victim in torso with tennis shoes). Still
other cases have considered teeth to be deadly weapons when
used to bite a victim, though these cases often had the threat
of HIV transmission lurking in the background. See, e.g.,
United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995). New Jersey,
the state of Garcia-Martinez’s conviction, has its own quirks.
There, placing a hand in a pocket so as to make a victim be-
lieve it is a gun counts as the use of a deadly weapon. See State
v. Hutson, 107 N.J. 222, 226–28 (1987).
The Board left most of this unexplored. It did not explain
why Garcia-Martinez’s act of sticking his leg out to trip the
victim was an act of moral turpitude, thus making his offense
fall within the generic crime of assault with a deadly
weapon—if that is indeed what it decided (also unclear). To
the extent the Board was relying on accomplice liability, it did
not explain whether its decision rested only on the assump-
tion that the actual assailants were using their fists, or also on
the unsupported speculation that they were holding some
other unspecified weapon that the New Jersey judge thought
unimportant enough not to address. This is pertinent, we
stress, only for the light it sheds on the scope of the New Jer-
sey statute. New Jersey is free to convict people under any of
these theories or factual assumptions, but if its statute sweeps
in the use of a leg to trip someone (something that has
16 No. 18-1797
probably happened in every elementary school in the country
at one time or another), then the question is whether that con-
duct matches the generic definition of use of a deadly weapon
in a way that involves moral turpitude, or if instead it is too
broad for the New Jersey conviction to be used for immigra-
tion purposes.
The Board did not explain why the generic definition of
assault with a deadly weapon includes tripping. If that omis-
sion was because it was not relying on the use of the foot to
trip and instead was looking at Garcia-Martinez’s accom-
plices, we have a different problem: there is no record evi-
dence (i.e. evidence satisfying the Shepard criteria, as required
by Silva-Trevino III) that they used anything but their own fists
and feet. The Board’s musings that the actual assailants may
have had other weapons are no substitute for evidence. And
absent some evidence of a traditional deadly weapon before
the state court, Garcia-Martinez’s conviction could not have
“‘necessarily’ rested” on the existence of such a weapon. Shep-
ard, 544 U.S. at 21. Moreover, the Board did not explain why
the accomplices’ known behavior falls within the generic def-
inition of the offense of conviction. Its failure to explore these
points cannot be dismissed as harmless error. The process
works only if the Board, using the categorical approach, slogs
through each statute and decides whether it categorically
stays within the boundaries of a crime of moral turpitude for
purposes of section 1182(a)(2)(A)(i)(I), or if it encompasses ad-
ditional behavior that does not so qualify.
Garcia-Martinez was sentenced to time served for his plea
to assault with a deadly weapon. Had he known that the
Board would consider this statute of conviction categorically
to involve moral turpitude—even though he insists that his
No. 18-1797 17
only act was to trip his victim—he may have gone to trial, or
he may have pleaded guilty to a different statutory violation
calling for additional incarceration but less serious immigra-
tion consequences. See Mellouli, 135 S. Ct. at 1987 (describing
“safe harbor” guilty pleas that shield defendants from immi-
gration consequences). Defendants, their attorneys, and pros-
ecutors must constantly negotiate this balancing act among
trial, criminal punishment, and immigration consequences.
See Lafler v. Cooper, 566 U.S. 156, 169 (2012) (“[C]riminal justice
today is for the most part a system of pleas, not a system of
trials. Ninety-seven percent of federal convictions and ninety-
four percent of state convictions are the result of guilty
pleas.”). It is incumbent on courts and agencies to establish
rules and standards that allow each of these actors to appre-
ciate the full consequences of their choices. See Sessions v. Di-
maya, 138 S. Ct. 1204, 1212 (2018) (explaining that providing
“fair notice” of the criminal consequences of an individual’s
actions is at the core of the due process guarantee); Padilla v.
Kentucky, 559 U.S. 356 (2010) (requiring effective counsel to
advise defendants of the immigration consequences of a
guilty plea).
Garcia-Martinez cannot go back in time and renegotiate
his plea in response to whatever definition of “deadly
weapon” the Board now adopts. But both he and this court
are entitled to know why the Board characterized his New
Jersey offense as it did. Because we cannot tell on this record,
we must return this case to the Board for further proceedings.
D
To the extent that it may be relevant, we note as well that
the Board seems to have misconstrued what Garcia-Martinez
is saying about the factual basis for his conviction. Garcia-
18 No. 18-1797
Martinez argued that his plea colloquy contained the entire
factual basis for his conviction. The Board understood him to
be saying that the plea colloquy was inconclusive on the ques-
tion whether his accomplices possessed some unidentified
traditional deadly weapon. It then stated that any factual am-
biguity about whether the record established the type of
weapon(s) Garcia-Martinez’s accomplices were or were not
using was to be construed against him because “he bears the
burden of establishing his eligibility for relief,” citing 8 U.S.C.
§ 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d). It is true that for
the case as a whole, Garcia-Martinez had the burden of pro-
ducing whatever facts were pertinent to his application for
cancellation of removal. Cf. Lopez-Esparza v. Holder, 770 F.3d
606, 607 (7th Cir. 2014) (noting that under the same regula-
tions as are applicable here, petitioner bears burden of prov-
ing the factual contention that he had been continuously pre-
sent in the United States for ten years). But now that Silva-Tre-
vino III has replaced Silva-Trevino I, the question whether the
crime of conviction is one of moral turpitude does not turn on
the particular facts underlying the conviction. Garcia-Mar-
tinez was entitled to show the Board the record on which the
New Jersey courts actually relied; that record shows that he
was convicted without any further fact-finding about the na-
ture of the accomplices’ weapons. The only task left for the
Board was to decide as a matter of law how the New Jersey
statute maps onto the generic offense of assault with a deadly
weapon.
The Board failed to explain why Garcia-Martinez failed to
meet his burden of showing applications of New Jersey law
that went beyond the generic offense. It seemingly rested this
conclusion on its belief that all parties agreed that Garcia-
Martinez’s plea colloquy was ambiguous. That is not accurate.
No. 18-1797 19
In fact, the argument that the factual basis for Garcia-Mar-
tinez’s plea was incomplete or inconclusive came as a surprise
to everyone: rather than coming from the DHS attorney, it
originated with the IJ at the hearing. Garcia-Martinez has con-
tended throughout these proceedings that his state plea collo-
quy, which is in the record, laid out all of the facts relevant to
his conviction. The DHS attorney at his initial hearing did not
suggest otherwise. And Garcia-Martinez’s argument com-
ports with the Supreme Court’s instructions to present a tran-
script of a plea colloquy to establish the facts of a pleaded con-
viction for the categorical inquiry. See Shepard, 544 U.S. at 20–
21 (“[I]n pleaded cases the [relevant documents] would be the
statement of factual basis for the charge … shown by a tran-
script of plea colloquy …. With such material in a pleaded
case, a later court could generally tell whether the plea had
‘necessarily’ rested on the fact identifying the [crime] as ge-
neric.”). Additionally, the New Jersey Supreme Court re-
quires courts to establish a factual basis before accepting a
guilty plea, and the state court accepting Garcia-Martinez’s
conviction said nothing about the need to establish the exist-
ence of a traditional deadly weapon. See State v. Lipa, 219 N.J.
323, 331 (2014) (citing State v. Crawley, 149 N.J. 310, 318 (1997))
(“Before a court can accept a defendant’s guilty plea, it first
must be convinced that [ ] the defendant has provided an ad-
equate factual basis for the plea ….”).
Last, the Board did not explain why, given the abrupt way
in which the IJ found factual ambiguity, it nevertheless up-
held the IJ’s decision to rule against Garcia-Martinez without
offering him the opportunity to respond. It appears to us that
Garcia-Martinez has entered all the relevant Shepard docu-
ments into the record, and so the Board should be able to de-
cide as a matter of law whether New Jersey’s assault with a
20 No. 18-1797
deadly weapon statute is closer to generic simple assault, and
thus not a crime of moral turpitude, or stays within the
boundaries of generic assault with a deadly weapon, and thus
reflects moral turpitude. On remand if the BIA is concerned
about the completeness of Garcia-Martinez’s Shepard docu-
ments, it should explain that view and Garcia-Martinez
should be given the opportunity to present any necessary ad-
ditional materials.
III
We GRANT the petition for review and REMAND the case
to the Board of Immigration Appeals for further proceedings
consistent with this opinion.