Lazaro Larios v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 19-2594
____________

LAZARO JAVIER LARIOS,
Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________

On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency No. A073-559-938)
Immigration Judge: Annie S. Garcy
____________

Argued March 4, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE,
Circuit Judges

(Opinion Filed: October 14, 2020)
Regis Fernandez [Argued]
7 Federal Square
Newark, NJ 07102
Attorney for Petitioner

Raya Jarawan [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Anthony C. Payne
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent

____________

OPINION OF THE COURT
____________

KRAUSE, Circuit Judge.

To determine if a noncitizen convicted of a state offense
is subject to immigration consequences prescribed in federal
law, the Supreme Court has instructed courts to compare
whether the elements of the state offense define a crime that is
the same as or narrower than the generic federal offense. See
Descamps v. United States, 570 U.S. 254, 257 (2013). This

2
analysis, which has come to be known as the “categorical
approach,” sounds simple in theory but has proven difficult
(and often vexing) in practice, necessitating a “modified
categorical approach” and generating an evolving
jurisprudence around when the categorical or modified
categorical approach applies.

That difficulty is borne out in the convoluted history of
this case. Here, in what is now Lazaro Javier Larios’s third
petition for review from prior reversals, the Board of
Immigration Appeals (BIA) applied the categorical approach
and held Larios ineligible for cancellation of removal under 8
U.S.C. § 1229b(b)(1) for having been convicted of “a crime
involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Because we conclude the crime at issue—New Jersey’s
terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should
have been analyzed under the modified categorical approach,
and, under that approach, the particular offense of which Larios
was convicted is not a crime involving moral turpitude, we will
grant the petition for review.

I. Factual and Procedural History

For nonpermanent residents who meet the eligibility
criteria outlined in 8 U.S.C. § 1229b(b)(1), cancellation of
removal is a discretionary form of relief that “allows [them] to
remain in the United States despite being found removable.”
Barton v. Barr, 140 S. Ct. 1442, 1445 (2020). But those who
have “been convicted of an offense under section 1182(a)(2),”
8 U.S.C. § 1229b(b)(1)(C)—which includes “a crime
involving moral turpitude” (CIMT), id. § 1182(a)(2)(A)(i)(I)—
are ineligible for cancellation of removal.

3
 Larios, an El Salvadoran national, entered the country
without inspection in 1986. In 1998, Larios was approached
by someone outside of a bar and, allegedly because he believed
he would be robbed, pulled out a knife and caused the person
to flee. Larios pleaded guilty to “threaten[ing] to commit any
crime of violence with the purpose to terrorize another . . . or
in reckless disregard of the risk of causing such terror” in
violation of N.J. Stat. Ann. § 2C:12-3(a). Some years later in
2006, he was served a Notice to Appear and entered removal
proceedings. Since then, Larios has been seeking cancellation
of removal.

The IJ and the BIA in 2008 determined that Larios’s
crime of conviction was a categorical match for a CIMT,
rendering him ineligible for cancellation of removal.

In 2008, Larios filed his first of three petitions for
review to this Court and argued that his crime could not qualify
as a CIMT because, under the categorical approach, the
elements of a state statute must define an offense not broader
than the federal statute, whereas here, “the least culpable
conduct necessary to sustain a conviction under the [New
Jersey] statute,” Partyka v. Att’y Gen., 417 F.3d 408, 411
(3d Cir. 2005)—a threat to commit “simple assault”—did not
meet the criteria to qualify as “turpitudinous” under
§ 1182(a)(2)(A)(i)(I) and the relevant case law, Larios v. Att’y
Gen., 402 F. App’x 705, 708–09 (3d Cir. 2010). We agreed
that, because it swept in simple assault, the statute
encompassed both turpitudinous and non-turpitudinous
conduct, and based on our understanding of the categorical
approach at the time, we held the statute was divisible. See id.
at 709. That understanding changed a few years later with
Descamps v. United States, 570 U.S. 254 (2013), but our

4
divisibility analysis then focused on whether a statute
comprised both turpitudinous and non-turpitudinous conduct,
rather than whether it comprised different, alternative elements
(one or more of which may be turpitudinous). Regardless, the
purpose of the modified categorical approach has always been
to determine which portion of the statute formed the basis for
the petitioner’s conviction. Thus, we remanded for the agency
to apply the modified categorical approach to determine
whether Larios had been convicted of the turpitudinous or the
non-turpitudinous part of the statute. See id.

On remand, however, the IJ declined to apply the
modified categorical approach and instead concluded that the
categorical approach applied after all. The IJ reasoned that
simple assault, under New Jersey law, N.J. Stat. Ann.
§ 2C:1-4(b), was not a “crime” at all, only “a disorderly
persons offense [or] . . . a petty disorderly persons offense,” id.
§ 2C:12-1(a). See A.R. 675–76 (citing State v. MacIlwraith,
782 A.2d 964, 966 (N.J. App. Div. 2001)). And because New
Jersey’s terroristic-threats statute covers only threats to
“commit a[] crime of violence,” N.J. Stat. Ann. § 2C:12-3(a)
(emphasis added), the IJ explained, a threat to commit simple
assault was not covered by that statute, excluding the only
non-turpitudinous application and, hence, the need for the
modified categorical approach.

Applying the categorical approach yet again, the IJ
relied on BIA precedent that statutes criminalizing “the
intentional transmission of threats of violence are categorically
CIMTs,” A.R. 676 (citing Matter of Ajami, 22 I. & N. Dec.
949, 952 (BIA 1999)), and the New Jersey Model Jury
Charge’s description of a terroristic threat as one “convey[ing]
menace or fear,” id. (citing New Jersey Model Criminal Jury

5
Charge, § 2C:12-3(a), at 2), to conclude that the statute covered
only turpitudinous offenses and was therefore a categorical
match with § 1182(a)(2)(A)(i)(I).

The BIA affirmed, summarizing the IJ’s analysis but,
for its own part, stating only that it agreed that the actus reus,
simple assault, was not a “crime of violence” under New Jersey
law. That explanation left unclear whether the BIA had
compared the mens rea of the state offense—“purpose” or
“reckless disregard,” N.J. Stat. Ann. § 2C:12-3(a)—to the
generic offense, and under that analysis, whether the New
Jersey statute was still a categorical match for
§ 1182(a)(2)(A)(i)(I)’s generic offense. So after Larios filed
his second petition for review, we granted the Government’s
motion to remand “to allow the Board to clarify whether its
analysis was properly limited to the ‘crime of violence’
element of the statute, or, alternatively, to allow the Board to
consider the mental state element.” A.R. 54.

This time on remand, the BIA held the mens rea
element, too, was a categorical match, treating both purpose
and reckless disregard as “an intentional or vicious state of
mind,” A.R. 5, and treating a threat with that mens rea as an
“act committed with an appreciable level of consciousness or
deliberation,” id. at 4 (quoting Partyka, 417 F.3d at 414). So
it again rejected Larios’s cancellation-of-removal application.

We now consider Larios’s third, timely filed petition for
review.

II. Jurisdiction and Standard of Review

The BIA exercised jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15, and we exercise jurisdiction over

6
the question of law presented by this petition for review under
8 U.S.C. § 1252(a). Our review of that legal question is
plenary. Moreno v. Att’y Gen., 887 F.3d 160, 163 (3d Cir.
2018).

So long as its determination is “based on a permissible
interpretation” of the immigration statute, we give deference to
“the BIA’s definition of moral turpitude, . . . as well as the
BIA’s determination that a certain crime involves moral
turpitude” in its published opinions. Mehboob v. Att’y Gen.,
549 F.3d 272, 275 (3d Cir. 2008) (citation omitted); see De
Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 349 (3d Cir. 2010).
We do not, however, defer to “the BIA’s parsing of the
elements of the underlying [state] crime,” nor do we accord any
deference to an opinion—like the one we review today—
constituting an “unpublished, non-precedential decision issued
by a single BIA member.” Mahn v. Att’y Gen., 767 F.3d 170,
173 (3d Cir. 2014).

III. Discussion

For Larios, the sticking point in terms of his eligibility
for cancellation of removal is whether his conviction for
making a terroristic threat under N.J. Stat. Ann. § 2C:12-3(a)
is a CIMT. First, we explain why § 2C:12-3(a) should be
analyzed under the modified categorical approach rather than
the categorical approach, and, second, we apply the modified
categorical approach to the particular alternative under which
Larios was convicted: “threaten[ing] to commit any crime of
violence with the purpose to terrorize another . . . or in reckless
disregard of the risk of causing such terror.” N.J. Stat. Ann.
§ 2C:12-3(a).

7
 A. The Modified Categorical Approach Applies
Here

When a state conviction is subject to federal criminal or
immigration consequences, we use the now-familiar
categorical approach or modified categorial approach to
determine whether a petitioner’s crime of conviction matches
the generic federal offense—here, whether N.J. Stat. Ann.
§ 2C:12-3(a) is a categorical match for § 1182(a)(2)(A)(i)(I)
and thus qualifies as a CIMT.

In the ordinary case, we analyze state statutes under the
categorical approach. Under that framework, we consider
whether the “least culpable conduct hypothetically necessary
to sustain a conviction under the statute” would also be covered
by the federal statute. Moreno, 887 F.3d at 163 (quoting Jean-
Louis v. Att’y Gen., 582 F.3d 462, 471 (3d Cir. 2009)). A
categorical match occurs if a state statute’s elements define a
crime identical to or narrower than the generic crime because
“anyone convicted under that law is necessarily . . . guilty of
all the [generic crime’s] elements.” Descamps, 570 U.S. at 261
(alterations in original) (internal quotation marks and citation
omitted). But if the state offense covers more conduct, then it
is overbroad and does not match the generic offense. The
approach is “categorical” because we look only to the elements
of the state offense, “not to the particular facts underlying th[at]
conviction[].” Id. at 161 (internal quotation marks and citation
omitted).

This analysis is straightforward enough for an
indivisible state offense with a single set of elements. But
where the statute is divisible—that is, “(1) the statute of
conviction has alternative elements, and (2) at least one of the
alternative divisible categories would, by its elements, be a

8
match with [the] generic federal crime,” a CIMT—then, the
so-called “modified categorical approach” applies instead.
Hillocks v. Att’y Gen., 934 F.3d 332, 339 (3d Cir. 2019)
(internal quotation marks and citation omitted). The
modification is a small one, allowing the court to review “a
limited set of documents” for the sole purpose of identifying
whether the petitioner was convicted of a CIMT or non-CIMT
alternative. Id. at 338. This modification serves “not as an
exception, but instead as a tool . . . [for] preserv[ing] the
categorical approach’s basic method: comparing [statutory]
elements with the generic offense’s,” while disregarding the
particular facts of the crime the petitioner committed.
Descamps, 570 U.S. at 263.

When the modified categorical approach is “[a]pplied in
[this] way—which is the only way [the Supreme Court has]
ever allowed,” id., it retains its proper focus on the elements of
the crime: the actus reus, mens rea, and causation. These are
what “the State must prove . . . beyond a reasonable doubt” to
sustain a conviction, State v. Tindell, 10 A.3d 1203, 1217 (N.J.
Super. Ct. App. Div. 2011), or, “at a plea hearing, . . . what the
defendant necessarily admits when he pleads guilty,” Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016) (citation omitted).
Disjunctives in statutes often provide “textual clue[s]” of
divisibility, Hillocks, 934 F.3d at 343, but they are not
dispositive because statutes that merely “enumerate[] various
factual means of committing a single element” are not in fact
divisible, Mathis, 136 S. Ct. at 2249.

Here, the parties dispute whether N.J. Stat. Ann.
§ 2C:12-3(a) is divisible and requires application of the
modified categorical approach. On de novo review, see
Moreno, 887 F.3d at 163, we agree with Larios that the BIA

9
erred in treating the statute as indivisible and applying the
categorical approach.

In relevant part, New Jersey’s terroristic-threats statute
provides:

A person is guilty of a crime of the third degree
if he threatens to commit any crime of violence
with the purpose to terrorize another or to cause
evacuation of a building, place of assembly, or
facility of public transportation, or otherwise to
cause serious public inconvenience, or in
reckless disregard of the risk of causing such
terror or inconvenience.

N.J. Stat. Ann. § 2C:12-3(a) (1981).

In view of the numerous disjunctives, we look to state
law to see whether these are alternative elements delineating
separate offenses, or merely alternative means to commit one
offense. See, e.g., Hillocks, 934 F.3d at 339. “Whe[re] a ruling
from an ‘authoritative source[] of state law’ resolving this
means-or-elements question ‘exists, a . . . judge need only
follow what it says,’” Singh v. Att’y Gen., 839 F.3d 273, 283
(3d Cir. 2016) (second and third alterations in original)
(quoting Mathis, 136 S. Ct. at 2256), and here, fortunately, we
have that authoritative source in a New Jersey Superior Court
decision.1 In State v. Tindell, 10 A.3d 1203 (N.J. Super Ct.

1
Where “there is no opinion or other persuasive data on
point from the Supreme Court of [New Jersey], [] it is
appropriate to rely on a decision of the Superior Court of [New

10
App. Div. 2011), the court made clear that § 2C:12-3(a)
incorporates three alternatives, each of which has the same
actus reus, i.e., “threatens to commit any crime of violence,”
N.J. Stat. Ann. § 2C:12-3(a), and a mens rea incorporating
either “purpose . . . or . . . reckless disregard of the risk,” id.,
but a different, alternative causation element: (1) “to terrorize
another,” (2) “to cause evacuation,” or (3) “to cause serious
public inconvenience,” id. See Tindell, 10 A.3d at 1217–18;
see also State v. Conklin, 927 A.2d 142, 143 (N.J. Super Ct.
App. Div. 2007) (same); New Jersey Model Criminal Jury
Charge, § 2C:12-3(a) (same).2

In sum, N.J. Stat. Ann. § 2C:12-3(a) requires the
modified categorical approach because it has “alternative
elements,” and the Government does not dispute that “at least
one of the alternative divisible categories would, by its

Jersey].” Singh, 839 F.3d at 283 n.5 (internal quotation marks
omitted).
2
There is no indication New Jersey treats the mens rea
of “purpose . . . or [] reckless disregard” as itself divisible into
alternative elements. Though we have previously determined
that Pennsylvania’s terroristic-threats statute, see 18 Pa. Const.
Stat. § 2706(a) (1998), also based on § 211.3 of the Model
Penal Code, is divisible as to its mental states, our analysis
relied on the specific structure of that statute, which listed the
disjunctive means rea in only the third subsection, and not the
first two. New Jersey’s statute is structured differently, and
thus, we follow Tindell and the Model Jury Charge in
treating purpose and reckless disregard as indivisible means
of satisfying the mens rea element under N.J. Stat. Ann.
§ 2C:12-3(a).

11
elements, be a match with a generic federal crime.” Hillocks,
934 F.3d at 339 (internal quotation marks and citation omitted).
We turn now to applying this approach to Larios’s crime of
conviction.

B. Larios’s Crime of Conviction Is Not a CIMT

Under the modified categorical approach, we must first
consider “what crime, with what elements, a defendant was
convicted of” and then “compare that crime, as the categorical
approach commands, with the [CIMT] generic offense.”
Mathis, 136 S. Ct. at 2249.

1. Larios’s Crime of Conviction

Under Shepard v. United States, 544 U.S. 13 (2005),
courts may consult only “a limited class of documents”
specified by the Supreme Court to determine which alternative
version of the crime formed the basis for a petitioner’s
conviction. Mathis, 136 S. Ct. at 2249. These so-called
Shepard documents are comprised of the “charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant
assented,” but not “police reports or complaint applications.”
Shepard, 544 U.S. at 16.

Here, the transcript of Larios’s plea colloquy reveals
that he was convicted “under subsection (a), [of a] threat to
commit . . . a crime of violence.” A.R. 384. During the
colloquy, the judge also confirmed that Larios was pleading
guilty to “threatening to commit an assault upon a person . . .
by—causing [him] to be in fear.” A.R. 391. Thus, in full, the
alternative offense that formed the basis for Larios’s
conviction is “threaten[ing] to commit any crime of violence

12
with the purpose to terrorize another . . . or in reckless
disregard of the risk of causing such terror.” N.J. Stat. Ann.
§ 2C:12-3(a). The remaining question before us is whether that
alternative is a CIMT.

2. CIMT Analysis

To determine whether Larios’s alternative is a
categorical match, we must first ascertain the elements of the
generic offense. There is no statutory definition of a crime
involving moral turpitude, so we draw on “long-established
BIA principles and decisions of our Court,” Knapik v. Ashcroft,
384 F.3d 84, 89 (3d Cir. 2004) (internal citation omitted), for
its elements: (1) an actus reus of “a reprehensible act . . . . that
is inherently base, vile, or depraved contrary to the accepted
rules of morality and the duties owed to other persons, either
individually or to society in general”; and (2) a mens rea of “an
appreciable level of consciousness or deliberation,” signifying
“a vicious motive or a corrupt mind,” Javier v. Att’y Gen., 826
F.3d 127, 130–31 (3d Cir. 2016) (citations omitted); see
Francisco-Lopez v. Att’y Gen., 970 F.3d 431, 435 (3d Cir.
2020).

With this generic construction in mind, we home in
on the elements of Larios’s crime of conviction: an actus
reus of “threaten[ing] to commit any crime of violence,” a
mens rea of “purpose . . . or [] reckless disregard,” and a
causation element of “terroriz[ing] another.” N.J. Stat. Ann.
§ 2C:12-3(a). We have already settled that “a threat to: []
commit any crime of violence with intent to terrorize another”
is a CIMT. Javier, 826 F.3d at 131 (alteration in original); see
also Ajami, 22 I. & N. Dec. at 952 (stating that “the intentional
transmission of threats is evidence of a vicious motive or a
corrupt mind”). The particular alternative offense of which

13
Larios was convicted is the same in all respects, except it
requires a mens rea of only recklessness. Our focus, then, is
whether the “least culpable conduct hypothetically necessary
to sustain a conviction,” Moreno, 887 F.3d at 163, for that
alternative offense is turpitudinous.

Our precedent provides guidance on when recklessness
constitutes a turpitudinous mental state and, conversely, when
it does not. We deemed a mens rea of recklessness
turpitudinous for both New Jersey’s second-degree aggravated
assault offense, Baptiste v. Att’y Gen., 841 F.3d 601, 623
(3d Cir. 2016), and New York’s reckless endangerment
offense, Knapik, 384 F.3d at 93, explaining that there were two
“aggravating factors” in the each statute: “serious bodily
injury” to another, N.J. Stat. Ann. § 2C:12-1b(1), or “grave risk
of death to another person,” N.Y. Penal Law § 120.25, and
“extreme indifference to the value of human life,” N.J. Stat.
Ann. § 2C:12-1b(1), or “a depraved indifference to human
life,” N.Y. Penal Law § 120.25. See Baptiste, 841 F.3d at 622;
Knapik, 384 F.3d at 90. Although these statutes required a
mens rea of only recklessness, the two aggravating factors
ensured the least culpable conduct encompassed by these
statutes was still “inherently base, vile, or depraved.” Baptiste,
841 F.3d at 621; see Knapik, 384 F.3d at 89.

In contrast, we concluded recklessness was not
turpitudinous in Pennsylvania’s reckless endangerment statute
because there was not even one statutory aggravating factor.
That statute criminalizes “conduct that may put a person in
danger,” Mahn, 767 F.3d at 175, and thus could
hypothetically cover “even an individual who drives through
a red light on an empty street or speeds down an empty
thoroughfare,” id. at 174. Focusing on the “least culpable

14
conduct,” we concluded that traffic offenses “do[] not
implicate moral turpitude.” Id. at 172.

Here, the BIA did not articulate what, if any,
aggravating factors it identified in § 2C:12-3(a), and we
perceive none. Whereas the statutes at issue in Baptiste and
Knapik targeted conduct that risks death or serious injury to
another person, New Jersey’s terroristic-threats statute
criminalizes threats that merely carry the risk of “convey[ing]
menace or fear of a crime of violence” to another person,
New Jersey Model Criminal Jury Charge, § 2C:12-3(a), at 2;
and whereas those statutes required a mental state exhibiting
“extreme” and “depraved” indifference to a person’s life,
New Jersey defines recklessness to include “heedless[ness],”
“foolhardi[ness],” or “scorn for the consequences” of causing
fear in another, id. at 3. New Jersey’s terroristic-threats statute,
therefore, lacks the type of aggravating factors that we have
previously recognized would make an offense inherently vile
and depraved.

The Government contends otherwise, pointing us to two
purported statutory aggravating factors. In addition to the
required mental state of “purpose” or “reckless disregard,” the
Government argues, there must both be a “threat” and “a crime
of violence” that is the subject of that threat. Resp’t Br. 25
(internal quotation marks omitted).3 The argument comes up
short.

3
As the alternative offense of which Larios was
convicted does not concern “serious public inconvenience,” we
will not address the Government’s argument that this would
also constitute a statutory aggravating factor. See Resp’t Br.
25.

15
 As to the first factor, the Government reads into the lone
word “threat” an “additional, intentional ‘layer’ to the mens rea
requirement” because it “suggests that the perpetrator must
initially commit a purposeful act.” Resp’t Br. 32–33. But we
already rejected that argument when reviewing Pennsylvania’s
terroristic-threats statute in Bovkun v. Ashcroft, 283 F.3d 166
(3d Cir. 2002). There, we held a “threat[] to commit a crime
of violence” was simply the actus reus, id. at 170 (alteration in
original) (quoting 18 Pa. Cons. Stat. § 2706), and did not carry
its own implicit mens rea, independent of that specified in the
statute. We reaffirm that holding here: Where a statute
specifies the mens rea, courts ordinarily interpret it as applying
throughout the statute, see Rehaif v. United States, 139 S. Ct.
2191, 2196 (2019), and here, nothing in the text, New Jersey
law, or our precedent suggests we should stray from that
ordinary construction.4

4
In support of its construction, the Government cites
Javier, where we held one alternative of Pennsylvania’s
terroristic-threats statute is a CIMT, in part, because of “the
psychological distress that follows from [a threat’s] invasion
of another’s sense of personal security.” 826 F.3d at 131
(quoting Commw. v. Fenton, 750 A.2d 863, 865 (Pa. Super. Ct.
2000)). But the Government places too much weight on
Javier, as our analysis there relied on Pennsylvania law, and
we did not find the threat alone to be a CIMT, but rather
emphasized the match hinged on “the communication of the
threat and its requisite scienter”—namely, “a specific ‘intent
to terrorize.’” Id. (emphasis added) (quoting 18 Pa. Cons. Stat.
§ 2706(a)(1)). The New Jersey alternative of which Larios was
convicted is missing half the equation because, as we have
explained, the least culpable conduct is only a reckless threat.

16
 The Government’s second factor fares no better.
Although we agree that the term “crime of violence” does not
encompass simple assault under New Jersey law, it does
encompass other crimes lacking in the vileness and depravity
required for a statutory aggravating factor. See Baptiste, 841
F.3d at 621. Neither New Jersey law nor the Model Penal Code
defines “crime of violence,” but we draw on the federal
definition of that term, as we did in Bovkun: “an offense that
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.”
Bovkun, 283 F.3d at 169 (quoting 18 U.S.C. § 16(a)). So the
least culpable conduct under § 2C:12-3(a) would be a threat to
commit an offense involving the use of physical force against
a person’s property in reckless disregard of the risk of
terrorizing that person—conduct the Government contends is
necessarily vile and depraved.

Yet New Jersey’s criminal code demonstrates
otherwise: The offense of criminal mischief, for example,
involves “tamper[ing] with tangible property of another so as
to endanger person or property” and causing “pecuniary loss
of $500 or more,” N.J. Stat. Ann. § 2C:17-3(a)(2), so a threat
to commit that particular “crime of violence” would include a
threat to “chip[] away at the patio bricks around the porch of
[a neighbor’s] property,” State in Interest of A.H., 697 A.2d
964, 965 n.1 (N.J. Super. Ct. 1997). No doubt, threats to
engage in this type of conduct would be unwelcome and
un-neighborly, but they do not rise to the level of depraved or
extreme indifference to the risk of causing serious bodily injury
or death.5 See Baptiste, 841 F.3d at 622; Knapik, 384 F.3d at

5
Given that “crime of violence” encompasses property
crimes, it falls short even of “conduct that may put a person in

17
90; see, e.g., Matter of C.P.M., 223 A.3d 616, 620 (N.J. Super.
Ct. App. Div. 2019) (damaging property); State in Interest of
D.P., 556 A.2d 335, 336 (N.J. Super. Ct. 1989) (same); State
v. Clarke, 486 A.2d 935, 937 (N.J. Super. Ct. App. Div. 1985)
(same).

The Government also doubles down on the BIA’s
reasoning that it “ha[d] not identified any case resulting in a
conviction under this statute for far less serious conduct than”
a prototypical terroristic threat, such as “yelling ‘bomb’ in a
sporting arena or a crowded movie theater, or a student
declaring that he is going to open fire in a school.” A.R. 7. In
support, it cites a slew of New Jersey cases signifying that
prosecutions under § 2C:12-3(a) are generally limited to such
egregious conduct. But that is neither here nor there: We have
held that this “realistic probability” analysis is inapplicable
when assessing crimes of moral turpitude under the
categorical (or modified categorical) approaches.6 See Jean-
Louis, 582 F.3d at 471–73. Cf. Cabeda v. Att’y Gen., 971 F.3d
165, 175–76 (3d Cir. 2020) (declining to apply realistic-
probability analysis in the absence of a categorical match
between elements). Instead, we have treated “the possibility of

danger,” which we rejected as a statutory aggravating factor in
Mahn, 767 F.3d at 175 (emphasis altered).
6
We do not defer to the BIA’s recent opinion
classifying Minnesota’s terroristic-threats statute, also based
on the Model Penal Code, as a CIMT because it focuses on “the
minimum conduct that has a realistic probability of being
prosecuted under the statute,” In re Salad, 27 I. & N. 733, 734
(BIA 2020), and we rejected that approach in Jean-Louis, 582
F.3d at 471–73.

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conviction for non-turpitudinous conduct, however remote,” as
sufficient to render the alternative overbroad.7 Jean-Louis, 582
F.3d at 471.

In sum, Larios’s crime of conviction has a minimum
mens rea of recklessness but lacks any statutory aggravating
factors, so the least culpable conduct is a reckless threat to
commit a violent property crime, which under Baptiste,
Knapik, and Mahn, is not turpitudinous. Larios’s offense of
conviction therefore does not qualify as a CIMT under the
modified categorical approach. See Javier, 826 F.3d at
130–31; Hillocks, 934 F.3d at 339.

IV. Conclusion

After more than a decade of litigation, Larios has finally
established he was not convicted of a crime involving moral
turpitude, and the BIA erred in finding him ineligible for

7
In any event, the Supreme Court has approved a
realistic-probability analysis only where “the relevant elements
[for both the state statute and the generic offense] were
identical,” Singh, 839 F.3d at 286 n.10 (discussing Moncrieffe
v. Holder, 569 U.S. 184 (2013), and Gonzales v. Duenas-
Alvarez, 549 U.S. 183 (2007)); Cabeda, 971 F.3d at 175–76,
which does not appear to be the case here. The term “crime
involving moral turpitude” is not defined in 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), and even if the statute listed the elements
of the generic offense, it is exceedingly unlikely they would be
an identical match with the elements of New Jersey’s
terroristic-threats statute. See Jean-Louis, 582 F.3d at 477
(noting that “moral turpitude” will rarely, if ever, be “an
element of the underlying offense”).

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cancellation of removal on that basis. Accordingly, we will
grant the petition for review and remand to the agency for
proceedings consistent with this opinion.

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