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. A 073

- 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 )2 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

Attorney s 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 court s to compare

whether the eleme nts 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). This3 analysis, which has come to be known as the “categorical

approach

, ” sound s simple in theory but has proven difficult

( and often vexing ) in practice

, necessitating a “modified

categorical approach” and generating an evolving

jurisprudence aroun d when the categorical or modified

categorical approach applies

.

That difficulty is b orne out in the convoluted history of

this case. Here, in what is now Lazaro Javier Larios’s third

p etition for r eview from prior reversals, the Board of

Immigration Appeals (BIA) applied the categorical approach

and held Larios ineligible for cancellatio n 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 fou nd 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.4 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 th e 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.

T he IJ and the BIA in 2008 determined that Larios’s

crime of conviction w as a categorical match for a CIMT,

rendering him ineligible for cancellation of removal.

In 2008, Larios filed his first of three petition s 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

§ 11 82 ( 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 agr eed

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 o ur5 divisibility analysis then focused on whether a statute

comprised both turpitudinous and non

- turpitudinous conduct,

rather than whether it comprised d ifferent, 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 modifie d categorical approach to determine

whether Larios had been convicted of the turpitudinous or the

non

- turpitudinous part of the statute

. See id.

On remand, h owever, the IJ declined to apply the

modified categorical approach and instead concluded that the

categorical approach applied after all. The IJ reason ed 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

- turpi tudinous application and , he nce

, 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 Jury6 Charge

, § 2C:12

- 3 ( a )

, at 2 )

, to conclude that the statute covered

only turpitudinous offenses and wa s therefore a categorical

match with § 1182(a)(2)(A) (i) (I)

.

T he BIA affirmed, summariz ing the IJ’s analysis but

, for its own part, stat ing 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 wa s still a categorical match for

§ 1182(a)(2)(A) (i) (I)’s generic offense

. So a fter Larios filed

his second pe tition 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, wa s a categorical match

, treat ing 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 Lario s ’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 juris diction over7 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

, w e 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).

W e 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)

.8 A. The Modified Categorical Approach Applies

Here

Whe n a state conviction is subject to federal criminal or

immig ration 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 nec essarily .

. . 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 g eneric 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[]

. ” I

d. 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

w here 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 a9 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. a t 338

. T his modification serves “n ot 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 ” t o

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, t he 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 BIA10 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 ca using such

terror or inconvenience.

N.J. Stat. Ann. § 2C:12

- 3(a) (1981).

In view of t he 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. “ W he [ 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 alteration s in original)

(quoting Mathis

, 136 S. Ct. at 2256)

, and h ere, 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 [New11 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., “threaten s to commit a ny 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 terroriz e

another, ” (2) “to caus e 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 t he 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 diff erently, 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).12 elements, be a match with a generic federal crime.” Hillocks

, 934 F.3d at 339 ( internal quotation marks and citation omitte d)

. 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

convicte d 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)

,

c ourts 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 conf i rmed 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 ful l

, the

alternative offense that formed the basis for Larios’s

conviction is “ threat en[ing] to commit a ny crime of violence13 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

. T here 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 ] anot her. ” 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 o r a

corrupt mind” )

. The particular alternative offense of which14 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 16 3

, 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 d eemed a mens rea of recklessness

turpitudinous for both New Jersey’s seco nd

- degree aggravated

assault offense

, Baptiste v. Att’y Gen.

, 841 F.3d 601, 6 23

(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 62 2 ;

Knapik , 384 F.3d at 90

. Although the se statutes required a

mens rea of only recklessness, the two aggravating factors

ensured t he least culpabl e 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 co ntrast, 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

, ” i d. at 174

. Focusing on the “least culpable15 conduct,” we concluded that t raffic offen ses “do[] not

imp licate moral turpitude.” Id. at 172.

Here, t he 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

Kn ap ik target ed conduct that risk s 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 require d 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.

T he Government contends otherwise, point ing us to two

purported statutory aggravating facto rs. In addition to the

required mental state of “purpose” or “ reckless disregard,” the

G overnment argues, there must both be a “threat” and “ a crime

of violence” that is the subject of that threat. Resp’t Br. 25

(inte rnal quo tation marks omitted). 3 T he 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.

25.16 As to the first factor

, t he G overnment reads into the lone

word “ threat” an “additional, intentional ‘layer’ to the mens rea requirement” because it “ suggests that the perpetrator must

in itially 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

, i d. at 170 (alteration in

original) (quoting 18 Pa. Cons. Stat. § 2706), and d id not carry

its own implicit mens rea

, independent of that specified in the

statute

. W e reaffirm that holding here : W here 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.’” I

d. (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.17 The Government’s second factor fares no better

. A lthough 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 “tampe r[ing] with tangible property of another so as

to endanger person or property” and caus ing “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, t hreats to

engage in th is 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 in18 90 ; s ee

, 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 ).

T he 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 . I n

support, it c ites 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: W e 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 proba bility 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

.19 conviction for non

- turpitudinous conduct, however remote,” a s

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

facto rs

, so t he least culpable conduct is a reckless threat to

commit a violent property crime

, which under Baptiste

, Knapik

, and Mahn

, is not turpitudinous. Lario s ’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 I n any event, the Supreme Court has approved a

realistic

- probability analysis only where “the r elevant elements

[for both the state statute and the generic offense] were

identical,” Singh

, 839 F.3d at 2 86 n.10 (discussing Moncrieffe

v. Holder

, 569 U.S. 184 (2013), and Gonzales v. Duenas

Alvarez

, 549 U.S. 183 (2007)) ; Cabeda

, 971 F. 3 d 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 identic al 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”).20 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.