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)
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

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 
3

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.
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 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 
5

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
6

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
7

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).
8

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 JeanLouis 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 
9

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
10

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 
11

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).
12

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 
13

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 usis 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
14

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
15

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. 
16

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.
17

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
18

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 JeanLouis, 582 F.3d at 471–73. Cf. Cabeda v. Att’y Gen., 971 F.3d

165, 175–76 (3d Cir. 2020) (declining to apply realisticprobability 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. 
19

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. DuenasAlvarez, 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”).
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.