In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1797 

JUAN CARLOS GARCIA-MARTINEZ, 

Petitioner, 

v.

WILLIAM P. BARR, Attorney General of the United States, 

Respondent. 

____________________ 

Petition for Review of an Order of the 

Board of Immigration Appeals 

No. A206-274-310 

____________________ 

ARGUED OCTOBER 26, 2018 — DECIDED APRIL 16, 2019 

____________________ 

Before WOOD, Chief Judge, and SYKES and SCUDDER, Circuit 

Judges. 

WOOD, Chief Judge. The task of identifying a “crime involving moral turpitude” has vexed courts and agencies for decades, if not centuries. “Moral turpitude” tends to be defined 

very broadly. So, for example, one reads in Black’s Law Dictionary (10th ed. 2014), that it is “[c]onduct that is contrary to 

justice, honesty, or morality; esp., an act that demonstrates depravity.” Webster’s Third New International Dictionary 
2 No. 18-1797 

defines it as “1: an act or behavior that gravely violates the 

moral sentiment or accepted moral standards of the community; esp.: sexual immorality ... ; 2: the morally culpable quality held to be present in some criminal offenses as distinguished from others ... .” The Board of Immigration Appeals 

offers this: “The term ‘moral turpitude’ generally refers to 

conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed 

between persons or to society in general.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016) (Silva-Trevino III). Each 

of those definitions leaves a lot of work to be done when particular crimes or specific acts must be characterized. 

Nonetheless, there is a rough consensus that the phrase is 

more than an epithet. The Supreme Court has held that crimes 

involving fraud, for example, almost always involve moral 

turpitude. Jordan v. DeGeorge, 341 U.S. 223, 232 (1951). By contrast, there is near universal agreement that simple assault is 

not such a crime. See, e.g., In re Solon, 24 I. & N. Dec. 239, 241 

(BIA 2007). But when, as in the present case, the court must 

use a categorical approach for classifying crimes, and only 

some of the conduct covered by a statute appears to be sufficiently vile, base, immoral, or depraved to deserve the label 

moral turpitude, it is hard to be sure when or whether the line 

from ordinary culpability to moral turpitude has been 

crossed. 

A great deal can hang on the proper characterization of an 

offense, as the case now before us illustrates. In 1998 Juan Carlos Garcia-Martinez pleaded guilty to assault with a deadly 

weapon in violation of New Jersey law. See N.J.S.A. § 2C:12-

1(b)(2). The question here is how that crime affects his immigration status. The Board of Immigration Appeals (the Board) 
No. 18-1797 3

has found in the past that “assault with a deadly weapon” is 

a crime of moral turpitude that makes a noncitizen ineligible 

for cancellation of removal. See Matter of Logan, 17 I. & N. Dec. 

367, 369 (BIA 1980); 8 U.S.C. § 1229b(b)(1)(C); see also Pereira 

v. Sessions, 138 S. Ct. 2105, 2110 n.1 (2018) (“The Court uses 

the term ‘noncitizen’ throughout this opinion to refer to any 

person who is not a citizen or national of the United States.”). 

But we now know from Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), 

that the Board must approach this as a categorical inquiry, not 

one based on the facts of an individual case. We must therefore consider whether the crime New Jersey has labeled “assault with a deadly weapon” covers only conduct that is 

properly classified as a crime of moral turpitude, or if on the 

other hand it sweeps in factual scenarios that are akin to simple assault. If the latter is true, as Garcia-Martinez contends, 

his crime of conviction is not categorically one of moral turpitude. The Board found that there was no realistic probability 

that the New Jersey law could be applied to conduct outside 

the scope of the generic crime. It therefore concluded that 

Garcia-Martinez’s earlier conviction was for a crime involving 

moral turpitude. 

On Garcia-Martinez’s petition for review, we conclude 

that the Board committed several legal errors that may have 

affected its decision. We thus grant the petition and remand 

for further proceedings. 

I 

Petitioner Garcia-Martinez, who also has gone under the 

name Andres Garcia-Martinez, lacks lawful status in the 

United States. The Department of Homeland Security has 

charged him as removable on two bases: first, for being present in the United States without being admitted or paroled, 
4 No. 18-1797 

see 8 U.S.C. § 1182(a)(6)(A)(i); and second, for having been 

convicted of a crime involving moral turpitude, see 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I). The two grounds carry significantly different consequences. Presence without being admitted or paroled—which Garcia-Martinez admits applies to him—is the 

less severe of the two. Under that ground, he may qualify for 

discretionary cancellation of removal. See 8 U.S.C. § 1229b(a). 

That is not possible if the Board correctly found that he has a 

conviction for a crime of moral turpitude on his record. 

Should the latter be true, he would be barred from cancellation of removal and adjustment of status. See 8 U.S.C. 

§ 1229b(b)(1)(C). Given Garcia-Martinez’s concession, the 

only question before us is whether the Board correctly found 

that the New Jersey crime was one of moral turpitude. 

Some of the circumstances surrounding Garcia-Martinez’s 

conviction are uncontested. In 1998, he pleaded guilty in New 

Jersey to a state charge of assault with a deadly weapon. According to his plea colloquy, Garcia-Martinez’s role in the assault was minor: he stuck out his foot in order to trip the victim. Once the victim was on the ground, Garcia-Martinez’s 

friends “jumped on [the victim] and started hitting him” and 

“some of [Garcia-Martinez’s] friends punched [the victim], 

kicked him and struck him.” Garcia-Martinez stood by while 

his friends carried out their assault; he soon left the scene. The 

New Jersey prosecutor and judge accepted this recitation of 

the facts as sufficient to convict Garcia-Martinez as both a 

principal and an accomplice. Neither the prosecutor nor the 

judge asked about the level of force used by any of the assailants, any weapons used other than fists and feet, or the 

amount of harm the victim suffered. 
No. 18-1797 5

At Garcia-Martinez’s hearing before the Immigration 

Judge (IJ), no one suggested that this account of his conviction 

was incomplete. Instead, both the lawyer from the Department of Homeland Security and Garcia-Martinez focused on 

whether a New Jersey conviction for assault with a deadly 

weapon is a crime of moral turpitude when the deadly 

weapon at issue is the perpetrator’s hands or feet—specifically the foot Garcia-Martinez used to trip his victim. The IJ, 

later affirmed by the Board, did not decide whether the foot 

for this purpose was deadly. Yet at the same time, both the IJ 

and the Board found that the record of Garcia-Martinez’s 

crime did not foreclose the possibility that his accomplices 

used some traditional deadly weapon during the commission 

of the offense. Relying on that speculation, the Board ruled 

that there was no realistic probability that New Jersey’s crime 

of assault with a deadly weapon would sweep in conduct beyond the scope of a crime of moral turpitude. On that basis, it 

concluded that Garcia-Martinez was removable on this 

ground and thus not eligible for cancellation of removal. 

II 

 There are several problems with the BIA’s resolution of 

Garcia-Martinez’s petition. First, the BIA has never defined 

what it considers a “deadly weapon” in the context of a crime 

involving moral turpitude. Second, the record is devoid of evidence that might support the BIA’s idea that Garcia-Martinez’s accomplices used any conventional weapon—a supposition that appears to have been central to the Board’s decision. Third, the BIA misconstrued Garcia-Martinez’s argument regarding the factual basis for his plea and decided his 

case based on an argument first raised outside of the adversarial process. 
6 No. 18-1797 

A 

Before addressing the merits, we must clarify the standard 

of review that applies here. It is important for this purpose to 

distinguish between a party’s burden to raise a point 

(whether legal or factual) before the Board, and a party’s burden of persuasion. Legal issues, including the characterization of a crime as one of moral turpitude, receive plenary review in this court. In order properly to exhaust his remedies, 

a petitioner has the burden of raising that legal point before 

the Board, see 8 U.S.C. § 1252(d)(1), but both the Board and 

this court then decide the question as a matter of law. For factual questions, the petitioner bears the burden of production 

and persuasion. 

While these rules are well established, their application became confused for a time as a result of the Board’s decision in 

Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (SilvaTrevino I). Silva-Trevino I established a three-part test for determining when a person has been convicted of a crime of 

moral turpitude. That test first required the immigration 

judge to “determine whether there is a realistic probability, 

not a theoretical possibility, that a State or Federal criminal 

statute [of conviction] would be applied to reach conduct that 

does not involve moral turpitude.” Id. at 698 (internal quotations omitted). If that categorical analysis did not resolve the 

inquiry, the judge was instructed to proceed to step two, under which the judge would take a “modified categorical” approach and “examine whether the alien’s record of conviction—including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and 

the plea transcript—evidence[d] a crime that in fact involved 

moral turpitude.” Id. at 690. Finally, if the record of conviction 
No. 18-1797 7

was also inconclusive, Silva-Trevino I instructed the IJ to “consider evidence beyond the formal record of conviction.” Id. 

Critically, step three of the Silva-Trevino I framework, and 

probably part of step two (insofar as it required the IJ to make 

a determination about the particular facts of the conviction) 

put a burden of producing historical facts on the noncitizen. 

See id. at 703 n.4. Silva-Trevino I was still the Board’s last authoritative word at the time when this court decided cases 

such as Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014), and 

Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014). In both 

of those decisions, we recognized that the Board was using an 

individualized inquiry. See Sanchez, 757 F.3d at 718; CanoOyarzabal, 774 F.3d at 917 (applying Silva-Trevino I and looking at “evidence beyond the formal record of conviction” to 

“discern the nature of the underlying conviction”). Step three 

of the Silva-Trevino I framework invites the submission of 

facts related to the conviction. As with all facts, it was the 

noncitizen’s burden to find and present that evidence. 

But Silva-Trevino I is no longer the law. The Board revisited 

this very case in Silva-Trevino III, supra, after the Attorney 

General directed it to develop “a uniform standard for determining whether a particular criminal offense is a crime involving moral turpitude.” 26 I. & N. at 826, citing Matter of 

Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (remand order)

(Silva-Trevino II). In carrying out the Attorney General’s instruction, the Board was guided by the Supreme Court’s decisions in Moncrieffe v. Holder, 569 U.S. 184 (2013); Gonzales v. 

Duenas-Alvarez, 549 U.S. 183 (2007); Shepard v. United States, 

544 U.S. 13 (2005); and Taylor v. United States, 495 U.S. 575 

(1990). Those decisions collectively spell out the Court’s categorical and modified categorical methodology for 
8 No. 18-1797 

characterizing a statute of conviction, and they demonstrate 

that the Court has required this approach for immigration 

cases. 

Following the model established in Moncrieffe, the Board 

announced in Silva-Trevino III that it would apply the “realistic probability” test to the crime of conviction to see if it fits 

within the generic definition of a crime involving moral turpitude. Silva-Trevino III, 26 I. & N. Dec. at 831. That test, it explained, “requires us to focus on the minimum conduct that 

has a realistic probability of being prosecuted under the statute of conviction, rather than on the facts underlying the respondent’s particular violation of that statute.” Id. The Board 

continued with these remarks: 

In cases where the statute of conviction includes 

some crimes that involve moral turpitude and 

some that do not, adjudicators must determine 

if the statute is divisible and thus susceptible to 

a modified categorical approach. Under such an 

analysis, resort to the record of conviction is 

permitted to identify the statutory provision 

that the respondent was convicted of violating. 

See Descamps, 133 S. Ct. at 2281, 2283 ... . A criminal statute is divisible so as to warrant a modified categorical approach only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to 

disjunctive sets of “elements,” more than one 

combination of which could support a conviction and (2) at least one, but not all, of those 

listed offenses or combinations of disjunctive 
No. 18-1797 9

elements is a categorical match to the relevant 

generic standard. 

Id. at 833. Notably, Silva-Trevino III dropped the third part of 

the Silva-Trevino I test, which was the part that gave the 

noncitizen the opportunity to introduce additional facts about 

the conduct giving rise to the crime of conviction. It left intact 

the noncitizen’s burden to direct the Board’s attention to a 

case (either his own or other cases) showing that the statute 

of conviction applies to conduct outside the scope of the generic offense. 

It is true that a “crime of moral turpitude” is an odd match 

for the categorical approach. The moral turpitude label refers 

to a particular quality of conduct, as opposed to an act that 

can be broken into specific elements. But the Board has addressed this problem by defining various generic crimes that 

do have specific elements as either categorically evincing 

moral turpitude or not. For example, the Board here compared its generic definition of an aggravated assault to New 

Jersey’s crime of assault with a deadly weapon. Both Chevron 

deference and the soundness of the Board’s reasoning in SilvaTrevino III thus lead us to adopt that framework for characterizing crimes of moral turpitude in immigration cases. 

Garcia-Martinez has pointed to his own case to show that 

the New Jersey statute under which he was convicted covers 

conduct beyond generic assault with a deadly weapon. We 

examine that showing, as well as the central legal question 

whether his crime of conviction was one of moral turpitude. 

See Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 979 (7th Cir. 

2016) (describing whether the petitioner’s crime was one of 

moral turpitude as the “underlying question of law” in the 

case). Courts and agencies decide questions of law 
10 No. 18-1797 

independent of any burdens of proof imposed on the litigants. 

Parks v. Ross, 52 U.S. 362, 373 (1850) (“It is undoubtedly the 

peculiar province ... of the court to determine all questions of 

law arising thereon.”). As applied here, the question whether 

the New Jersey law categorically describes a crime of moral 

turpitude is for the court to decide. See, e.g., Mata-Guerrero v. 

Holder, 627 F.3d 256, 259 (7th Cir. 2010) (“[T]he classification 

of a crime as one of moral turpitude is a question of law ....”); 

see also Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (explaining that the categorical approach “focus[es] on the legal question of what a conviction necessarily established”). 

B 

Garcia-Martinez was convicted under New Jersey’s general assault statute, N.J.S.A. § 2C:12-1. That statute covers assaults of all kinds, from simple assault, § 2C:12-1(a), to aggravated assault, § 2C:12-1(b), to assault with an auto or vessel, 

§ 2C:12-1(c), to others. There is no dispute that Garcia-Martinez’s offense was “aggravated assault,” as New Jersey defines it in § 2C:12-1(b), which reads as follows in pertinent 

part: 

A person is guilty of aggravated assault if he: ... 

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a 

deadly weapon; ... . 

N.J.S.A. § 2C:12-1b(2). Elsewhere, the New Jersey statute provides definitions of the terms used in chapter 12 (among others). There we find the relevant definition of “deadly 

weapon”: 

“Deadly weapon” means any firearm or other 

weapon, device, instrument, material or 
No. 18-1797 11

substance, whether animate or inanimate, 

which in the manner it is used or is intended to 

be used, is known to be capable of producing 

death or serious bodily injury or which in the 

manner it is fashioned would lead the victim 

reasonably to believe it to be capable of producing death or serious bodily injury ... . 

N.J.S.A. § 2C:11-1(c). 

Taken together, New Jersey’s law forbidding aggravated 

assault and its definition of “deadly weapon” fit comfortably 

within the scope of the Board’s definition of a morally turpitudinous generic aggravated assault. Furthermore, the 

Board’s holding that, “since the respondent’s offense requires 

a knowing or purposeful mens rea, the use of a deadly 

weapon, and that the victim suffered bodily harm, it is categorically a crime of moral turpitude,” is a reasonable application of the latter term. Garcia-Martinez does not contest this 

point. 

But that is not the end of the inquiry. A law that appears 

to fit the generic offense on its face might cover conduct that 

does not exhibit moral turpitude. See, e.g., Silva-Trevino III, 26 

I. & N. Dec. at 833–36 & n.10 (holding that Texas’s indecencywith-a-child statute did not categorically involve moral turpitude under the realistic probability test, because Texas courts 

did not interpret it to require “knowledge that the victim was 

a minor”). If the New Jersey statute as applied covers more 

conduct, or different conduct, than the generic crime, then it 

is not a categorical match. In making that determination, the 

Board is entitled to look at the language of the statute, at New 

Jersey decisions applying the statute, and at the official record 

of the petitioner’s own predicate conviction (i.e. the 
12 No. 18-1797 

indictment, the record of any guilty plea, and the other Shepard materials). Those materials will shed light on the breadth 

of the New Jersey offense. But, as Leocal indicated, the Board 

may not explore whether the underlying facts of the specific 

case before it meet the generic definition. 543 U.S. at 7 (“This 

language requires us to look to the elements and the nature of 

the offense of conviction, rather than to the particular facts relating to petitioner’s crime.”). 

We review de novo the BIA’s legal conclusion that GarciaMartinez’s statute of conviction as applied remains a match 

for the generic crime. Kiorkis v. Holder, 634 F.3d 924, 928 (7th 

Cir. 2011). The Supreme Court has instructed that, in conducting that inquiry, a court must find: 

a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a 

crime. To show that realistic probability, an offender, of course, may show that the statute was 

so applied in his own case. But he must at least 

point to his own case or other cases in which the 

state courts in fact did apply the statute in the 

special (nongeneric) manner for which he argues. 

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). For this 

purpose, Garcia-Martinez is relying on the facts of his own 

conviction. 

C 

As we noted at the outset, both the Board and this court 

have described a crime involving moral turpitude as “conduct 

that shocks the public conscience as being inherently base, 
No. 18-1797 13

vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir. 2014) (quoting Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009)) 

(internal quotation marks omitted); Silva-Trevino III, 26 I. & N. 

Dec. at 833. With that definition in mind, the Board should 

have asked whether the minimum (hypothetical) conduct for 

which there is a realistic probability of prosecution under the 

statute being considered reflects the necessary degree of depravity. Silva-Trevino III, 26 I. & N. Dec. at 831. If the crime of 

conviction can apply to both conduct involving moral turpitude and conduct that does not meet that standard, then it is 

not categorically a crime involving moral turpitude. Id. at 

830–31. A conviction under such a statute thus would not 

make a petitioner inadmissible under 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I). (Some statutes are divisible and thus subject to a modified categorical analysis, see Mathis v. United 

States, 136 S. Ct. 2243, 2249 (2016), but both parties agree that 

the aggravated-assault subsection of N.J.S.A. § 2C:12-1b cannot be divided up any further.) 

In Garcia-Martinez’s case, the Board strayed from this 

“minimum conduct” and “reasonable probability” inquiry. 

Instead of accepting the facts as set forth in the state-court record of conviction, the Board speculated that one of GarciaMartinez’s accomplices may have possessed a traditional 

deadly weapon. It also observed that Garcia-Martinez had not 

identified for it “another [New Jersey] case that was prosecuted even though the weapon was not sufficiently ‘deadly’ 

to involve turpitude” (emphasis added). The latter statement 

is troublesome for two reasons. First, if the permissible evidence shows that Garcia-Martinez’s own conviction was for 

conduct outside the scope of generic assault with a deadly 
14 No. 18-1797 

weapon, that is enough to show that the minimum conduct 

that has a realistic probability of being prosecuted does not 

reflect moral turpitude—Garcia-Martinez was, after all, prosecuted for it, and so there was nothing hypothetical about the 

risk. Second, it implies that the Board has in mind a range of 

deadliness for weapons, and that only after some threshold is 

crossed will the crime of assault with that weapon become 

one of moral turpitude. Yet the Board did not explain where 

that line is drawn, nor did it acknowledge that the use of a 

foot to trip someone might represent the minimum conduct 

needed for a conviction under New Jersey’s law. Perhaps the 

Board has not seen the need for greater precision in its earlier 

cases, because in those instances the weapons have fit well 

within the common-sense core of the “deadly weapon” label. 

But even a brief review of state and federal cases shows that 

the line that defines what counts as a deadly weapon can be 

drawn in many places. Given the Board’s longstanding position that simple assault is not a crime of moral turpitude, see, 

e.g., Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989), a 

“deadly weapon” conviction in some states may fall on the 

“non-turpitudinous” side of the line. 

For all the record of conviction here shows, the only weapons anyone had in the fracas leading to Garcia-Martinez’s earlier conviction were body parts: hands, fingers, feet. Body 

parts are sometimes, but not always, considered to be deadly 

weapons. Cases so holding include State v. Allen, 193 N.C. 

App. 375 (2008) (hands); State v. Bennett, 328 S.C. 251 (1997) 

(hands and fists); People v. Ross, 831 P.2d 1310 (Colo. 1992) 

(fists); and Pulliam v. State, 298 So.2d 711 (Miss. 1974) (hands 

and feet). In other instances, courts have declined to characterize body parts as deadly or dangerous weapons. See People 

v. Aguilar, 16 Cal.4th 1023, 1034 (1997) (hands and feet cannot 
No. 18-1797 15

be deadly weapons); United States v. Rocha, 598 F.3d 1144, 1157 

(9th Cir. 2010) (hands and feet not deadly or dangerous weapons). Some of the latter courts do allow a finding that a tennis 

shoe on an assailant’s foot, which is then used to kick a victim, 

is a deadly weapon. United States v. Swallow, 891 F.3d 1203, 

1205 (9th Cir. 2018) (tennis shoes qualify as dangerous 

weapon because they were “undoubtedly used ... to augment 

the force” of kicks); United States v. Steele, 550 F.3d 693, 699 

(8th Cir. 2008) (kicking victim in torso with tennis shoes). Still 

other cases have considered teeth to be deadly weapons when 

used to bite a victim, though these cases often had the threat 

of HIV transmission lurking in the background. See, e.g., 

United States v. Sturgis, 48 F.3d 784 (4th Cir. 1995). New Jersey, 

the state of Garcia-Martinez’s conviction, has its own quirks. 

There, placing a hand in a pocket so as to make a victim believe it is a gun counts as the use of a deadly weapon. See State 

v. Hutson, 107 N.J. 222, 226–28 (1987). 

The Board left most of this unexplored. It did not explain 

why Garcia-Martinez’s act of sticking his leg out to trip the 

victim was an act of moral turpitude, thus making his offense 

fall within the generic crime of assault with a deadly 

weapon—if that is indeed what it decided (also unclear). To 

the extent the Board was relying on accomplice liability, it did 

not explain whether its decision rested only on the assumption that the actual assailants were using their fists, or also on 

the unsupported speculation that they were holding some 

other unspecified weapon that the New Jersey judge thought 

unimportant enough not to address. This is pertinent, we 

stress, only for the light it sheds on the scope of the New Jersey statute. New Jersey is free to convict people under any of 

these theories or factual assumptions, but if its statute sweeps 

in the use of a leg to trip someone (something that has 
16 No. 18-1797 

probably happened in every elementary school in the country 

at one time or another), then the question is whether that conduct matches the generic definition of use of a deadly weapon 

in a way that involves moral turpitude, or if instead it is too 

broad for the New Jersey conviction to be used for immigration purposes. 

The Board did not explain why the generic definition of 

assault with a deadly weapon includes tripping. If that omission was because it was not relying on the use of the foot to 

trip and instead was looking at Garcia-Martinez’s accomplices, we have a different problem: there is no record evidence (i.e. evidence satisfying the Shepard criteria, as required 

by Silva-Trevino III) that they used anything but their own fists 

and feet. The Board’s musings that the actual assailants may 

have had other weapons are no substitute for evidence. And 

absent some evidence of a traditional deadly weapon before 

the state court, Garcia-Martinez’s conviction could not have 

“‘necessarily’ rested” on the existence of such a weapon. Shepard, 544 U.S. at 21. Moreover, the Board did not explain why 

the accomplices’ known behavior falls within the generic definition of the offense of conviction. Its failure to explore these 

points cannot be dismissed as harmless error. The process 

works only if the Board, using the categorical approach, slogs 

through each statute and decides whether it categorically 

stays within the boundaries of a crime of moral turpitude for 

purposes of section 1182(a)(2)(A)(i)(I), or if it encompasses additional behavior that does not so qualify. 

Garcia-Martinez was sentenced to time served for his plea 

to assault with a deadly weapon. Had he known that the 

Board would consider this statute of conviction categorically 

to involve moral turpitude—even though he insists that his 
No. 18-1797 17

only act was to trip his victim—he may have gone to trial, or 

he may have pleaded guilty to a different statutory violation 

calling for additional incarceration but less serious immigration consequences. See Mellouli, 135 S. Ct. at 1987 (describing 

“safe harbor” guilty pleas that shield defendants from immigration consequences). Defendants, their attorneys, and prosecutors must constantly negotiate this balancing act among 

trial, criminal punishment, and immigration consequences. 

See Lafler v. Cooper, 566 U.S. 156, 169 (2012) (“[C]riminal justice 

today is for the most part a system of pleas, not a system of 

trials. Ninety-seven percent of federal convictions and ninetyfour percent of state convictions are the result of guilty 

pleas.”). It is incumbent on courts and agencies to establish 

rules and standards that allow each of these actors to appreciate the full consequences of their choices. See Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (explaining that providing 

“fair notice” of the criminal consequences of an individual’s 

actions is at the core of the due process guarantee); Padilla v. 

Kentucky, 559 U.S. 356 (2010) (requiring effective counsel to 

advise defendants of the immigration consequences of a 

guilty plea). 

Garcia-Martinez cannot go back in time and renegotiate 

his plea in response to whatever definition of “deadly 

weapon” the Board now adopts. But both he and this court 

are entitled to know why the Board characterized his New 

Jersey offense as it did. Because we cannot tell on this record, 

we must return this case to the Board for further proceedings. 

D 

To the extent that it may be relevant, we note as well that 

the Board seems to have misconstrued what Garcia-Martinez 

is saying about the factual basis for his conviction. Garcia-
18 No. 18-1797 

Martinez argued that his plea colloquy contained the entire 

factual basis for his conviction. The Board understood him to 

be saying that the plea colloquy was inconclusive on the question whether his accomplices possessed some unidentified 

traditional deadly weapon. It then stated that any factual ambiguity about whether the record established the type of 

weapon(s) Garcia-Martinez’s accomplices were or were not 

using was to be construed against him because “he bears the 

burden of establishing his eligibility for relief,” citing 8 U.S.C. 

§ 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d). It is true that for 

the case as a whole, Garcia-Martinez had the burden of producing whatever facts were pertinent to his application for 

cancellation of removal. Cf. Lopez-Esparza v. Holder, 770 F.3d 

606, 607 (7th Cir. 2014) (noting that under the same regulations as are applicable here, petitioner bears burden of proving the factual contention that he had been continuously present in the United States for ten years). But now that Silva-Trevino III has replaced Silva-Trevino I, the question whether the 

crime of conviction is one of moral turpitude does not turn on 

the particular facts underlying the conviction. Garcia-Martinez was entitled to show the Board the record on which the 

New Jersey courts actually relied; that record shows that he 

was convicted without any further fact-finding about the nature of the accomplices’ weapons. The only task left for the 

Board was to decide as a matter of law how the New Jersey 

statute maps onto the generic offense of assault with a deadly 

weapon. 

The Board failed to explain why Garcia-Martinez failed to 

meet his burden of showing applications of New Jersey law 

that went beyond the generic offense. It seemingly rested this 

conclusion on its belief that all parties agreed that GarciaMartinez’s plea colloquy was ambiguous. That is not accurate. 
No. 18-1797 19

In fact, the argument that the factual basis for Garcia-Martinez’s plea was incomplete or inconclusive came as a surprise 

to everyone: rather than coming from the DHS attorney, it 

originated with the IJ at the hearing. Garcia-Martinez has contended throughout these proceedings that his state plea colloquy, which is in the record, laid out all of the facts relevant to 

his conviction. The DHS attorney at his initial hearing did not 

suggest otherwise. And Garcia-Martinez’s argument comports with the Supreme Court’s instructions to present a transcript of a plea colloquy to establish the facts of a pleaded conviction for the categorical inquiry. See Shepard, 544 U.S. at 20–

21 (“[I]n pleaded cases the [relevant documents] would be the 

statement of factual basis for the charge ... shown by a transcript of plea colloquy .... With such material in a pleaded 

case, a later court could generally tell whether the plea had 

‘necessarily’ rested on the fact identifying the [crime] as generic.”). Additionally, the New Jersey Supreme Court requires courts to establish a factual basis before accepting a 

guilty plea, and the state court accepting Garcia-Martinez’s 

conviction said nothing about the need to establish the existence of a traditional deadly weapon. See State v. Lipa, 219 N.J. 

323, 331 (2014) (citing State v. Crawley, 149 N.J. 310, 318 (1997)) 

(“Before a court can accept a defendant’s guilty plea, it first 

must be convinced that [ ] the defendant has provided an adequate factual basis for the plea ....”). 

Last, the Board did not explain why, given the abrupt way 

in which the IJ found factual ambiguity, it nevertheless upheld the IJ’s decision to rule against Garcia-Martinez without 

offering him the opportunity to respond. It appears to us that 

Garcia-Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey’s assault with a 
20 No. 18-1797 

deadly weapon statute is closer to generic simple assault, and 

thus not a crime of moral turpitude, or stays within the 

boundaries of generic assault with a deadly weapon, and thus 

reflects moral turpitude. On remand if the BIA is concerned 

about the completeness of Garcia-Martinez’s Shepard documents, it should explain that view and Garcia-Martinez 

should be given the opportunity to present any necessary additional materials. 

III 

We GRANT the petition for review and REMAND the case 

to the Board of Immigration Appeals for further proceedings 

consistent with this opinion.