### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-1797 J UAN C ARLOS G ARCIA -M ARTINEZ , Petitioner,

v.

W ILLIAM P. B ARR, Attorney General of the United States, Respondent

.

____________________

Petition for Review of an Order of the Board of Immigration Appeals No. A206-274-310

____________________

A RGUED O CTOBER 26, 2018

— D ECIDED A PRIL 16, 2019

____________________

Before W OOD , Chief Judge, and S YKES and S CUDDER , Circuit Judges

. W OOD , 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 de fi nedvery 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 N ew International Dictionary2 No. 18-1797

de fi nes 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 o ff enses as distinguished from others ... .” The Board of Immigration Appeals

o ff ers this: “The term ‘moral tu rpitude’ generally refers toconduct 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.” Ma tt er of Silva-Trevino , 26 I. & N. Dec. 826, 833 (BIA 2016) ( Silva-Trevino III). Each of those de fi nitions leaves a lot of work to be done when particular crimes or speci fi c acts must be characterized. Nonetheless, there is a rough consensus that the phrase is more than an epithet. The Supr eme 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 ag reement 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 su ffi

ciently vile, base, immoral, or depraved to deserve the label moral turpitude, it is hard to be sure when or whether the line from ordinary culpability to moral turpitude has been crossed. A great deal can hang on the proper characterization of an

o ff ense, 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 he re is how that crime a ff ects his immigration status. The Board of Immigration Appeals (the Board)No. 18-1797 3

has found in the past that “assa ult with a deadly weapon” is a crime of moral turpitude that makes a noncitizen ineligible for cancellation of removal. See Ma tt er 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’ throughoutthis 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 in dividual case. We must therefore consider whether the crim e New Jersey has labeled “assault with a deadly weapon” covers only conduct that is properly classi fi ed 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 la tt er 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 convic tion was for a crime involving moral turpitude. On Garcia-Martinez’s petition for review, we conclude that the Board commi tt ed several legal errors that may have

a ff ected 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: fi rst, for being present in the United States without being admi tt ed 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 signi fi cantly different consequences. Presence without being admi tt ed or paroled—which Garcia-Martinez admits applies to him—is the less severe of the two. Under th at 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 la tt er 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 wh ether 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 NewJersey 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 hi tt ing him” and “some of [Garcia-Martinez’s] fr iends 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 su ffi cient to convict Garcia-Martinez as both a principal and an accomplice. Neither the prosecutor nor the judge asked about the level of fo rce used by any of the assailants, any weapons used other than fi sts and feet, or the amount of harm the victim su ff ered.No. 18-1797 5

At Garcia-Martinez’s hearing before the Immigration Judge (IJ), no one suggested that this account of his convictionwas incomplete. Instead, both the lawyer from the Department of Homeland Security an d Garcia-Martinez focused on whether a New Jersey convictionfor assault with a deadly weapon is a crime of moral turpitude when the deadly weapon at issue is the perpetrator’s hands or feet—speci fi

cally the foot Garcia-Martinez used to trip his victim. The IJ, later a ffi rmed 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 o ff ense. Relying on that speculation, the Board ruled that there was no realistic prob ability that New Jersey’s crimeof 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 wi th the BIA’s resolution of Garcia-Martinez’s petition. First, the BIA has never de fi ned 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 th e BIA’s idea that Garcia-Martinez’s accomplices used any conventional weapon—a supposition that appears to have b een central to the Board’s decision. Third, the BIA miscons trued Garcia-Martinez’s argument regarding the factual basis for his plea and decided his case based on an argument fi rst 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 pr operly 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 ma tt er 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 Ma tt er 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 b een convicted of a crime of moral turpitude. That test fi rst 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 omi tt ed). If that categorical analysis did not resolve theinquiry, the judge was instructed to proceed to step two, under which the judge would take a “modi fi ed categorical” approach and “examine whether the alien’s record of conviction—including documents such as the indictment, the judgment of conviction, jury instru ctions, 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 convictionNo. 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 unde rlying 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 fi nd 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 A tt orney General directed it to develo p “a uniform standard for determining whether a particular criminal o ff ense is a crime involving moral turpitude.” 26 I. & N. at 826, citing Ma tt er of Silva-Trevino , 26 I. & N. Dec. 550 (A.G. 2015) (remand order) ( Silva-Trevino II). In carrying out the A tt orney General’s instruction, the Board was guided by the Supreme Court’s decisions in Moncrie ff

e 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 modi fi ed categorical methodology for8 No. 18-1797

characterizing a statute of conviction, and they demonstrate that the Court has required th is approach for immigration

cases. Following the model established in Moncrie ff

e, the Board announced in Silva-Trevino III that it would apply the “realistic probability” test to the crime of conviction to see if it fi ts within the generic de fi nition of a crime involving moral turpitude. Silva-Trevino III , 26 I. & N. Dec

. at 831. That test, it explained, “requires us to focu s on the minimum conduct thathas a realistic probability of being prosecuted under the statute of conviction, rather than onthe facts underlying the respondent’s particular viol ation of that statute.” Id. The Board continued with these remarks:

In cases where the statute of conviction includes some crimes that invo lve moral turpitude and some that do not, adjudicators must determine if the statute is divisible and thus susceptible to a modi fi ed categorical approach. Under such an analysis, resort to the record of conviction is permi tt ed 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 modifi ed categorical approach only if (1) it lists multiple discrete o ff enses as enumerated alternatives or de fi nes a single o ff ense by reference to disjunctive sets of “elements,” more than onecombination of which could support a conviction and (2) at least one, but not all, of those listed o ff enses or combinations of disjunctiveNo. 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 a tt ention to a case (either his own or other ca ses) showing that the statuteof conviction applies to conduct outside the scope of the generic o ff ense. 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 speci fi c elements. But the Board has addressed this problem by de fi ning various generic crimes that do have speci fi c elements as either categorically evincingmoral turpitude or not. For example, the Board here compared its generic de fi nition 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 convictionwas 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 law10 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 app lied 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 classi fi cation of a crime as one of moral turp itude 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 necessarilyestablished”).

BGarcia-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 a ssault with an auto or vessel,§ 2C:12-1(c), to others. There is no dispute that Garcia-Martinez’s o ff ense was “aggravated assault,” as New Jersey defi nes it in § 2C:12-1(b), which re ads as follows in pertinent part: A person is guilty of aggravated assault if he: ... (2) A tt empts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; ... . N.J.S.A. § 2C:12-1b(2). Elsewher e, the New Jersey statute provides de fi nitions of the terms used in chapter 12 (among others). There we fi nd the relevant de fi nition of “deadly weapon”: “Deadly weapon” means any fi rearm or other weapon, device, instrument, material orNo. 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 victimreasonably 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 de fi nition of “deadly weapon” fi t comfortably within the scope of the Board’s de fi nition of a morally turpitudinous generic aggravated assault. Furthermore, the Board’s holding that, “since the respondent’s o ff ense requires a knowing or purposeful mens rea , the use of a deadly weapon, and that the victim su ffered bodily harm, it is categorically a crime of moral turpitude,” is a reasonable application of the la tt er term. Garcia-Martinez does not contest this point. But that is not the end of the inquiry. A law that appears

to fi t the generic o ff ense on its face might cover conduct that does not exhibit moral turpitude. See, e.g. , Silva-Trevino III , 26I. & 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 st atute as applied covers more conduct, or di ff erent 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 o ffi cial record of the petitioner’s own predicate conviction ( i.e. the12 No. 18-1797

indictment, the record of any guilty plea, and the other Shepard materials). Those materials w ill shed light on the breadth of the New Jersey o ff ense. But, as Leocal indicated, the Board may not explore whether the underlying facts of the speci fi c case before it meet the generic de fi nition. 543 U.S. at 7 (“This language requires us to look to the elements and the nature of the o ff ense of conviction, rather thanto the particular facts relating to petitioner’s crime.”).

We review de novo the BIA’s legal conclusion that GarciaMartinez’s statute of convicti on 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 fi nd:a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic de fi nition of acrime. To show that realistic probability, an offender, of course, may sh ow 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 thespecial (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, bo th the Board and this court have described a crime involving moral turpitude as “conduct that shocks the public conscien ce 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 omi tt ed); Silva-Trevino III , 26 I. & N. Dec. at 833. With that de fi nition 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 re fl ects the necessary degree of depravity. Silva-Trevino III , 26 I. & N. Dec. at 831. If the crime ofconviction can apply to both conduct involving moral turpitude and conduct that does not m eet 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 statut es are divisible and thus subject to a modi fi ed categorical analysis, see Mathis v. United States , 136 S. Ct. 2243, 2249 (2016), but both parties agree thatthe 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 “reason able 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 identi fi ed for it “ another[New Jersey] case that was prosecuted even though the weapon was not su ffi ciently ‘deadly’ to involve turpitude” (emphasis added). The la tt er statement is troublesome for two reasons. First, if the permissible evidence shows that Garcia-Martin ez’s own conviction was for conduct outside the scope of generic assault with a deadly14 No. 18-1797

weapon, that is enough to show that the minimum conduct that has a realistic probability of being prosecuted does not

re fl ect 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 fi t 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 de fi nes what counts as a deadly weapon can bedrawn in many places. Given the Board’s longstanding position that simple assault is not a crime of moral turpitude, see, e.g. , Ma tt er 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 le ading to Garcia-Martinez’s earlier conviction were body parts: hands, fi ngers, 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. Benne tt, 328 S.C. 251 (1997) (hands and fi sts); People v. Ross , 831 P.2d 1310 (Colo. 1992) ( fi sts); and Pulliam v. State, 298 So.2d 711 (Miss. 1974) (handsand 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 cannotNo. 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 la tt er courts do allow a fi nding 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 lurkin g 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 tu rpitude, thus making his o ff ense 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 decisionrested only on the assumption that the actual assailants were using their fi sts, or also on the unsupported speculation that they were holding some other unspeci fi ed weapon that the New Jersey judge thought unimportant enough not to address. This is pertinent, we stress, only for the light it sh eds on the scope of the New Jersey statute. New Jersey is free to convict people under any of these theories or factual assump tions, but if its statute sweeps in the use of a leg to trip someone (something that has16 No. 18-1797

probably happened in every elementary school in the country at one time or another), then th e question is whether that conduct matches the generic de fi nition of use of a deadly weapon in a way that involves moral turpitude, or if instead it is toobroad for the New Jersey conviction to be used for immigration purposes. The Board did not expl ain why the generic de fi nition ofassault with a deadly weapon includes tripping. If that omission was because it was not rely ing on the use of the foot totrip and instead was looking at Garcia-Martinez’s accomplices, we have a di ff erent 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 fi sts 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 o ff ense 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 deci des 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—eventhough he insists that hisNo. 18-1797 17

only act was to trip his victim—he may have gone to trial, or he may have pleaded guilty to a di ff erent statutory violationcalling 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 a tt orneys, and prosecutors must constantly negotiate this balancing act among trial, criminal punishment, and immigration consequences. See La fl er v. Cooper, 566 U.S. 156, 169 (2012) (“[C]riminal justice today is for the most part a syst em of pleas, not a system oftrials. Ninety-seven percent of federal convictions and ninetyfour percent of state convicti ons are the result of guilty pleas.”). It is incumbent on courts and agencies to establish rules and standards that allow ea ch 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 e ff ective 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 de fi nition of “deadly weapon” the Board now adopts. But both he and this court are entitled to know why the Board characterized his New Jersey o ff ense 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 colloqu y was inconclusive on the question whether his accomplices possessed some unidenti fi ed traditional deadly weapon. It th en stated that any factual ambiguity about whether the record established the type of weapon(s) Garcia-Martinez’s ac complices were or were not using was to be construed agai nst him because “he bears the burden of establishing his eligib ility for relief,” citing 8 U.S.C. § 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d). It is true that forthe 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.3d606, 607 (7th Cir. 2014) (noting that under the same regulations as are applicable here, pe titioner 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 mo ral turpitude does not turn onthe 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- fi nding about the nature of the accomplices’ weapons. The only task left for the Board was to decide as a ma tt er of law how the New Jersey statute maps onto the generic o ff ense of assault with a deadly weapon. The Board failed to explain wh y Garcia-Martinez failed to meet his burden of showing ap plications of New Jersey law that went beyond the generic o ff ense. It seemingly rested this conclusion on its belief that all parties agreed that GarciaMartinez’s plea colloquy was ambi guous. That is not accurate.No. 18-1797 19

In fact, the argument that th e factual basis for Garcia-Martinez’s plea was incomplete or inconclusive came as a surprise to everyone: rather than coming from the DHS a tt orney, itoriginated with the IJ at the hearing. Garcia-Martinez has contended throughout these proceedi ngs that his state plea colloquy, which is in the record, laid out all of the facts relevant to his conviction. The DHS a tt orney at his initial hearing did notsuggest 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 [rel evant documents] would be thestatement 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 factidentifying 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 cour t accepting Garcia-Martinez’s conviction said nothing about th e 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 fi rst 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 wayin which the IJ found factual ambiguity, it nevertheless upheld the IJ’s decision to ruleagainst Garcia-Martinez without

o ff ering him the opportunity to respond. It appears to us that Garcia-Martinez has entered all the relevant Sheparddocuments into the record, and so th e Board should be able to decide as a ma tt er of law whether New Jersey’s assault with a20 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 wi th a deadly weapon, and thus

re fl ects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez’s Sheparddocuments, it should explain th at 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 Ap peals for further proceedings consistent with this opinion.