2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-19-2010

Larios v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3306

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"Larios v. Atty Gen USA" (2010). 2010 Decisions. Paper 231.

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NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 08-3306 

_____________ 

LAZARO JAVIER LARIOS, 

 Petitioner 

v. 

ATTORNEY GENERAL OF THE UNITED STATES, 

 Respondent 

_______________ 

On Petition for Review of an Order of the 

United States Department of Justice 

Board of Immigration Appeals 

(BIA-1 :A73-559-938) 

Immigration Judge: Honorable Eugene Pugliese 

_______________ 

Argued October 6, 2010 

Before: FUENTES, JORDAN and ALDISERT, Circuit Judges. 

(Filed: November 19, 2010) 

_______________ 

Regis Fernandez 

Sojee Kim [ARGUED] 

18 Green Street – 3rd Fl. 

Newark, NJ 07102 

Counsel for Petitioner
Paul Fiorino 

Allen W. Hausman 

Thomas W. Hussey 

Jeffrey R. Leist 

Tracey McDonald 

Ernesto H. Molina, Jr. 

Office of Immigration Litigation 

Civil Division 

U.S. Department of Justice 

P.O. Box 878, Ben Franklin Station 

Washington, DC 20044 

Anthony P. Nicastro [ARGUED] 

United States Department of Justice 

Office of Immigration 

8040N 

1331 Pennsylvania Avenue, NW 

Washington, DC 20530 

Counsel for Respondent

_______________ 

OPINION OF THE COURT 

_______________ 

JORDAN, Circuit Judge. 

Lazaro Javier Larios appeals an order of the Board of Immigration Appeals 

(“BIA”) affirming the denial of his application for cancellation of removal. The 

Immigration Judge (“IJ”) denied his application because of Larios’s 1998 conviction for 

terroristic threats under N.J. ANN. § 2C:12-3, which both the IJ and the BIA concluded 

was a crime involving moral turpitude. Larios disputes that conclusion. Larios asserts 

that § 2C:12-3 encompasses both crimes that qualify as morally turpitudinous as well as 

crimes that do not. Because we hold that § 2C:12-3(a) is a divisible statute requiring the 

application of the modified categorical approach, we will remand to allow an analysis of 
3 

Larios’s record of conviction to determine if his conduct constituted a crime of moral 

turpitude. 

I. Factual Background

Larios is a citizen and native of El Salvador, who entered the United States 

without inspection on or around November 1, 1986. After entering the United States, he 

moved to New Jersey to live with his brother and sister-in-law. On April 26, 1999, 

Larios pled guilty in New Jersey Superior Court to terroristic threats in the third degree, 

under § 2C:12-3, and unlawful possession of a weapon, under New Jersey Statute 

§ 2C:39-50. The plea arose from an incident that occurred at approximately 3:00 a.m. on 

May 22, 1998, while Larios was standing outside a bar in West New York, New Jersey. 

A man named Paillaman approached Larios and asked him for directions to another bar. 

In response, Larios pulled a knife from his pocket, waved it in Paillaman’s face, and 

demanded all of Paillaman’s money. Paillaman got away and called the police, who 

subsequently arrested Larios. After his plea, Larios was sentenced to three years 

probation and a $200 fine. 

On January 9, 2006, an asylum officer with the Department of Homeland Security 

(“DHS”) interviewed Larios in connection with an application for asylum that Larios had 

filed on July 31, 1995. The DHS officer determined that Larios was not eligible for 

asylum, and, on January 23, 2006, DHS charged him with being removable pursuant to 

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) 

(2006), as an alien present in the United States without being admitted or paroled. Larios 
4 

 

conceded that he had entered the United States illegally and was therefore removable, but 

he sought to have the Attorney General cancel his removal and adjust his status pursuant 

to 8 U.S.C. § 1229b(b), which allows for discretionary relief to nonpermanent resident 

aliens who meet certain eligibility requirements. 

On October 18, 2006, the IJ denied Larios’s application for cancellation of 

removal. The IJ determined that Larios was statutorily ineligible for cancellation 

pursuant to § 1229b(b)(1)(C) because his conviction for terroristic threats constituted a 

crime of moral turpitude under 8 U.S.C. § 1182(a)(2). New Jersey Criminal Statute § 

2C:12-3, titled “Terroristic Threats,” provides in pertinent part:1

a. 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). In the IJ’s view, that section of the statute involves 

acts of moral turpitude.2 

1

 It is undisputed that Larios pled guilty to terroristic threats in the third degree in 

violation of § 2C:12-3. The IJ noted that subsections (a) and (b) both criminalize 

terroristic threats in the third degree and that, “[i]n the present case the Court does not 

have the indightment [sic] for the third degree terroristic threats charge. ... [Larios’s 

conviction] was a downgraded charge and ... there was no written indightment [sic] or 

information or other type of charging document to reflect that there was a new charge.” 

(AR at 62.) The IJ therefore found it unclear from the record whether Larios pled guilty 

to subsection (a) or (b). However, the plea transcript specifically states that Larios pled 

to terroristic threats under subsection (a). 

 2 Because the IJ found the record to be unclear as to which section Larios pled, the 

IJ explored subsection (a) and (b) and found that both sections cover turpitudinous 

conduct. 
5 

 

On July 9, 2008, the BIA adopted and affirmed the IJ’s decision and dismissed 

Larios’s appeal. The BIA explained that, because “the intentional transmission of threats 

is evidence of a vicious motive or a corrupt mind” (AR at 2), “[Larios’s] conviction ... 

does involve moral turpitude.” (AR at 3.) Larios then submitted this timely petition for 

review. 

II. Discussion3

A. Standard of Review 

Because the BIA not only adopted and affirmed the decision of the IJ, but also 

provided its own reasoning for its decision, we review both the decision of the IJ and that 

of the BIA. Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008). We review the 

BIA’s legal determinations de novo. Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 

2005). However, “[w]e ... afford Chevron deference to the BIA’s definition of moral 

turpitude,” Knapik v. Ashcroft, 384 F.3d 84, 87 n.3 (3d Cir. 2004), as well as to “BIA[] 

determination[s] that reckless endangerment crimes may involve moral turpitude.” Id. at 

88. On the other hand, “in determining what the elements are of a particular criminal 

statute deemed to implicate moral turpitude, we do not defer to the BIA.” Id. Because, 

“we owe no deference to the IJ’s interpretation of a state criminal statute,” we will parse 

the elements of the statute ourselves and then apply to that the BIA’s conception of what 

constitutes a crime of moral turpitude. Partyka, 417 F.3d at 411. 

3

 We have jurisdiction to review the BIA’s final order of removal pursuant to 8 

U.S.C. § 1252(a). 
6 

B. Overview of Applicable Law 

Pursuant to 8 U.S.C. § 1229b(b), a nonpermanent resident alien may file an 

application with the Attorney General for discretionary cancellation of removal and 

adjustment of status. The burden is on the alien to establish eligibility for such relief by a 

preponderance of the evidence. 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d); see 

also Jean-Louis v. Att’y Gen., 582 F.3d 462, 464 n.2 (3d Cir. 2009) (“An alien bears the 

burden of establishing his eligibility for discretionary cancellation of removal.”). 

An alien who has committed a crime involving moral turpitude is ineligible for 

discretionary cancellation of removal and adjustment of status under § 1229b(b). 8 

U.S.C. § 1182(a)(2)(A)(i) (providing that “any alien convicted of, or who admits having 

committed, or who admits committing acts which constitute the essential elements of ... a 

crime involving moral turpitude (other than a purely political offense) ... is 

inadmissible”). “In determining whether a state law conviction constitutes a [crime 

involving moral turpitude] ... we have historically applied a categorical approach, 

focusing on the underlying criminal statute rather than the alien’s specific act.” JeanLouis, 582 F.3d at 465. Under the categorical approach, “we read the applicable statute 

to ascertain the least culpable conduct necessary to sustain a conviction under the 

statute.” Partyka, 417 F.3d at 411. As a general rule, a criminal statute is determined to 

define a crime as categorically involving moral turpitude “only if all of the conduct [the 

statute] prohibits is turpitudinous.” Id. If all of the conduct prohibited by the statute 

involves moral turpitude, the defendant’s conviction under that statute was necessarily 
7 

 

one for a crime involving moral turpitude and our analysis ends. In re Ajami, 22 I. & N. 

Dec. 949 (BIA 1999). It is only if “a statute covers both turpitudinous and nonturpitudinous acts” that we turn to a modified categorical approach and “look to the 

record of conviction to determine whether the alien was convicted under that part of the 

statute defining a crime involving moral turpitude.” Partyka, 417 F.3d at 411. 

In considering whether a statute encompasses turpitudinous conduct, we have held 

that “the hallmark of moral turpitude is a reprehensible act committed with an 

appreciable level of consciousness or deliberation.”4 Partyka, 417 F.3d at 414. While the 

Immigration and Nationality Act (“INA”) does not define “moral turpitude,” Partyka, 

417 F.3d at 413, the BIA has defined it as “conduct that is inherently base, vile, or 

depraved, contrary to the accepted rules of morality and the duties owed other persons, 

either individually or to society in general.” Knapik, 384 F.3d at 89 (citing Matter of 

Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994)). An act is turpitudinous if it “is 

accompanied by a vicious motive or a corrupt mind.” Partyka, 417 F.3d at 413. 

4

 Crimes that are committed without “evil intent” or unaccompanied by “a vicious 

or corrupt mind” have been found not to involve moral turpitude. Partyka, 417 F.3d at 

413; see also United States v. Rebelo, 646 F. Supp. 2d 682, 692 (D.N.J. 2009) (noting 

that negligent assault with a deadly weapon under N.J. STAT. ANN. § 2C:12-1a(2) does 

not constitute a crime involving moral turpitude); In Matter of Perez-Contreras, 20 I. & 

N. Dec. 615, 619 (BIA 1992) (finding that assault committed with criminal negligence 

does not constitute a crime of moral turpitude). 
8 

 

C. Application 

 Applying the foregoing to the statute at issue in this case, we ask whether 

§ 2C:12-3(a) prohibits both turpitudinous and non-turpitudinous conduct. Section 2C:12-

3(a) prohibits threats to commit a “crime of violence.” Therefore, to ascertain whether 

the least culpable conduct necessary to sustain a conviction under § 2C:12-3(a) involves 

moral turpitude, we may begin by determining what actions qualify as crimes of 

violence.5

 Then, if the least culpable conduct constituting a “crime of violence” is nonturpitudinous, the statute can rightly be considered as being divisible. 

 Though the parties have not directed our attention to, nor have we found, any 

provision of the New Jersey Criminal Code or relevant precedent from the New Jersey 

Courts that defines a “crime of violence,”6

 we have previously analyzed a nearly 

 5 Larios does not argue that a threat cannot be a crime of moral turpitude, and 

several BIA cases have found that moral turpitude is implicated in threatening behavior. 

See In re Ajami, 22 I. & N. Dec. at 952 (“We find that the intentional transmission of 

threats is evidence of a vicious motive or a corrupt mind” and that the “respondent was 

[thus] convicted of a crime involving moral turpitude.”); Matter of B-, 6 I. & N. Dec. 98 

(BIA 1954) (finding crimes involving usury by intimidation and threats of bodily harm to 

involve moral turpitude); Matter of C-, 5 I. & N. Dec. 370 (BIA 1953) (finding threats to 

take property by force to involve moral turpitude); Matter of F-, 3 I. & N. Dec. 361 (C.O. 

1948; BIA 1949) (finding the mailing of menacing letters demanding property and 

threatening violence to involve moral turpitude); see De Leon-Ochoa v. Att’y Gen., --- 

F.3d ----, 2010 WL 3817082, at *7 (3d Cir. 2010) (Aldisert, J.) (“[A]ccording to the 

Board’s own internal policies, ‘[u]npublished decisions are binding on the parties to the 

decision but are not considered precedent for unrelated cases.’”). 

6

 One unpublished case lists crimes of violence as used in § 2C:12-3 to include 

simple assault, kidnapping, sexual assaults, robbery, carjacking, arson, and burglary. 

State ex rel. M.R., No. FJ-21-475-06, 2008 WL 4841015, at *5 (N.J. Super. Ct. App. Div. 

Nov. 10, 2008). In another case the New Jersey Supreme Court referenced in passing 
9 

r. 

at 

use 

s 

. 

 

identical statute from Pennsylvania. In Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d Ci

2002) (citation omitted), we considered 18 Pa. Cons. Stat. § 27067 and looked to 18 

U.S.C. § 16 for illumination of the meaning of “crime of violence.” We determined th

the term “crime of violence,” as used in the Pennsylvania statute, is, as described in 18

U.S.C. § 16, an offense that has as an element “the use, attempted use, or threatened 

of physical force against the person or property of another.” Bovkun, 283 F.3d at 170. 

We likewise adopt that definition of the term for the purposes of analyzing New Jersey’

§ 2C:12-3(a)

Using that definition, it appears that in New Jersey simple assault is encompassed 

within the meaning of “crime of violence,” as it, in turn, is defined as “(1) attempt[ing] to 

cause or purposely, knowingly, or recklessly caus[ing] bodily injury to another; or, (2) 

negligently caus[ing] bodily injury to another with a deadly weapon; or, (3) attempt[ing] 

by physical menace to put another in fear of imminent serious bodily injury.” N.J. STAT.

ANN. § 2C:12-1(a). Simple assault, however, is not generally understood to be a crime of 

moral turpitude. See e.g., In re Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007) (noting that 

“as a general rule, a simple assault and battery offense does not involve moral 

“crimes involving violence,” and cited simple assault, death by automobile, aggravated 

assault with a deadly weapon, terroristic threats, reckless endangerment, and aggravated 

arson. In re Witherspoon, 3 A.3d 496, 504 (N.J. 2010) (discussing those crimes in the 

context of attorney disbarment). 

7

 Terroristic Threats, 18 Pa. Cons. Stat. § 2706 (1998) provides: “A person is guilty of 

a misdemeanor of the first degree if he threatens to commit any crime of violence with 

intent 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.” 
10 

turpitude”); Fualaau, 21 I. & N. Dec 475, 477 (BIA 1996) (holding that simple assault is 

not a crime of moral turpitude). It thus appears that the term “crime of violence,” as used 

in § 2C:12-3(a), includes simple assault, which is a non-turpitudinous crime. 

Because a conviction under § 2C:12-3(a) can be sustained by proving a threat to 

commit simple assault, and because simple assault is itself non-turpitudinous, we 

conclude that the threat is likewise non-turpitudinous. Thus, § 2C:12-3(a) is divisible, 

because it encompasses both turpitudinous and non-turpitudinous conduct, which means 

that Larios’s conviction should have been evaluated under the modified categorical 

approach, rather than the categorical approach. 

III. Conclusion

For the foregoing reasons, Larios’s conviction for terroristic threats in the third 

degree must be analyzed under the modified categorical approach to determine if it 

constitutes a crime involving moral turpitude. Only then can it be determined if he is 

statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b). We will 

therefore remand so that the appropriate immigration authorities can engage in that 

analysis of his record of conviction.