Larios v. Attorney General of the United States, 402 F. App'x 705

Larios, a Salvadoran native, entered the U.S. without inspection around 1986 and later pled guilty in 1999 to terroristic threats (third degree) under N.J. 2C:12-3 and unlawful possession of a weapon; the incident occurred May 22, 1998 and he received three years probation and a $200 fine.
DHS charged Larios with removability under 8 U.S.C. § 1182(a)(6)(A)(i) and he sought discretionary relief by applying for cancellation of removal and adjustment of status under § 1229b(b).
An Immigration Judge denied cancellation, finding Larios statutorily ineligible because his 2C:12-3 terroristic threats conviction involved moral turpitude under § 1182(a)(2).
The Board of Immigration Appeals affirmed, adopting the IJ’s conclusion that the conviction involved moral turpitude.
The Third Circuit held § 2C:12-3(a) is divisible and requires the modified categorical approach, remanding to analyze whether Larios’s record of conviction establishes a crime involving moral turpitude.
The court explained the burden on the alien to show eligibility for cancellation and clarified the approach to evaluating state convictions under moral turpitude standards.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is § 2C:12-3(a) divisible and subject to the modified categorical approach?	Larios argues the statute covers both turpitudinous and non-turpitudinous conduct.	The government contends the statute is not to be treated as divisible and supports a categorical analysis.	§ 2C:12-3(a) is divisible; modified categorical approach applies.
Does Larios’s conviction under § 2C:12-3(a) constitute a crime involving moral turpitude under the modified approach?	If the least culpable conduct is non-turpitudinous, the conviction may not involve moral turpitude.	The BIA/ IJ read the threats as involving a vicious mind and turpitude.	Remand for analysis of the record under the modified categorical approach to determine moral turpitude.

Partyka v. Att'y Gen., 417 F.3d 408 (3d Cir. 2005) (distinguishes categorical vs. modified categorical approach; burden on alien)
Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (deference to BIA on moral turpitude definitions; not for statutory elements)
In re Ajami, 22 I. & N. Dec. 949 (BIA 1999) (intentional transmission of threats as moral turpitude)
Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) (defines 'crime of violence' using force-based elements for parsing statutes)
Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994) (moral turpitude characterized as inherently base or depraved conduct)