978 F.3d 62
3d Cir.2020Background
- Petitioner Lazaro Javier Larios (El Salvadoran national) pleaded guilty in New Jersey to violating the terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a), after an incident in 1998 involving a knife and causing another person to flee.
- The conviction alleged threatening to commit a crime of violence with either the purpose to terrorize or in reckless disregard of causing terror; Larios sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ and BIA found the conviction was a categorical match for a crime involving moral turpitude (CIMT), rendering Larios ineligible for cancellation; the case was remanded multiple times for clarification of divisibility and mens rea issues.
- The Third Circuit held § 2C:12-3(a) is divisible as to alternative causation elements (terrorize; evacuation; serious public inconvenience), so the modified categorical approach applies.
- Shepard documents (plea colloquy) showed Larios was convicted under the alternative requiring a mens rea of purpose or reckless disregard; the court analyzed whether the reckless-disregard alternative is a CIMT.
- The court concluded the reckless-disregard alternative lacks statutory aggravating factors making recklessness inherently vile; thus the least culpable conduct (a reckless threat to commit a violent property offense) is not a CIMT, and Larios is eligible to have the petition granted and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the categorical or modified categorical approach applies to N.J. § 2C:12-3(a) | Larios: statute is divisible (alternative elements), so use modified categorical approach | Government: statute indivisible; categorical approach controls | Court: statute divisible (alternate causation elements); modified categorical approach applies |
| Whether Shepard materials show which statutory alternative formed conviction | Larios: plea colloquy shows conviction for threat to commit crime of violence with purpose or reckless disregard to terrorize | Government: (contested mens rea and scope) | Court: Shepard documents show conviction under alternative with mens rea including reckless disregard |
| Whether the reckless-disregard alternative constitutes a CIMT | Larios: recklessness without aggravating factors is not turpitudinous (cites Mahn/Knapik) | Government: threat element and crime-of-violence element make it inherently base; prosecutions typically involve serious threats | Court: no statutory aggravating factors; recklessness here can encompass non-turpitudinous conduct (e.g., threats to commit property offenses); not a CIMT |
| Whether the BIA permissibly relied on realistic-probability/empirical prosecutions to find CIMT | Larios: realistic-probability analysis is inapplicable to moral-turpitude categorical inquiry (Jean-Louis) | Government/BIA: point to practice showing prosecutions involve serious threats | Court: rejects realistic-probability approach here; focuses on statutory minimum conduct instead |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (principle and limits of categorical and modified categorical approaches)
- Mathis v. United States, 136 S. Ct. 2243 (use of Shepard documents and element/means distinctions)
- Shepard v. United States, 544 U.S. 13 (documents permissible to identify the offense of conviction)
- Hillocks v. Attorney General, 934 F.3d 332 (modified categorical approach framework)
- Baptiste v. Attorney General, 841 F.3d 601 (recklessness can be turpitudinous where aggravating factors present)
- Knapik v. Ashcroft, 384 F.3d 84 (reckless endangerment and factors making recklessness turpitudinous)
- Mahn v. Attorney General, 767 F.3d 170 (recklessness not turpitudinous when statute lacks aggravating factors)
- Javier v. Attorney General, 826 F.3d 127 (threat with intent to terrorize is a CIMT)
- Jean-Louis v. Attorney General, 582 F.3d 462 (rejecting realistic-probability analysis for CIMT categorical inquiries)