## Facts

- Lazaro Javier Larios, a citizen of El Salvador, entered the United States without inspection in 1986.
- In 1998, outside a bar in New Jersey, Larios displayed a knife during an encounter he believed was a potential robbery, causing the other person to flee.
- Larios pleaded guilty under N.J. Stat. Ann. § 2C:12-3(a) to threatening to commit a crime of violence “with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.”
- In removal proceedings, Larios sought nonpermanent-resident cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ and BIA treated the conviction as a crime involving moral turpitude (CIMT), making Larios statutorily ineligible for cancellation under 8 U.S.C. § 1229b(b)(1)(C).
- After multiple remands concerning the correct categorical methodology, the BIA again found ineligibility, prompting this petition for review.

## Issues

1. Whether N.J. Stat. Ann. § 2C:12-3(a) is divisible, requiring the modified categorical approach rather than the categorical approach to evaluate CIMT consequences.
2. Under the correct approach, whether Larios’s offense of conviction under § 2C:12-3(a) qualifies as a CIMT that bars cancellation of removal eligibility under 8 U.S.C. § 1229b(b)(1)(C).

## Decision

- The Third Circuit granted the petition for review and remanded.
- The court held § 2C:12-3(a) is divisible into separate crimes, so the modified categorical approach applies.
- Consulting Shepard documents, the court identified Larios’s offense as threatening a crime of violence to terrorize (or in reckless disregard of causing terror), with a minimum mens rea of recklessness.
- The court held that, as defined by its least culpable conduct and without statutory aggravating factors, Larios’s offense is not a CIMT.
- Because the conviction was not a CIMT, Larios was not statutorily barred from seeking cancellation; the agency retained discretion to grant or deny relief on remand.

## Legal Principles

- The categorical approach compares the elements of a state offense with the federal generic standard; it does not examine case-specific facts.
- The modified categorical approach applies only to divisible statutes that list alternative elements creating multiple crimes; it permits consultation of a limited set of conviction records to identify the crime of conviction.
- Divisibility turns on whether alternatives are elements that must be found by a jury (or admitted in a plea), not alternative factual means.
- CIMT analysis focuses on the least culpable conduct covered by the offense of conviction; a reckless mens rea alone does not make an offense turpitudinous absent sufficiently depraved or aggravated conduct as defined by the offense’s elements.
- A noncitizen is ineligible for non-LPR cancellation under 8 U.S.C. § 1229b(b)(1)(C) if convicted of an offense listed in 8 U.S.C. § 1182(a)(2), including a CIMT.

## Conclusion

The Third Circuit held that New Jersey’s terroristic-threats statute is divisible and must be analyzed under the modified categorical approach; under that approach, Larios’s specific conviction was not a CIMT, removing the statutory bar to his cancellation application and requiring further agency proceedings.


Larios v. Att’y Gen. U.S., 978 F.3d 62 (3d Cir. 2020)