Larios v. Attorney General United States, No. 19-2594 (3d Cir. 2020)Annotate this Case
Larios, an El Salvadoran national, entered the country without inspection in 1986. In 1998, Larios, allegedly thinking he was being robbed, pulled out a knife and caused the person to flee. Larios pleaded guilty to “threaten[ing] to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror,” N.J. Stat. 2C:12-3(a). In removal proceedings, he sought cancellation of removal, 8 U.S.C. 1229b(b)(1), a discretionary form of relief unavailable to those who have “been convicted of an offense under section 1182(a)(2),” including “a crime involving moral turpitude” (CIMT).
Larios argued that his crime could not qualify as a CIMT because, under the categorical approach, the elements of a state statute must define an offense not broader than the federal statute, while “the least culpable conduct necessary to sustain a conviction under the [New Jersey] statute,” a threat to commit “simple assault,” did not meet the criteria to qualify as “turpitudinous.” The Third Circuit held the statute was divisible and remanded. On remand, however, the IJ declined to apply the modified categorical approach. The BIA affirmed. After a second remand, the BIA again rejected Larios’s application.
The Third Circuit granted Larios's third petition, stating that under the modified categorical approach, Larios’s crime of conviction has a minimum mental state of recklessness but lacks any statutory aggravating factors, so the least culpable conduct is a reckless threat to commit a violent property crime, which is not turpitudinous.