Lazaro Larios v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-2594 ____________ LAZARO JAVIER LARIOS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A073-559-938) Immigration Judge: Annie S. Garcy ____________ Argued March 4, 2020 Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges (Opinion Filed: October 14, 2020) Regis Fernandez [Argued] 7 Federal Square Newark, NJ 07102 Attorney for Petitioner Raya Jarawan [Argued] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Anthony C. Payne United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorneys for Respondent ____________ OPINION OF THE COURT ____________ KRAUSE, Circuit Judge. To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This 2 analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies. That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review. I. Factual and Procedural History For nonpermanent residents who meet the eligibility criteria outlined in 8 U.S.C. § 1229b(b)(1), cancellation of removal is a discretionary form of relief that “allows [them] to remain in the United States despite being found removable.” Barton v. Barr, 140 S. Ct. 1442, 1445 (2020). But those who have “been convicted of an offense under section 1182(a)(2),” 8 U.S.C. § 1229b(b)(1)(C)—which includes “a crime involving moral turpitude” (CIMT), id. § 1182(a)(2)(A)(i)(I)— are ineligible for cancellation of removal. 3 Larios, an El Salvadoran national, entered the country without inspection in 1986. In 1998, Larios was approached by someone outside of a bar and, allegedly because he believed he would be 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 ...

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