The Seventh Circuit has determined that some of the conduct criminalized by New Jersey’s aggravated assault statute falls outside the definition of moral turpitude. Examining the facts of the petitioner’s conviction, the court noted that “the only weapons anyone had in the fracas leading to Garcia-Martinez’s earlier conviction were body parts: hands, fingers, feet. Body parts are sometimes, but not always, considered to be deadly weapons. In other instances, courts have declined to characterize body parts as deadly or dangerous weapons.” “New Jersey, the state of Garcia-Martinez’s conviction, has its own quirks. There, placing a hand in a pocket so as to make a victim believe it is a gun counts as the use of a deadly weapon.”

“The Board left most of this unexplored. It did not explain why Garcia-Martinez’s act of sticking his leg out to trip the victim was an act of moral turpitude, thus making his offense fall within the generic crime of assault with a deadly weapon—if that is indeed what it decided (also unclear). To the extent the Board was relying on accomplice liability, it did not explain whether its decision rested only on the assumption that the actual assailants were using their fists, or also on the unsupported speculation that they were holding some other unspecified weapon that the New Jersey judge thought unimportant enough not to address.”

Finally, the court also reminded the Board that under the proper application of the modified categorical approach, if all relevant parts of the record of conviction are entered into evidence, the court should be able to determine as a matter of law whether a conviction is a crime involving moral turpitude or not. “Garcia-Martinez was entitled to show the Board the record on which the New Jersey courts actually relied; that record shows that he was convicted without any further fact-finding about the nature of the accomplices’ weapons. The only task left for the Board was to decide as a matter of law how the New Jersey statute maps onto the generic offense of assault with a deadly weapon.“ “Additionally, the New Jersey Supreme Court requires courts to establish a factual basis before accepting a guilty plea, and the state court accepting Garcia-Martinez’s conviction said nothing about the need to establish the existence of a traditional deadly weapon.” “. It appears to us that Garcia-Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey’s assault with a deadly weapon statute is closer to generic simple assault, and thus not a crime of moral turpitude, or stays within the boundaries of generic assault with a deadly weapon, and thus reflects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez’s Shepard documents, it should explain that view and Garcia-Martinez should be given the opportunity to present any necessary additional materials.”

The full text of Garcia-Martinez v. Barr can be found here: