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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10514
Non-Argument Calendar
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Agency No. A071-032-499
CYRIL DANE FLORES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 23, 2021)
Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Cyril Dane Flores seeks review of the Board of Immigration Appeals’ order
dismissing his appeal from the immigration judge’s denial of his application for
cancellation of removal. Flores argues that the BIA erred in concluding that he was
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statutorily ineligible for cancellation of removal because his Georgia aggravated
assault conviction was not an aggravated felony under
8 U.S.C. § 1101(a)(43)(F)
and
18 U.S.C. § 16(a) and because he had not been sentenced to a term of
imprisonment for a year or more for that conviction. Because we agree that the BIA
erred in concluding that Flores’s Georgia aggravated assault conviction constituted
an aggravated felony, we grant the petition and remand for the BIA to determine, in
its discretion, whether Flores’s case warrants cancellation of removal.
I.
Flores, a native and citizen of the Philippines, is a lawful permanent resident
of the United States. Last year, the Department of Homeland Security served him
with a notice to appear, which charged him as removable under INA §
237(a)(2)(B)(i),
8 U.S.C. § 1227(a)(2)(B)(i), for being a noncitizen who was
convicted of an offense related to a federally controlled substance. Flores had also
previously entered a guilty plea in Georgia state court for aggravated assault under
O.C.G.A. § 16-5-20(a)(2), for which he was sentenced to five years’ probation.
Flores filed an application for cancellation of removal. He argued in support
of that application that he was eligible for relief, in part, because his Georgia
aggravated assault conviction was not an aggravated felony for immigration
purposes. That was so, he argued, because it could be committed with the mens rea
of recklessness, and he was not sentenced to incarceration for a year or more. The
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government argued that Flores was convicted of an aggravated felony for
immigration purposes and that he was sentenced to five years’ confinement, which
could be served on probation. The government provided the judgment and
conviction documents for Flores’s prior convictions, which reflected that Georgia
had charged him with aggravated assault because he had assaulted someone with an
object likely to cause serious bodily injury. The immigration judge agreed with the
government and ruled that Flores was statutorily ineligible for cancellation of
removal and voluntary departure.
Flores appealed the immigration judge’s decision to the BIA. The government
moved for summary affirmance of the immigration judge’s decision. The BIA
dismissed Flores’s appeal in a written opinion. It noted that the sole issue on appeal
was whether Flores’s aggravated assault conviction qualified as an aggravated
felony under
8 U.S.C. § 1101(a)(43)(F) and
18 U.S.C. § 16(a). The BIA first
determined that the state had sentenced Flores to a term of imprisonment for at least
one year, as required under
8 U.S.C. § 1101(a)(43)(F). Second, it determined that
Flores’s conviction was for an aggravated felony, relying on this Court’s opinion in
United States v. Morales-Alonso,
878 F.3d 1311 (11th Cir. 2018). Accordingly, the
BIA dismissed Flores’s appeal. We now address Flores’s petition for review of that
decision.
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II.
First, we must satisfy ourselves of our jurisdiction to review the BIA’s
decision. See Chao Lin v. U.S. Att’y Gen.,
677 F.3d 1043, 1045 (11th Cir. 2012). We
have jurisdiction over “constitutional claims or questions of law raised upon a
petition for review.”
8 U.S.C. § 1252(a)(2)(D). To invoke that jurisdiction, a
petitioner must allege “at least a colorable” constitutional claim or question of law.
Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 & n.2 (11th Cir. 2007). Whether an
offense qualifies as an “aggravated felony” and thus whether an applicant is eligible
for discretionary relief is such a question of law. Donawa v. U.S. Att’y Gen.,
735
F.3d 1275, 1279 (11th Cir. 2013).
When the BIA issues an opinion without adopting the immigration judge’s
decision, we review only the BIA’s opinion. Li Shan Chen v. U.S. Att’y Gen.,
672
F.3d 961, 964 (11th Cir. 2011). And we review the question of whether an offense
qualifies as an “aggravated felony” de novo. Donawa, 735 F.3d at 1279.
When a lawful permanent resident commits certain serious crimes, the
government may initiate removal proceedings before an immigration judge.
8 U.S.C. § 1229a. Even if the lawful permanent resident is found removable, the
immigration judge may cancel removal, but only if the lawful permanent resident
meets strict statutory eligibility requirements. 8 U.S.C. § 1229b(a), (d)(1)(B). For
example, the applicant (1) must have been a lawful permanent resident for at least
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five years; (2) must have continuously resided in the United States for at least seven
years after lawful admission; and (3) must not have been convicted of an aggravated
felony as defined in the immigration laws. 8 U.S.C. § 1229b(a). If a lawful
permanent resident meets those eligibility requirements, the immigration judge
may—but need not—cancel removal and allow the lawful permanent resident to
remain in the United States. 8 U.S.C. § 1229b.
A crime is an “aggravated felony” if, among other things, it is a “crime of
violence,” as defined in
18 U.S.C. § 16, for which the term of imprisonment is at
least one year.
8 U.S.C. § 1101(a)(43)(F). A crime of violence is “an offense that
has as an element the use, attempted use, or threatened use of physical force against
the person or property of another.”
18 U.S.C. § 16(a). Importantly, decisions
analyzing the definition of “violent felony” in the Armed Career Criminal Act’s
elements clause “provide substantial guidance” in analyzing the definition of “crime
of violence” in
18 U.S.C. § 16(a) because the two provisions are practically identical.
United States v. Gonzalez-Lopez,
911 F.2d 542, 546 n.4 (11th Cir. 1990), superseded
on other grounds by rule as stated in United States v. Spell,
44 F.3d 936, 939 (11th
Cir. 1995).
Under Georgia law, a person commits a simple assault when he “[a]ttempts to
commit a violent injury to the person of another” or “[c]ommits an act which places
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another in reasonable apprehension of immediately receiving a violent injury.”
O.C.G.A. § 16-5-20(a). The assault is “aggravated” if the perpetrator assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with an object, device, or instrument
which, when used offensively against a person, is likely to or
actually does result in serious bodily injury;
(3) With any object, device, or instrument which, when used
offensively against a person, is likely to or actually does result in
strangulation; or
(4) A person or persons without legal justification by discharging a
firearm from within a motor vehicle toward a person or persons.
O.C.G.A. § 16-5-21(a). Essentially, a conviction for aggravated assault in Georgia
has two elements: (1) a simple assault (relevant here, attempted infliction of violent
injury), and (2) an aggravating factor (relevant here, use of a weapon capable of
inflicting serious bodily injury). See Smith v. Hardrick,
464 S.E.2d 198, 200 (Ga.
1995).
The Supreme Court recently held that a criminal offense with a mens rea of
recklessness does not qualify as a “violent felony” under ACCA’s elements
clause. See Borden v. United States,
141 S. Ct. 1817, 1825 (2021). Based on Borden,
we reinstated our opinion in United States v. Moss,
920 F.3d 752 (11th Cir. 2019),
which had been vacated after a grant of rehearing en banc. United States v. Moss,
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F.4th 1292, 1292 (11th Cir. 2021). In the reinstated Moss, we held that a conviction
for Georgia aggravated assault under O.C.G.A. § 16-5-21(a)(2) based on a simple
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assault, could be committed recklessly. Moss, 920 F.3d at 759. But to qualify as a
violent felony under ACCA’s elements clause, a felony “must be predicated on the
intentional use of physical force.” Id. (citing United States v. Palomino Garcia,
606
F.3d 1317, 1336 (11th Cir. 2010)). So we concluded that Georgia’s aggravated
assault does not qualify as a violent felony.
Id.
Here, the BIA erred in concluding that Flores was statutorily ineligible for
cancellation of removal because he was not convicted of an aggravated felony.
Based on Borden and Moss, Flores’s Georgia aggravated assault conviction under
O.C.G.A. § 16-5-21(a)(2) is not a “crime of violence” under
18 U.S.C. § 16(a)
because it can be committed with a mens rea of recklessness, therefore, it is not an
“aggravated felony” under
8 U.S.C. § 1101(a)(43)(F). We need not address whether
Flores was sentenced to a term of imprisonment of a year or more in light of our
conclusion that Flores’s conviction was not for an aggravated felony. We hold that
Flores is eligible for cancellation of removal, grant Flores’s petition, and remand for
the BIA to exercise its discretion and decide whether cancellation of removal is
warranted.
PETITION GRANTED.
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