Wilmer De Jesus Cruz v. U.S. Attorney General

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-11131 Non-Argument Calendar ____________________

WILMER DE JESUS CRUZ, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A099-255-306 ____________________

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Before ROSENBAUM, GRANT, and BLACK, Circuit Judges. PER CURIAM: Wilmer De Jesus Cruz seeks review of the order of the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) order of his removal and denial of cancellation of removal. In September 2017, Cruz was convicted of felony breaking and enter- ing and felony larceny in North Carolina. He was sentenced to 8 to 19 months’ imprisonment consolidated for both Class H felony offenses. The court found no aggravating or mitigating factors, and instead noted it made “no written findings because the prison term imposed [was] within the presumptive range of sentences au- thorized under” N.C. Gen. Stat. § 15A-1340.17(c). In October 2019, the Department of Homeland Security initiated removal proceed- ings against Cruz via a Notice to Appear that charged him as re- movable, in relevant part, under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony for his breaking and enter- ing offense. Before the BIA, Cruz argued that it is impossible to tell how much sentencing weight each of his charges had on his overall sen- tence. He cited State v. Moore, 395 S.E.2d 124 (N.C. 1990), and State v. Wortham, 351 S.E.2d 294 (N.C. 1987), for the proposition that when convictions are consolidated for sentencing in North Carolina, without written findings or some other additional infor- mation in the record, courts are unable to determine what weight, if any, the trial court gave to each separate conviction. Cruz also

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argued that State v. Skipper, 715 S.E.2d 271 (N.C. Ct. App. 2011), did not stand for the proposition that all sentences in a consolidated sentence are the functional equivalent of a concurrent judgment, but rather, for the proposition that the “equally attributable” rule is inapplicable to consolidated judgments. In its order, the BIA cited only Skipper for the proposition that the sentence for a consolidated judgment applied to all of the convictions consolidated in the judgment and did not engage with the line of cases cited by Cruz that the weight given to each sepa- rate conviction is indeterminable without additional record infor- mation. Cruz asserts the BIA erred in concluding this and, as such, erred in concluding he was ineligible for cancellation of removal as an aggravated felon given that his consolidated sentence was not a term of imprisonment of at least one year solely for the charge of breaking and entering. The Government concedes in its response brief that the BIA failed to give reasoned consideration to this issue and requests that we remand for the BIA to explain its holding re- garding Skipper and other North Carolina authorities that are in tension with its holding regarding consolidated sentences. We review de novo whether a conviction qualifies as an “ag- gravated felony.” Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335- 36 (11th Cir. 2011). An aggravated felony includes crimes of vio- lence for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). We have held that “an aggravated felony is defined by the sentence actually imposed.” United States v. Guz- man-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).

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As acknowledged by the Government, there appears to be tension in the law of North Carolina as to how the sentence in a consolidated judgment applies to each of the convictions, and the BIA did not specifically address the authorities and arguments pre- sented below on this issue. Notably, while Skipper concluded that a reduced sentence was not warranted when one of the convictions of a consolidated judgment was vacated where the remaining con- victions had the same highest classification of felony regardless of the vacated conviction, other authorities state that remand is nec- essary in this situation because appellate courts are unable to deter- mine what weight was given to each offense. The BIA failed to consider these contrary authorities. North Carolina courts also dis- tinguish between consolidated and concurrent sentences. See United States v. Davis, 720 F.3d 215, 218 (4th Cir. 2013). While we could grapple with these authorities in the first instance, “[g]ener- ally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002); Lauture v. U.S. Att’y Gen., No. 19-13165, 2022 WL 805703 at *8 (11th Cir. Mar. 17, 2022). We grant Cruz’s petition, vacate the BIA’s decision, and re- mand so that the BIA can engage with the parties’ arguments and caselaw more thoroughly. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 874 (11th Cir. 2018) (“Where the BIA has not given reasoned consideration of a question or made adequate findings, we remand for further proceedings.”(quotations omitted)). Once

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it does so, the BIA can clarify the basis of its ruling and determine whether Cruz’s North Carolina felony breaking and entering con- viction had a sentence of at least one year. See 8 U.S.C. § 1101(a)(43)(F); Guzman-Bera, 216 F.3d at 1020. PETITION GRANTED.