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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10514
Non-Argument Calendar
____________________
CYRIL DANE FLORES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A071-032-499
____________________
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2 Opinion of the Court 21-10514
Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
The government moved for a panel rehearing of our opin-
ion that issued on September 23, 2021. We grant the motion for
panel rehearing, vacate our original opinion in this appeal, and sub-
stitute in its place the following opinion.
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. The BIA con-
cluded that Flores was disqualified from seeking cancellation of re-
moval because of his aggravated assault conviction, which it con-
sidered an aggravated felony under
8 U.S.C. § 1101(a)(43)(F). Sec-
tion 1101(a)(43)(F) states that an aggravated felony includes “a
crime of violence” for which the term of imprisonment is at least
one year. Upon review, we conclude that the BIA erred in its ele-
ments clause analysis. Because the statute of conviction is divisible,
the BIA erred by not applying the modified categorical approach to
Georgia’s aggravated and simple assault statutes. Accordingly, we
remand to the BIA so it can apply the modified categorical ap-
proach in the first instance and determine whether Flores’s crime
satisfies the “crime of violence” element of the definition of aggra-
vated felony.
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21-10514 Opinion of the Court 3
I.
Flores, a native and citizen of the Philippines, is a lawful per-
manent 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 of-
fense related to a federally controlled substance. Flores had also
previously entered a guilty plea in Georgia state court for aggra-
vated assault under O.C.G.A. § 16-5-20(a)(2), for which he was sen-
tenced to five years confinement which he was allowed to serve on
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 reck-
lessness, and he was not sentenced to incarceration for a year or
more. The government argued that Flores was convicted of an ag-
gravated felony for immigration purposes because aggravated as-
sault is a crime of violence for which Flores was sentenced to five
years’ confinement. The government provided the judgment and
conviction documents for Flores’s prior convictions, which re-
flected that Georgia had charged him with aggravated assault be-
cause he had assaulted someone with an object likely to cause seri-
ous bodily injury. The immigration judge agreed with the
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4 Opinion of the Court 21-10514
government and ruled that Flores was statutorily ineligible for can-
cellation of removal and voluntary departure.
Flores appealed the immigration judge’s decision to the BIA.
The government moved for summary affirmance of the immigra-
tion judge’s decision. The BIA dismissed Flores’s appeal in a writ-
ten opinion. It noted that the sole issue on appeal was whether Flo-
res’s aggravated assault conviction qualified as an aggravated fel-
ony 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 of at least one year, as required under
8 U.S.C. §
1101(a)(43)(F). Second, it determined that Flores’s conviction was
for a crime of violence, relying on this Court’s opinion in United
States v. Morales-Alonso,
878 F.3d 1311 (11th Cir. 2018). Accord-
ingly, the BIA concluded that Flores’s aggravated assault convic-
tion qualified as an aggravated felony and dismissed Flores’s ap-
peal. We now address Flores’s petition for review of that decision.
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
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21-10514 Opinion of the Court 5
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 im-
migration 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 perma-
nent resident is found removable, the immigration judge may can-
cel 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 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. 8
U.S.C. § 1229b(a). If a lawful permanent resident meets those eligi-
bility requirements, the immigration judge may—but need not—
cancel removal and allow the lawful permanent resident to remain
in the United States. Id. 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).
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6 Opinion of the Court 21-10514
A.
Flores argues that his aggravated assault conviction is not an
aggravated felony because he was not sentenced to a “term of im-
prisonment” of at least one year. We disagree. Flores’s sentence to
five years confinement, to be served on probation, was a qualifying
“term of imprisonment” under Section 1101(a)(43)(F). We have
held that, for the purpose of defining “aggravated felony” under the
INA, a “term of imprisonment” includes “all parts of a sentence of
imprisonment from which the sentencing court excuses the de-
fendant,” including those parts probated under state law. United
States v. Ayala-Gomez,
255 F.3d 1314, 1316–17 (11th Cir. 2001).
Flores’s term of imprisonment thus included the entire five-year
confinement term to which he was initially sentenced. Accord-
ingly, on remand, the BIA need not revisit the “term of imprison-
ment” issue.
B.
Flores also argues that his aggravated assault conviction is
not an aggravated felony because it does not qualify as a crime of
violence. 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 guid-
ance” in analyzing the definition of “crime of violence” under
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.
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21-10514 Opinion of the Court 7
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 aggravated assault
when he (1) commits a simple assault, and (2) there is an aggravat-
ing factor present (such as the intent to murder, rape, or rob; or the
use of a deadly weapon). O.C.G.A. § 16-5-21(a); see Smith v.
Hardrick,
464 S.E.2d 198, 200 (Ga. 1995). A person commits simple
assault under Georgia law when he either “[a]ttempts to commit a
violent injury to the person of another” or “[c]ommits an act which
places another in reasonable apprehension of immediately receiv-
ing a violent injury.” O.C.G.A. § 16-5-20(a).
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). After 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,
4 F.4th 1292, 1292 (11th Cir. 2021).
In Moss, we held that a conviction for Georgia aggravated assault
under O.C.G.A. § 16-5-21(a)(2) was a crime of recklessness where
it was based on the “places another in reasonable apprehension”
variety of simple assault. Moss, 920 F.3d at 759. Because a felony
“must be predicated on the intentional use of physical force” to
qualify as a violent felony under ACCA’s elements clause, we con-
cluded that Georgia aggravated assault is not categorically a violent
felony. Id. (citing United States v. Palomino Garcia,
606 F.3d 1317,
1336 (11th Cir. 2010)).
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8 Opinion of the Court 21-10514
Here, the BIA erred in two ways. First, it erred in concluding
that Georgia aggravated assault is categorically a crime of violence.
After Borden and Moss, a conviction for Georgia aggravated assault
is not a categorical crime of violence under
18 U.S.C. § 16(a) be-
cause it can be committed with a mens rea of recklessness. It there-
fore cannot be classified as an “aggravated felony” under
8 U.S.C.
§ 1101(a)(43)(F) on that basis. The BIA erred by concluding that it
could.
Second, the BIA failed to apply the modified categorical ap-
proach in analyzing whether Flores’s conviction was for a crime of
violence. Georgia’s aggravated assault and simple assault statutes
are divisible, meaning that they set out one or more elements of an
offense in the alternative. Moss, 920 F.3d at 756–57. Where the stat-
ute of conviction is divisible, we apply the modified categorical ap-
proach, which requires us to consider a limited class of documents
such as the indictment, jury instructions, and plea agreement to de-
termine what crime, with what elements, a defendant was con-
victed of. Id. at 756. Once a court determines which divisible por-
tion of the statute a defendant was convicted under, it then applies
the categorical approach to that statutory phrase. Id. The BIA did
not perform this analysis.
The failure to apply the modified categorical approach is
consequential because, though aggravated assault can be commit-
ted recklessly, it can also be committed with intent. Id. at 758. Our
prior opinion issued in this appeal relied on Moss’s holding that ag-
gravated assault was not a “crime of violence” where it was based
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21-10514 Opinion of the Court 9
on the version of simple assault described by § 16-5-20(a)(2) (“an act
which places another in reasonable apprehension of immediately
receiving a violent injury”). That version of simple assault requires
a mens rea of recklessness. Moss, 920 F.3d at 757– 58. But in Moss
we assumed that the defendant was convicted of the least culpable
version of aggravated assault only after applying the modified cat-
egorical approach and deciding that the charging documents were
inconclusive. Id. at 758 (“Because the Shepard documents do not
indicate the portion of Georgia’s simple assault statute under which
Moss was convicted, we assume that he was convicted under the
‘least of the acts criminalized’ by the statute.”). Here, no such anal-
ysis was performed by the BIA.
To ascertain whether Flores was convicted of a crime of vi-
olence, his conviction should be analyzed under the modified cate-
gorical approach. We therefore vacate the portion of the BIA’s
judgment concluding that aggravated assault is a categorical crime
of violence, and remand with instructions to apply the modified
categorical approach in the first instance. The BIA is instructed to
determine which alternative elements of Georgia’s aggravated and
simple assault statutes Flores was convicted under and whether
those elements qualify as a crime of violence. Callahan v. United
States Dep’t of Health & Hum. Servs. through Alex Azar II,
939
F.3d 1251, 1266 (11th Cir. 2019) (“We are, after all, a court of re-
view, not a court of first view.”). On remand, Flores bears the bur-
den of proving that he has not committed a disqualifying offense.
See Pereida v. Wilkinson,
141 S. Ct. 754, 764–66 (2021) (“[J]ust as
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10 Opinion of the Court 21-10514
evidentiary gaps work against the government in criminal cases,
they work against the alien seeking relief from a lawful removal
order.”).
REMANDED.
