Samoil Pruteanu v. U.S. Attorney General , 713 F. App'x 945 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17757
Non-Argument Calendar
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Agency No. A046-711-528
SAMOIL PRUTEANU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 16, 2017)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Samoil Pruteanu petitions for review of the Board of Immigration Appeals’
decision upholding an immigration judge’s order of removal based on his
convictions for an aggravated felony. The BIA held that his Georgia convictions
for burglary qualified as aggravated felonies, thus making him statutorily ineligible
to seek discretionary relief from removal. Mr. Pruteanu argues that the Georgia
burglary statute underlying his convictions does not qualify as generic burglary,
and that a panel of this Court erred in holding that the statute was divisible and,
therefore, subject to the modified categorical approach. See United States v.
Gundy, 842 F.3d 1156 (11th Cir. 2016), cert. denied, No. 16-8617, 2017 WL
1301351 (U.S. Oct. 2, 2017). The government contends that Mr. Pruteanu’s
arguments about his burglary convictions are moot because he conceded
removability on two other grounds. We conclude that we have jurisdiction to
address the appeal, and are bound by Gundy in our interpretation of the Georgia
burglary statute. We therefore deny the petition.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
The immigration judge found Mr. Pruteanu to be removable after
determining that his Georgia burglary convictions qualified as aggravated felonies
under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §
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1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”). The INA defines an aggravated felony as “a
theft offense (including receipt of stolen property) or burglary offense” for which
the term of imprisonment is at least one year. See INA § 101(a)(43)(G), 8 U.S.C.
§ 1101(a)(43)(G). The BIA also held that Mr. Pruteanu’s convictions constituted
burglary offenses and were aggravated felonies under INA § 101(a)(43)(G), thus
rendering him removable under INA § 237(a)(2)(A)(iii).
II
Questions about our subject matter jurisdiction are reviewed de novo. See
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). On the merits, we
review conclusions of law de novo, and we evaluate factual determinations under
the substantial evidence test. See Gonzalez, 820 F.3d at 403. The determination of
whether Mr. Pruteanu’s burglary convictions qualify as aggravated felonies is thus
subject to de novo review. See Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176
(11th Cir. 2016). We review only the BIA’s decision as the final judgment
because the BIA did not expressly adopt the immigration judge’s reasoning. See
Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
III
First, we must examine our jurisdiction in response to the mootness issue
raised by the government on appeal. We have jurisdiction to review final orders of
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removal which implicate constitutional questions or questions of law. See Donawa
v. U.S. Att’y Gen., 735 F.3d 1275, 1279 (11th Cir. 2013); REAL ID Act §
106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D). Additionally, we have jurisdiction to
review the BIA’s determination of an alien’s removability based on its assessment
that the alien was convicted of an aggravated felony, even in cases where the alien
conceded removability on other grounds, where those other grounds do not
preclude requesting discretionary cancellation of removal. See Carachuri-Rosendo
v. Holder, 560 U.S. 563, 566, 571 (2010); Donawa, 735 F.3d at 1279. If we were
to determine that the BIA erred in its assessment that a conviction qualified as an
aggravated felony, our ruling would not be advisory because it would allow the
alien to petition the Attorney General for discretionary cancellation of removal.
See Donawa, 735 F.3d at 1283-84.
Because only the aggravated felony charge prevented Mr. Pruteanu from
seeking discretionary cancellation of removal from the Attorney General, despite
the fact that Mr. Pruteanu conceded removability on alternate grounds, we have
jurisdiction to consider the legal question of whether Mr. Pruteanu’s convictions
qualified as aggravated felonies. Id.
IV
The second issue before us is whether Mr. Pruteanu’s Georgia burglary
convictions qualify as “burglary offenses” and thus aggravated felonies, as the BIA
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determined. Mr. Pruteanu argues that the “locational” element of Georgia Official
Code § 16-7-1 sweeps more broadly than that of the generic burglary statute, and
that the statute is indivisible. He argues that the BIA should have applied the
categorical approach to the statute and found the Georgia offense broader than the
generic burglary offense. This finding of non-equivalence would mean his Georgia
burglary conviction would not qualify as a conviction for the generic offense of
burglary and would not constitute an aggravated felony. 1
In determining whether an offense of conviction constitutes an aggravated
felony under the INA, we must employ a categorical approach by examining the
statute defining the crime of conviction, rather than the specific facts underlying
the crime. See Kawashima v. Holder, 565 U.S. 478, 483 (2012). Here, the Georgia
burglary statute, O.C.G.A. § 16-7-1, must be compared to and must match the
federally defined offense of burglary to qualify as a “burglary offense” for the
purposes of the INA.
At the time of Mr. Pruteanu’s conviction in 2005, the Georgia statute stated:
A person commits the offense of burglary when, without authority and
with the intent to commit a felony or theft therein, he enters or
1
Mr. Pruteanu also argues that the Georgia burglary statute allows a prosecutor to convict
without proving the “entry” element of the generic burglary offense. This argument fails based
on Georgia law. In Georgia, unauthorized entry is an essential element which the state must
prove. See Caldwell v. State, 357 S.E.2d 845, 846-47 (Ga. Ct. App. 1987). Mr. Pruteanu’s
arguments to the contrary misread the case law. Although juries are permitted to “infer” entry
based on circumstantial evidence of possession of stolen goods, this inference does not relieve
the prosecutor of proving “entry” beyond a reasonable doubt. Oliver v. State, 581 S.E.2d 538,
542 (Ga. 2003).
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remains within the dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure designed for use as the
dwelling of another or enters or remains within any other building,
railroad car, aircraft, or any room or any part thereof....
Gundy, 842 F.3d at 1164. “The generic, contemporary definition of burglary
consists of these elements: (1) an unlawful or unprivileged entry into, or remaining
in, (2) a building or other structure, (3) with intent to commit a crime therein.”
Gundy, 842 F.3d at 1164.
We recently examined § 16-7-1 in Gundy and concluded that the locational
elements in the statute were divisible, permitting use of the modified categorical
approach to assess the basis of the defendant’s conviction. See Gundy, 842 F.3d at
1168-69. The panel’s holding in Gundy is binding on all subsequent panels unless
and until it is overruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc. See United States v, Archer, 531 F.3d 1347,
1352 (11th Cir. 2008).
Although the BIA based its decision on Mathis v. United States, 136 S. Ct.
2243 (2016) – because Gundy had not yet been decided – the BIA reached the
same conclusion as the Gundy panel did one month later – that “the plain text of
the Georgia statute has three subsets of different locational elements, stated in the
alternative and in the disjunctive . . . effectively creating several different crimes.”
Gundy, 842 F.3d at 1167. The BIA, like the Gundy panel, then applied the
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modified categorical approach in determining that the defendant’s prior burglary
convictions matched the generic definition of burglary.
The BIA’s interpretation of § 16-7-1 in Mr. Pruteanu’s case aligns with our
precedent, meaning that the use of modified categorical approach is appropriate. So
we must assess whether Mr. Pruteanu’s conviction matches the generic burglary
definition. The record reflects that Mr. Pruteanu pled guilty to the three counts of
the indictment, which charged him with “unlawfully without authority and with the
intent to commit a theft therein, enter[ing] a building under construction, to wit; the
house located at . . . .” Because the facts underlying his conviction fall squarely
within the generic burglary definition, Mr. Pruteanu is removable as an aggravated
felon based on his burglary convictions, and he is therefore ineligible for
discretionary relief from removal proceedings. See Gundy, 842 F.3d at 1168-69.
V
Because the BIA’s conclusion about Mr. Pruteanu’s convictions is consistent
with Gundy, we deny the petition.
PETITION DENIED.
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