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[DO NOT PUBLISH]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
____________________
No. 21-11131
Non-Argument Calendar
____________________
WILMER DE JESUS CRUZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A099-255-306
____________________
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2 Opinion of the Court 21-11131
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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21-11131 Opinion of the Court 3
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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4 Opinion of the Court 21-11131
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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21-11131 Opinion of the Court 5
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.