Talamantes-Enriquez v. U.S. Attorney Gen.

• Decision Date: 09 September 2021
• Docket Number: No. 19-15080,19-15080
• Parties: Alfredo Nicolas TALAMANTES-ENRIQUEZ, a.k.a. Alfredo Talamantes, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

12 F.4th 1340

Alfredo Nicolas TALAMANTES-ENRIQUEZ, a.k.a. Alfredo Talamantes, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-15080

United States Court of Appeals, Eleventh Circuit.

September 9, 2021

Ashley Deadwyler-Heuman, Deadwyler-Heuman Law Firm, LLC, Macon, GA, for Petitioner.

Elizabeth Fitzgerald-Sambou, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

Alfredo Talamantes-Enriquez petitions for review of the Board of Immigration Appeals’ dismissal of his appeal from an immigration judge's removal order. That order was based on the IJ's determination that he is ineligible for cancellation of removal because he has been convicted of an "aggravated felony" as the Immigration and Naturalization Act defines the term.

I. BACKGROUND AND PROCEDURAL HISTORY

Talamantes is a native and citizen of Mexico who entered the United States without inspection in 1994. In 2017 the Department of Homeland Security finally initiated removal proceedings against him. After a variety of proceedings that don't matter to the issue raised in this appeal, the question of whether Talamantes would be removed came down to whether he had been convicted of an "aggravated felony" as the INA defines that term.

On that issue, the IJ had before him the "accusation" and "final disposition" for each of two Georgia simple battery convictions. The first one was from February 2001. The accusation that led to the conviction charged Talamantes with simple battery under " O.C.G.A. Section 16-5-23," alleging that he had "cause[d] physical harm to [two women] by striking them in the face." After pleading nolo contendere, Talamantes was convicted and "sentenced to confinement for a period of 12 mo[nth]s," which he was allowed to serve on probation. The sentence order stated if Talamantes violated the terms of probation the state court could revoke probation and "order the execution" of the original sentence of confinement.

The second conviction was from April 2001. The accusation that led to it charged Talamantes with simple battery under " O.C.G.A. Section 16-5-23," alleging that he "cause[d] physical harm to [a woman] by throwing books at her and leaving visible scratches on her arm." After pleading guilty, he was convicted and "sentenced to confinement for a period of 12 mo[nth]s," which he was allowed to serve on probation. The sentence order stated if Talamantes violated the terms of probation the state court could revoke probation and "order the execution" of the original sentence of confinement. Just like the sentence order had in the first case.

Talamantes applied for cancellation of removal, among other relief. The IJ denied his application and ordered him removed based on the two Georgia battery convictions. It determined that both of them were aggravated felonies under the INA because they met the components of the applicable statutory definition: the convictions were for a crime of violence and, for each, Talamantes had been sentenced to a term of imprisonment of at least one year. Talamantes’ attorney told the IJ that she was seeking "clarification or modification orders" from a Georgia state court about the sentences imposed on Talamantes, but the IJ determined that clarification wasn't necessary because the sentence orders were "clear, unambiguous and express on their face."

Talamantes appealed to the BIA. While that appeal was pending, a Georgia state judge granted Talamantes’ motions for clarification and issued an order in each of the two simple battery cases that purported to "clarify" the sentences imposed. Each of those two orders contained this operative language:

Standard sentencing forms were used in imposing [Talamantes’] sentence of probation; however, the Court's standard form language made it seem like [Talamantes’] sentence was a period of confinement when in fact it was only a sentence of probation.

Therefore, in light of the aforementioned mischaracterization of [Talamantes’] sentence, the Court hereby clarifies that the sentence imposed in this case ... was a sentence of twelve months probation, and none of that sentence was to be served in confinement insofar as he did not violate probation, which he did not.

The orders were prepared by Talamantes’ attorney. The judge who signed them was not the judge who had sentenced Talamantes in either case.

Relying on the "clarification" orders, Talamantes asked the BIA to remand his case to the IJ. The BIA granted the request, remanding the case to the IJ for consideration of the impact, if any, of the orders on the pending immigration case. The IJ concluded that the orders had no impact and that Talamantes’ simple battery convictions had resulted in sentences that were clearly for at least one year of imprisonment for INA purposes. The IJ ordered Talamantes removed.

Talamantes again appealed to the BIA. This time the BIA dismissed his appeal. It did so after determining that Talamantes’ two simple battery convictions were for crimes of violence and that his sentences were each for a term of imprisonment of at least one year. Talamantes timely petitioned this Court for review.

II. DISCUSSION

Talamantes contends the BIA erred in determining that his Georgia simple battery convictions were for aggravated felonies under the INA. His argument has two parts: that the simple battery convictions were not for "crimes of violence" under the INA's definition of that term; and, even if they were, neither sentence was for at least one year of imprisonment.

"We review questions of law de novo , including whether a conviction qualifies as an aggravated felony under the Immigration and Nationality Act." Herrera v. U.S. Att'y Gen., 811 F.3d 1298, 1300 (11th Cir. 2016) (quotation marks omitted and alteration adopted). We don't have jurisdiction to review the BIA's discretionary decisions about removal, but we do have jurisdiction to review questions of law. See, e.g., Germain v. U.S. Att'y Gen., No. 20-11419, 9 F.4th 1319, 1323 (11th Cir. Aug. 18, 2021) ("[W]hen an alien asks us to review a denial of cancellation of removal, we can review only constitutional and legal questions.").

"Any alien who is convicted of an aggravated felony at any time after admission" can be removed. 8 U.S.C. § 1227(a)(2)(A)(iii). Likewise, any alien who has been convicted of an aggravated felony is ineligible for cancellation of removal. See id. § 1229b(b)(1)(C); see also Gordon v. U.S. Att'y Gen., 962 F.3d 1344, 1347 (11th Cir. 2020) ("If [the petitioner's] conviction qualifies as an aggravated felony, he is both removable and ineligible for cancellation of removal ...."). The issue is whether Talamantes is ineligible for cancellation of removal. He bears the burden of proving that he is not. See Pereida v. Wilkinson, ––– U.S. ––––, 141 S. Ct. 754, 760–61, 209 L.Ed.2d 47 (2021).

Talamantes’ ineligibility for cancellation turns on whether he was convicted of an "aggravated felony." The term is defined by the INA to include "a crime of violence ... for which the term of imprisonment [was] at least one year." 8 U.S.C. § 1101(a)(43)(F) (footnote omitted). It only takes one aggravated felony to render a petitioner ineligible but, as we will explain, each of Talamantes’ simple battery convictions is an aggravated felony.

A. Crime of Violence

An aggravated felony under the INA must be a "crime of violence." The applicable statutory definition of 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) ; see also 8 U.S.C. § 1101(a)(43)(F) (stating that "a crime of violence" is "as defined in section 16 of Title 18"). The key term in that definition is "physical force." The Supreme Court has defined that term as used in an identically worded statutory definition of a "violent felony." See Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting 18 U.S.C. § 924(e)(2)(B)(i) ). The Court defined "physical force" to mean "violent force — that is, force capable of causing physical pain or injury to another person." Id.; see also Stokeling v. United States, ––– U.S. ––––, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019) ("In the wake of [Curtis] Johnson, the Court has repeated its holding that ‘physical force’ means ‘force capable of causing physical pain or injury.’ ") (quotation marks omitted). The Curtis Johnson definition of "physical force" applies to § 16(a). See Lukaj v. U.S. Att'y Gen., 953 F.3d 1305, 1312 (11th Cir. 2020). Which channels the physical force question into whether Talamantes’ Georgia convictions for simple battery involved "force capable of causing physical pain or injury to another person." Id.

To answer that question "we apply a categorical or modified categorical approach, depending on the statutory scheme." Guillen v. U.S. Att'y Gen., 910 F.3d 1174, 1180 (11th Cir. 2018) (quotation marks omitted). Under the categorical approach, we do not consider the underlying facts of the particular crime, but only "whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony." Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quotation marks omitted). A state statute categorically fits if its "elements are the same as, or narrower than, those of the generic [federal] offense." Spaho v. U.S. Att'y Gen., 837 F.3d 1172, 1177 (11th Cir. 2016) (quoting Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). The required approach is an elements-to-elements comparison, not a facts-to-elements comparison.

Sometimes we use a "modified" categorical approach. We do that when the statute that the defendant was...