12 F.4th 1340
11th Cir.2021Background
- Talamantes, a Mexican national, was placed in removal proceedings in 2017 and sought cancellation of removal.
- He had two Georgia simple-battery convictions from 2001: one for striking two women in the face; one for throwing books and leaving visible scratches. He pled nolo contendere/guilty in each case.
- Each sentence form recited "12 months confinement" but permitted service on probation and authorized execution of the confinement if probation was revoked.
- After the IJ found both convictions were aggravated felonies (crime of violence + term of imprisonment >= 1 year) and denied relief, counsel obtained state-court "clarification" orders years later purporting to recharacterize the sentences as straight probation.
- The BIA remanded for consideration of the clarification orders; the IJ and then the BIA concluded the clarifications did not change the federal-law effect of the original sentence orders and dismissed the appeal.
- Talamantes petitioned the Eleventh Circuit, which reviewed the legal issues de novo and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Georgia simple-battery convictions are "crimes of violence" under the INA (8 U.S.C. § 1101(a)(43)(F) / 18 U.S.C. § 16(a)) | Talamantes: convictions do not qualify as crimes of violence. | Government: statute is divisible; charging documents show convictions under § 16-5-23(a)(2) (intentional causation of physical harm), which requires force capable of causing pain or injury. | Court: § 16-5-23 is divisible; Shepard documents show (a)(2) convictions; (a)(2) is categorically a crime of violence. |
| Whether the prior sentences were "terms of imprisonment" of at least one year for INA purposes (despite probation) | Talamantes: state-court clarification orders show these were straight probation, not sentences of imprisonment. | Government: original sentence forms imposed 12 months confinement (suspended to probation); federal law treats that as a term of imprisonment; state clarifications entered years later by a different judge are not controlling. | Court: followed Eleventh Circuit precedent (Ayala-Gomez, Garza-Mendez); original sentences count as >= 1 year; state clarification orders unpersuasive. |
Key Cases Cited
- Curtis Johnson v. United States, 559 U.S. 133 (Sup. Ct.) (defines "physical force" as force capable of causing pain or injury)
- Stokeling v. United States, 139 S. Ct. 544 (Sup. Ct.) (reaffirms Curtis Johnson definition)
- Hernandez v. U.S. Attorney General, 513 F.3d 1336 (11th Cir.) (holds § 16-5-23(a)(2) requires physical contact that inflicts pain or injury and is a crime of violence)
- Garza-Mendez v. United States, 735 F.3d 1284 (11th Cir.) (sentence reciting confinement but served on probation counts as term of imprisonment; state clarification rejected)
- Ayala-Gomez v. United States, 255 F.3d 1314 (11th Cir.) (federal definition of term of imprisonment includes confinement excused in whole or in part)
- Pereida v. Wilkinson, 141 S. Ct. 754 (Sup. Ct.) (alien bears burden to show conviction does not make him ineligible for relief)
- United States v. Gandy, 917 F.3d 1333 (11th Cir.) (explains application of the modified categorical approach and when Shepard documents "speak plainly")