Cyril Dane Flores v. U.S. Attorney General
21-10514
| 11th Cir. | Sep 23, 2021Background
- Cyril Dane Flores, a lawful permanent resident from the Philippines, faced removal proceedings after DHS charged him with a drug-related deportable offense.
- Flores had a prior Georgia conviction for aggravated assault under O.C.G.A. § 16-5-21(a)(2); the judgment shows a five-year probation sentence.
- He applied for cancellation of removal, arguing his Georgia aggravated assault is not an aggravated felony because it can be committed recklessly and he received no year-or-more term of incarceration.
- The government argued the conviction was an aggravated felony and that the five-year sentence could count as confinement.
- The IJ denied cancellation; the BIA dismissed Flores’s appeal, concluding (1) Flores had been sentenced to at least one year and (2) the Georgia aggravated assault qualified as an aggravated felony, relying on this court’s Morales-Alonso decision.
- The Eleventh Circuit granted review, applied Borden and Moss, and held Georgia aggravated assault under § 16-5-21(a)(2) can be committed recklessly and therefore is not a “crime of violence” under 18 U.S.C. § 16(a); the court granted the petition and remanded for the BIA to exercise its discretion on cancellation.
Issues
| Issue | Flores' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Flores’s Georgia aggravated-assault conviction is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) (i.e., a "crime of violence" under 18 U.S.C. § 16(a)) | The offense can be committed with recklessness, so it is not a § 16(a) crime of violence and thus not an aggravated felony | The conviction qualifies as a § 16(a) crime of violence and therefore an aggravated felony | Held for Flores: because the offense can be committed recklessly, it is not a § 16(a) crime of violence and not an aggravated felony |
| Whether Flores was sentenced to a term of imprisonment of one year or more for § 1101(a)(43)(F) purposes | Probation-only sentence does not constitute a year-or-more confinement for aggravated-felony purposes | The five-year sentence counts as a sentence of confinement of one year or more | Court did not decide this issue because it resolved eligibility on the aggravated-felony question |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (holding crimes punishable by recklessness do not qualify as violent felonies under ACCA)
- United States v. Moss, 920 F.3d 752 (11th Cir. 2019) (concluding Georgia aggravated assault can be committed recklessly and thus does not qualify as a violent felony under ACCA)
- United States v. Morales-Alonso, 878 F.3d 1311 (11th Cir. 2018) (applied by BIA below to treat Georgia aggravated assault as an aggravated felony)
- Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013) (stating whether an offense is an "aggravated felony" is a question of law reviewed de novo)