Wilmer De Jesus Cruz v. U.S. Attorney General, 21-11131

In Sept. 2017 Cruz was convicted in North Carolina of felony breaking and entering and felony larceny and received a consolidated sentence of 8–19 months. The sentencing court made no written findings, stating the term was within the presumptive range.
In Oct. 2019 DHS initiated removal proceedings charging Cruz as removable as an aggravated felon based on the breaking-and-entering conviction (8 U.S.C. § 1227(a)(2)(A)(iii)).
Before the BIA Cruz argued that, under North Carolina precedent (Moore, Wortham), a consolidated sentence without written findings makes it impossible to determine how much of the imposed term is attributable to each separate conviction.
The BIA relied solely on State v. Skipper, treating the consolidated sentence as applying to all convictions, and concluded Cruz was ineligible for cancellation of removal as an aggravated felon.
The Government conceded the BIA failed to give reasoned consideration to the conflicting North Carolina authorities and asked for remand for the BIA to explain its Skipper-based reasoning.
The Eleventh Circuit granted Cruz's petition, vacated the BIA decision, and remanded for the BIA to engage the parties and relevant caselaw and determine whether the breaking-and-entering conviction carried a term of imprisonment of at least one year.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a consolidated sentence in NC can be treated as the sentence "actually imposed" for each conviction for aggravated-felony purposes (i.e., whether B&E had a ≥1 year term)	Consolidation without written findings makes attribution to each count indeterminate (Moore, Wortham); Skipper does not establish automatic equivalence	BIA relied on Skipper: the consolidated sentence applies to all convictions in the consolidated judgment	Court found BIA did not address contrary NC authority and remanded for the BIA to determine whether the B&E conviction carried a ≥1 year sentence
Whether the BIA provided reasoned consideration to conflicting NC authorities	BIA ignored controlling contrary authorities and failed to analyze the parties' arguments	BIA cited Skipper but did not engage the contrary line of cases	Court held the BIA failed to give reasoned consideration and remanded for further explanation
Whether the court should decide the merits or remand to the agency	Remand appropriate so the agency can resolve state-law sentencing attribution and apply immigration law to the facts	Government conceded remand and requested the BIA address the issue	Court remanded, citing principle that matters primarily in agency hands warrant remand (Orlando Ventura)

State v. Skipper, 715 S.E.2d 271 (N.C. Ct. App. 2011) (addressing effect of consolidated judgments on sentencing attribution)
State v. Moore, 395 S.E.2d 124 (N.C. 1990) (consolidated sentencing without findings can make attribution indeterminate)
State v. Wortham, 351 S.E.2d 294 (N.C. 1987) (similar rule on consolidation and inability to apportion sentence)
United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) ("aggravated felony is defined by the sentence actually imposed")
Accardo v. U.S. Att'y Gen., 634 F.3d 1333 (11th Cir. 2011) (de novo review whether conviction qualifies as an aggravated felony)
I.N.S. v. Orlando Ventura, 537 U.S. 12 (2002) (courts should remand to agencies for matters placed primarily in agency hands)
Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860 (11th Cir. 2018) (remand required where BIA did not give reasoned consideration)
United States v. Davis, 720 F.3d 215 (4th Cir. 2013) (discusses distinctions between consolidated and concurrent sentences)