USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 1 of 10 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-10514 Non-Argument Calendar ____________________ CYRIL DANE FLORES, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A071-032-499 ____________________ USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 2 of 10 2 Opinion of the Court 21-10514 Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: The government moved for a panel rehearing of our opin- ion that issued on September 23, 2021. We grant the motion for panel rehearing, vacate our original opinion in this appeal, and sub- stitute in its place the following opinion. Cyril Dane Flores seeks review of the Board of Immigration Appeals’ order dismissing his appeal from the immigration judge’s denial of his application for cancellation of removal. The BIA con- cluded that Flores was disqualified from seeking cancellation of re- moval because of his aggravated assault conviction, which it con- sidered an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Sec- tion 1101(a)(43)(F) states that an aggravated felony includes “a crime of violence” for which the term of imprisonment is at least one year. Upon review, we conclude that the BIA erred in its ele- ments clause analysis. Because the statute of conviction is divisible, the BIA erred by not applying the modified categorical approach to Georgia’s aggravated and simple assault statutes. Accordingly, we remand to the BIA so it can apply the modified categorical ap- proach in the first instance and determine whether Flores’s crime satisfies the “crime of violence” element of the definition of aggra- vated felony. USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 3 of 10 21-10514 Opinion of the Court 3 I. Flores, a native and citizen of the Philippines, is a lawful per- manent resident of the United States. Last year, the Department of Homeland Security served him with a notice to appear, which charged him as removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for being a noncitizen who was convicted of an of- fense related to a federally controlled substance. Flores had also previously entered a guilty plea in Georgia state court for aggra- vated assault under O.C.G.A. § 16-5-20(a)(2), for which he was sen- tenced to five years confinement which he was allowed to serve on probation. Flores filed an application for cancellation of removal. He argued in support of that application that he was eligible for relief, in part, because his Georgia aggravated assault conviction was not an aggravated felony for immigration purposes. That was so, he argued, because it could be committed with the mens rea of reck- lessness, and he was not sentenced to incarceration for a year or more. The government argued that Flores was convicted of an ag- gravated felony for immigration purposes because aggravated as- sault is a crime of violence for which Flores was sentenced to five years’ confinement. The government provided the judgment …
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