Alfredo Nicolas Talamantes-Enriquez v. U.S. Attorney General

USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 1 of 24

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-15080
________________________

Agency No. A076-485-882

ALFREDO NICOLAS TALAMANTES-ENRIQUEZ,
a.k.a. Alfredo Talamantes,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(September 9, 2021)

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
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 2 of 24

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,”

2
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 3 of 24

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:

3
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 4 of 24

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.

4
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 5 of 24

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, 2021 WL

3659299, at *3 (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

5
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 6 of 24

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,

141 S. Ct. 754, 760–61 (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 (2010)

(interpreting 18 U.S.C. § 924(e)(2)(B)(i)). The Court defined “physical force” to

6
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 7 of 24

mean “violent force — that is, force capable of causing physical pain or injury to

another person.” Id.; see also Stokeling v. United States, 139 S. Ct. 544, 553

(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 (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) (quotation marks omitted) (quoting Descamps v. United States, 570

7
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 8 of 24

U.S. 254, 257 (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 convicted of violating is “divisible into alternative

crimes” and has different phrases or subsections under which he may have been

convicted. Id.; see also Pereida, 141 S. Ct. at 763. If that’s the kind of statute we

are dealing with, we have to determine which phrase or subsection within the

statute served as the basis for the defendant’s conviction. See Spaho, 837 F.3d at

1177. After determining that, we isolate the statutory phrase or subsection and its

elements, and apply the categorical approach to them, comparing those elements to

the required ones. Id.

To determine whether we are restricted to the categorical approach or can

apply the modified categorical approach, we must first determine if Georgia’s

simple battery statute, O.C.G.A. § 16-5-23, is divisible. See Spaho, 837 F.3d at

1176 (noting that to assess whether a “state conviction was an aggravated felony

conviction, the Board first had to decide whether [the statute] is divisible and thus

subject to the modified categorical approach instead of the categorical approach”).

Before doing that ourselves, we pause to discuss whether it matters to our

course of action that the Board itself did not make a divisibility determination.

When the BIA has not addressed an issue, we typically follow the “ordinary

8
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 9 of 24

remand rule,” which provides that “the proper course, except in rare circumstances,

is to remand.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007)

(quotation marks omitted) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). But

when the “rare” circumstance is that the “issue is legal, not factual,” id. at 1330

(quotation marks omitted), following the “ordinary remand rule” would not be

ordinary, and the reasons for following it lose force: administrative law generally

justifies the deference we must give to agencies as being based on agency

expertise, cf. id. (noting that we could decide a legal issue without BIA input

because it was “not an inquiry upon which the BIA could ‘bring its expertise to

bear . . . evaluate the evidence . . . make an initial determination [and, thereby] help

a court later determine whether its decision exceeds the leeway that the law

provides’”) (alterations in original) (quoting Gonzales v. Thomas, 547 U.S. 183,

186–87 (2006)).

The question is not one that lends itself to agency expertise but instead

involves a purely legal question, which falls within the expertise of federal courts.

Not only that, but we review de novo legal questions, including divisibility and

application of the modified categorical approach. See George v. U.S. Att’y Gen.,

953 F.3d 1300, 1303–04 (11th Cir. 2020) (labeling the BIA’s determination of

which part of a divisible statute the petitioner had been convicted under as a “legal

conclusion[]” and reviewing it de novo); Spaho, 837 F.3d at 1176–79 (reviewing

9
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 10 of 24

de novo the BIA’s application of the modified categorical approach); Donawa v.

U.S. Att’y Gen., 735 F.3d 1275, 1279–81 (11th Cir. 2013) (reviewing divisibility

de novo as a question of law). Remanding pure law issues to an administrative

agency risks an “idle and useless formality” of a proceeding. NLRB v. Wyman-

Gordon Co., 394 U.S. 759, 766 n.6 (1969). After all, administrative law “does not

require that we convert judicial review of agency action into a ping-pong game.”

Id. Because the application of the modified categorical approach is a legal issue,

the “ordinary remand rule” does not apply here.

Turning back to our divisibility analysis, a statute is divisible if it “lists a

number of alternative elements that effectively create several different crimes.”

Guillen, 910 F.3d at 1180 (quotation marks omitted). For that reason, “[i]n

determining divisibility, we focus primarily on the statutory text.” Spaho, 837

F.3d at 1177. The text of § 16-5-23 provides:

(a) A person commits the offense of simple battery when he or she
either:
(1) Intentionally makes physical contact of an insulting or
provoking nature with the person of another; or
(2) Intentionally causes physical harm to another.

Ga. Stat. § 16-5-23 (emphasis added). Alternative sets of elements usually signal

divisibility. See generally United States v. Howard, 742 F.3d 1334, 1346–49 (11th

Cir. 2014) (noting and explaining the difference for this purpose between

“illustrative examples” and “alternative elements”). But alternative sets of

10
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 11 of 24

“various factual means of committing a single element” usually do not. See

generally Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (explaining for

this purpose that a list of illustrative examples that “spells out various factual ways

of committing some component of the offense” is a list of “disjunctive factual

scenarios rather than separate elements”). Section 16-5-23 lays out two sets of

alternative elements that effectively define different crimes: one crime of insulting

contact battery, and one crime of physically harmful battery. Because it does, the

statutory text demonstrates divisibility. Cf. United States v. Gandy, 917 F.3d

1333, 1339 (11th Cir. 2019) (holding that Florida’s simple battery statute, Fla. Stat.

§ 784.03(1)(a), which contains two numbered phrases — “touches or strikes

another person” and “[i]ntentionally causes bodily harm to another person” — that

are separated by the word “or,” is divisible).

As this discussion demonstrates, on divisibility questions “we take guidance

from state court decisions,” Spaho, 837 F.3d at 1177, and “when state law provides

a definitive answer, the divisibility inquiry is a straightforward one,” Guillen, 910

F.3d at 1184. Georgia courts have pointed out that § 16-5-23 includes a distinction

between two kinds of contact, with (a)(1) covering “intentional contact of an

insulting or provoking nature, contemplating a touching which does not injure but

which is insulting,” and (a)(2) covering “the intentional causation of physical

harm, a touching which goes beyond insult to the infliction of pain.” Lyman v.

11
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 12 of 24

State, 374 S.E.2d 563, 565 (Ga. Ct. App. 1988); see also State v. Randle, 781

S.E.2d 781, 784 (Ga. 2016) (noting that both Georgia’s legislature and Georgia’s

appellate courts have recognized this).

Because of the difference between the elements of § 16-5-23(a)(1) and

(a)(2), it is error for a trial court to instruct the jury on simple battery based on

“insulting or provoking” contact if the defendant was actually charged with simple

battery based solely on “physical harm,” unless the jury is also given a limiting

instruction. See, e.g., Hammonds v. State, 587 S.E.2d 161, 163 (Ga. Ct. App.

2003) (noting that “[w]hen an indictment specifies the commission of a crime by

only one of several methods possible under the statute, but the court charges the

entire Code section, the deviation may violate due process unless a limiting

instruction is given”); Lyman, 374 S.E.2d at 565 (“[I]t is reversible error to instruct

the jury that an offense may be committed in more than one manner where only

one manner is alleged in the indictment and no remedial instructions are given to

limit the jury’s consideration to that particular manner.”); Owens v. State, 326

S.E.2d 509, 512 (Ga. Ct. App. 1985). Simple battery based on “physical contact of

an insulting nature . . . must be charged specifically.” Lyman, 374 S.E.2d at 565.

That is true because the statute is divisible. See Guillen, 910 F.3d at 1183 (holding

a Florida drug possession statute was divisible as to particular substances in part

because “Florida’s District Courts of Appeal have overturned convictions because

12
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 13 of 24

the substance named in the charging document differed from the one shown to

have been involved in the offense”); United States v. Gundy, 842 F.3d 1156, 1168

(11th Cir. 2016) (“The fact that under Georgia law the indictment must charge the

type of place or location with such specificity further demonstrates that § 16-7-1’s

statutory listing of alternative locations for committing a burglary constitutes an

enumeration of alternative elements.”).

And because the two provisions of § 16-5-23(a) are divisible, a Georgia

defendant can be convicted for the same conduct of two separate counts of simple

battery, one based on (a)(1) and the other based on (a)(2). See Eberhart v. State,

526 S.E.2d 361, 362–64 (Ga. Ct. App. 1999); cf. Mai v. State, 577 S.E.2d 288, 289

(Ga. Ct. App. 2003). That is possible only because of divisibility. See Guillen,

910 F.3d at 1182 (noting that such a situation “necessarily implies that the statute

is divisible: a defendant cannot be convicted and sentenced for two offenses with

identical elements arising from the same facts”); Gordon, 962 F.3d at 1349. For all

of these reasons, the statutory text and state law make it clear that § 16-5-23(a) is

divisible.

Given the divisibility of § 16-5-23(a), we can and do apply the modified

categorical approach to determine whether Talamantes was convicted under § 16-

5-23(a)(1) or (a)(2). That involves examining the charging documents, plea

agreements and colloquies, and comparable judicial records — documents

13
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 14 of 24

generally known as “Shepard documents,” a name borrowed from the Supreme

Court decision that approved their use. See, e.g., Gandy, 917 F.3d at 1339 (citing

Shepard v. United States, 544 U.S. 13, 20–21, 26 (2005)). The question is whether

the Shepard documents for Talamantes’ simple battery convictions show that he

“necessarily” was convicted under § 16-5-23(a)(1) or (a)(2). See id. at 1340. We

can conclude whether he was convicted under a particular subsection if the

Shepard documents “speak plainly” to it. Id. (quoting Mathis, 136 S. Ct. at 2257).

They do in this case.

As we have iterated and reiterated, Georgia law establishes a difference in

the simple battery statute between contact causing physical harm and contact that

is merely insulting or provoking. See supra at 12–13. And, also as discussed, that

difference matters for charging purposes — an accusation alleging simple battery

based on only § 16-5-23(a)(2)’s “physical harm” language cannot support a

conviction for simple battery under § 16-5-23(a)(1)’s “insulting or provoking”

contact language. See supra at 12–13. It matters here because the charging

documents underlying both of Talamantes’ simple battery convictions allege the

elements of § 16-5-23(a)(2) but not the elements of (a)(1). That is proof positive

he was convicted under subsection (a)(2), not (a)(1).

While the formal accusation underlying the February 2001 conviction does

not explicitly state that Talamantes was charged under subsection (a)(2), the

14
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 15 of 24

allegations in the text of it make clear that he was. He was charged with simple

battery under “O.C.G.A. Section 16-5-23” for “unlawfully[] caus[ing] physical

harm to [two women] by striking them in the face.” The accusation says nothing

about “physical contact of an insulting or provoking nature.” The same is true of

the accusation underlying the April 2001 conviction. It says nothing about

“insulting or provoking” contact but charges Talamantes with simple battery under

“O.C.G.A. Section 16-5-23” for “unlawfully[] caus[ing] physical harm to [a

woman] by throwing books at her and leaving visible scratches on her arm.”

The formal accusations on which Talamantes’ two simple battery

convictions were based “speak plainly,” Gandy, 917 F.3d at 1340, to the fact that

he was convicted of violating § 16-5-23(a)(2), not (a)(1). Given the allegations in

the two accusations, the (a)(2) crime is all that he could have been convicted of.

See Lyman, 374 S.E.2d at 565 (holding that an accusation alleging that the

defendant “intentionally cause[d] physical harm to the person of [the victim], by

striking [her] on the head with a stack of paper bags” had charged only a violation

of § 16-5-23(a)(2) and that it was error to instruct the jury that the defendant could

be convicted of simple battery based on “offensive contact”) (second and third

brackets in original); Owens, 326 S.E.2d at 512–13 (finding reversible error where

the indictment charged only that the defendant “intentionally cause[d] physical

harm to [the victim] by grabbing her about the neck and choking her” but the court

15
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 16 of 24

instructed the jury on both physical harm battery under § 16-5-23(a)(2) and

insulting or provoking contact battery under § 16-5-23(a)(1) without giving a

limiting instruction).

Having decided that Talamantes was convicted under O.C.G.A. § 16-5-

23(a)(2), we must now decide whether the crime defined in that subsection is

categorically a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C.

§ 16. That is easy, because we have already held it is. See Hernandez v. U.S.

Att’y Gen., 513 F.3d 1336, 1340 (11th Cir. 2008). In doing so, we stressed that the

“simple battery conviction required more than simple physical contact with the

victim; it required intentionally causing physical harm to the victim through

physical contact.” Id. And we emphasized that Georgia courts had interpreted

§ 16-5-23(a)(2) “as requiring actual physical contact that inflicts pain or injury.”

Id. Based on that reading of Georgia law and on some of our related precedent

interpreting other statutes, we concluded that a “conviction under § 16-5-23(a)(2)

constitutes a ‘crime of violence.’” Id.1 No Supreme Court decision has abrogated

1
Hernandez cited and discussed United States v. Griffith, 455 F.3d 1339 (11th Cir.
2006), which had held that § 16-5-23(a)(1) is a “misdemeanor crime of domestic violence” under
18 U.S.C. § 922(g), a statute that uses “essentially the same definition of a ‘crime of violence’ as
in 18 U.S.C. § 16(a), the immigration statute at issue here.” Hernandez, 513 F.3d at 1340. And
dicta in Hernandez could be read as suggesting that, based on Griffith, § 16-5-23(a)(1) is a crime
of violence for purposes of the INA. Id. Those parts of Hernandez are only dicta because that
decision involved a conviction under § 16-5-23(a)(2), not (a)(1). See, e.g., Edwards v. Prime,
Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“All statements that go beyond the facts of the
case . . . are dicta.”).

16
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 17 of 24

Hernandez’s holding, and this Court has not done so en banc, so we are bound by

it. See, e.g., United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).

Not only that, but far from abrogating our Hernandez holding, Supreme

Court precedent reinforces, supports, and even compels it. As we’ve mentioned,

the Court has defined “physical force” as “force capable of causing physical pain

or injury to another person.” Curtis Johnson, 559 U.S. at 140. We held in

Hernandez that § 16-5-23(a)(2) is a crime of violence because it requires “actual

physical contact that inflicts pain or injury.” 513 F.3d at 1340. That necessarily

satisfies the Curtis Johnson definition. Cf. United States v. Vail-Bailon, 868 F.3d

1293, 1304 (11th Cir. 2017) (en banc) (“[Florida] felony battery, which includes

the additional element that the touch or strike in fact cause significant physical

injury, necessarily requires the use of force capable of causing pain or injury and

therefore does so qualify [as a violent felony].”).

For all of these reasons, Talamantes’ convictions for simple battery under

O.C.G.A. § 16-5-23(a)(2) are each categorically “crime[s] of violence” for

purposes of 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16.

The continuing validity of Griffith may be up for debate in light of intervening Supreme
Court precedent. See Curtis Johnson, 559 U.S. at 139–43. But the validity of Griffith goes
beyond the scope of this case because Griffith involved a different federal statute, one that is not
before us. Equally beside the present point is Hernandez’s dicta about § 16-5-23(a)(1). Because
Talamantes was charged and convicted solely under subsection (a)(2), that is the only part of
Georgia’s simple battery statute we are, or can be, reviewing.

17
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 18 of 24

B. Term of Imprisonment

To qualify under the INA’s definition of “aggravated felony,” it is not

enough that a prior conviction be a “crime of violence.” It also must have resulted

in the defendant being sentenced to a “term of imprisonment [of] at least one year.”

8 U.S.C. § 1101(a)(43)(F); see also United States v. Guzman-Bera, 216 F.3d 1019,

1020 (11th Cir. 2000) (holding the statute refers to “the sentence actually

imposed,” not just the term of imprisonment the state court is authorized to

impose). Talamantes argues that neither of his two Georgia simple battery

convictions resulted in a term of imprisonment, but instead resulted in sentences of

only “straight probation.” See id. at 1021 (holding that “when a court does not

order a period of incarceration and then suspend it, but instead imposes probation

directly, the conviction is not an ‘aggravated felony’”).

The INA defines a “term of imprisonment” as including “the period of

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” 8 U.S.C. § 1101(a)(48)(B) (emphasis added). And a term of

imprisonment includes “all parts of a sentence of imprisonment from which the

sentencing court excuses the defendant, even if the court itself follows state-law

usage and describes the excuse with a word other than ‘suspend.’” United States v.

Ayala-Gomez, 255 F.3d 1314, 1319 (11th Cir. 2001).

18
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 19 of 24

Our precedent establishes that Talamantes was sentenced to a term of

imprisonment for at least one year for purposes of § 1101(a)(43)(F), even if he was

permitted to serve part or all of that sentence on probation. See id. In addition to

the Ayala-Gomez decision, there is our later decision in United States v. Garza-

Mendez, 735 F.3d 1284 (11th Cir. 2013), which is directly on point and forecloses

Talamantes’ contention.

Garza-Mendez involved a sentence enhancement that depended on the

definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(F). Id. at 1287. The

defendant had a prior Georgia state conviction for what he conceded was a crime

of violence but, like Talamantes, he contended that he had not been sentenced to a

term of imprisonment of at least one year. Id. The trial court had sentenced

Garza-Mendez “to 12 months of confinement in the Gwinnett County

Comprehensive Correctional Complex, credited him 30 hours for time served,

permitted the remainder of the sentence to be served on probation, and fined him

$350.00.” Id. at 1286 (quotation marks omitted). The sentence order stated that if

he violated any of the terms of his probation, the court could revoke it and require

him to complete the “sentence which was originally imposed.” Id. at 1293

(appendix containing the sentence order); see also id. at 1289 (“A portion of a

sentence to be served on probation nevertheless returns the convicted defendant to

prison if probation is violated.”).

19
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 20 of 24

We held in Garza-Mendez that it “could not be any clearer” the defendant

was sentenced to 12 months of “confinement,” and that “was the sentence imposed

irrespective of any suspension of the confinement term” for probation. Id. at 1288

(quotation marks omitted). As a result, we concluded the defendant had been

sentenced to a term of imprisonment of at least a year under § 1101(a)(43)(F).

Garza-Mendez, 735 F.3d at 1289.

There is no daylight between the Georgia sentence imposed on the defendant

in Garza-Mendez and the two Georgia sentences imposed on Talamantes. The

sentencing form that the Georgia trial court used to sentence Garza-Mendez is

substantively the same as the ones the Georgia trial courts used to sentence

Talamantes. If, as we held, the sentence imposed on Garza-Mendez was for 12

months of “confinement,” so were each of the sentences imposed on Talamantes.

It could not be any clearer that what we held “could not be any clearer” in Garza-

Mendez also could not be any clearer in this case: the defendant, there and here,

was sentenced to a term of imprisonment of at least 12 months. Binding precedent

binds, yet again.

Talamantes seeks to escape from the clutches of the Garza-Mendez decision

by arguing that we should rely on the state trial judge’s “clarification” orders,

which were entered years after the fact by a judge who did not sentence him.

Those orders purport to “sentence” Talamantes directly to probation –– straight

20
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 21 of 24

probation instead of to a term of confinement suspended in whole or part in favor

of probation. No escape from Garza-Mendez is possible given that this Court

rejected a materially identical argument in that very case. The defendant there, like

Talamantes here, presented a “clarification” order that stated he had been

sentenced only to probation and not to a period of incarceration that was

suspended. Id. at 1286–87. Our response to that argument was, to put it in the

vernacular, “give us a break.”

We rejected the invitation to take the “clarification” order in Garza-Mendez

at face value, much less to be bound by it. The “clarification” order in that case

came five years after the sentence, id. at 1288; the ones in this case came 17 years

after the sentence. We also pointed out in Garza-Mendez that the judge who

signed the “clarification” order had not been the sentencing judge, and she had

done “nothing more than review [the defendant’s] sentence,” id., something we are

quite capable of doing ourselves. Precisely the same is true in this case. Neither

“clarification” order in this case was issued by the sentencing judge, and the judge

who signed the orders did nothing more than review and interpret another judge’s

sentence order years later, which we can do ourselves.

It didn’t help the defendant in Garza-Mendez that the “clarification order

[was] flatly contrary to the sentencing order,” id. at 1288 n.2, and was done only

strategically to “influence [the defendant’s] federal sentence,” id. at 1288. And it

21
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 22 of 24

doesn’t help Talamantes that each so-called “clarification order” is a thinly veiled

— or more like a buck naked — attempt to affect the result of a federal proceeding

by altering the sentencing judge’s sentence order more than a decade and a half

after the sentence had been served. See id. That won’t work. As we explained in

Garza-Mendez, we are not bound by a state judge’s interpretation of a state court

sentence order because we are dealing with federal law and federal statutes, not

state law and state statutes. Id. at 1289; see also Ayala-Gomez, 255 F.3d at 1319

(“Words in federal statutes reflect federal understandings, absent an explicit

statement to the contrary, even if a state uses the word differently.”). If more

explanation is needed, here it is:

Because this is a federal case for unlawful re-entry into the United
States following deportation and involves the interpretation of . . .
federal statutes, a federal judge is in a better position to interpret the
state-sentence order regarding its effect on [the defendant’s] federal
sentence under federal law than another state judge, who did not impose
his sentence. The original state sentence plainly speaks for itself but
then must be interpreted under federal law in federal court concerning
a federal crime.

Garza-Mendez, 735 F.3d at 1289 (citation omitted); see also Herrera, 811 F.3d at

1301 (“Because words in federal statutes reflect federal understandings, the

statement of the Georgia court in its order of clarification that [the petitioner] was

not sentenced to any confinement was due no weight in his immigration

proceeding.”) (quotation marks and citation omitted; alteration adopted).

22
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 23 of 24

In the Hail Mary part of his argument, Talamantes attempts to persuade us

that instead of following our own precedent we should follow a BIA decision that

purported to be an application of our precedent, Matter of Estrada, 26 I. & N. Dec.

749, 754–56 (B.I.A. 2016). We are not persuaded to do that for several reasons.

There is no reason we should follow an agency decision that says it is interpreting

and applying our precedent, instead of just interpreting and applying our own

precedent our own selves. That is, after all, what we do day in and day out. And

even if we were inclined to have the BIA pinch hit for us, invoking its decision in

Estrada is a swing and a miss for Talamantes. In that case the BIA believed the

state court’s original sentence order was ambiguous and needed clarification. See

id. Neither of the original sentence orders in Talamantes’ two state court

conviction cases is ambiguous. The orders mean what they plainly say.

Finally, the BIA’s Estrada decision is no longer even in the ball game

anyway. The Attorney General has directly overruled it. See Matter of Thomas &

Thompson, 27 I. & N. Dec. 674, 674 (Att’y Gen. 2019) (“I overrule the Board’s

decision[] in . . . Matter of Estrada.”). We will not follow an administrative

agency’s decision that has been overruled instead of our own precedent, which has

not been overruled.

23
 USCA11 Case: 19-15080 Date Filed: 09/09/2021 Page: 24 of 24

For all of these reasons, we conclude that Talamantes was sentenced to a

term of imprisonment of at least one year for each of his two prior Georgia battery

convictions.

III. CONCLUSION

Each of Talamantes’ two Georgia convictions for simple battery was “a

crime of violence . . . for which the term of imprisonment [was] at least one year,”

within the meaning of 8 U.S.C. § 1101(a)(43)(F). That means he was convicted of

not one, but two “aggravated felonies,” as that term is defined in the INA. Id.

Two is more than enough to render him ineligible for cancellation of removal.

PETITION DENIED.

24