[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11131

Non-Argument Calendar

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WILMER DE JESUS CRUZ, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A099-255-306

____________________

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2 Opinion of the Court 21-11131

Before ROSENBAUM, GRANT, and BLACK, Circuit Judges.

PER CURIAM:

Wilmer De Jesus Cruz seeks review of the order of the Board 

of Immigration Appeals (BIA) affirming the Immigration Judge’s 

(IJ) order of his removal and denial of cancellation of removal. In 

September 2017, Cruz was convicted of felony breaking and entering and felony larceny in North Carolina. He was sentenced to 8

to 19 months’ imprisonment consolidated for both Class H felony 

offenses. The court found no aggravating or mitigating factors, 

and instead noted it made “no written findings because the prison

term imposed [was] within the presumptive range of sentences authorized under” N.C. Gen. Stat. § 15A-1340.17(c). In October 2019, 

the Department of Homeland Security initiated removal proceedings against Cruz via a Notice to Appear that charged him as removable, in relevant part, under 8 U.S.C. § 1227(a)(2)(A)(iii) as an 

alien convicted of an aggravated felony for his breaking and entering offense. 

Before the BIA, Cruz argued that it is impossible to tell how 

much sentencing weight each of his charges had on his overall sentence. He cited State v. Moore, 395 S.E.2d 124 (N.C. 1990), and 

State v. Wortham, 351 S.E.2d 294 (N.C. 1987), for the proposition 

that when convictions are consolidated for sentencing in North 

Carolina, without written findings or some other additional information in the record, courts are unable to determine what weight, 

if any, the trial court gave to each separate conviction. Cruz also 

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21-11131 Opinion of the Court 3

argued that State v. Skipper, 715 S.E.2d 271 (N.C. Ct. App. 2011),

did not stand for the proposition that all sentences in a consolidated 

sentence are the functional equivalent of a concurrent judgment, 

but rather, for the proposition that the “equally attributable” rule 

is inapplicable to consolidated judgments. 

In its order, the BIA cited only Skipper for the proposition 

that the sentence for a consolidated judgment applied to all of the 

convictions consolidated in the judgment and did not engage with 

the line of cases cited by Cruz that the weight given to each separate conviction is indeterminable without additional record information. Cruz asserts the BIA erred in concluding this and, as such, 

erred in concluding he was ineligible for cancellation of removal as 

an aggravated felon given that his consolidated sentence was not a 

term of imprisonment of at least one year solely for the charge of 

breaking and entering. The Government concedes in its response 

brief that the BIA failed to give reasoned consideration to this issue 

and requests that we remand for the BIA to explain its holding regarding Skipper and other North Carolina authorities that are in 

tension with its holding regarding consolidated sentences. 

We review de novo whether a conviction qualifies as an “aggravated felony.” Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335-

36 (11th Cir. 2011). An aggravated felony includes crimes of violence for which the term of imprisonment is at least one year. 8 

U.S.C. § 1101(a)(43)(F). We have held that “an aggravated felony 

is defined by the sentence actually imposed.” United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).

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4 Opinion of the Court 21-11131

As acknowledged by the Government, there appears to be 

tension in the law of North Carolina as to how the sentence in a 

consolidated judgment applies to each of the convictions, and the 

BIA did not specifically address the authorities and arguments presented below on this issue. Notably, while Skipper concluded that 

a reduced sentence was not warranted when one of the convictions 

of a consolidated judgment was vacated where the remaining convictions had the same highest classification of felony regardless of 

the vacated conviction, other authorities state that remand is necessary in this situation because appellate courts are unable to determine what weight was given to each offense. The BIA failed to 

consider these contrary authorities. North Carolina courts also distinguish between consolidated and concurrent sentences. See

United States v. Davis, 720 F.3d 215, 218 (4th Cir. 2013). While we 

could grapple with these authorities in the first instance, “[g]enerally speaking, a court of appeals should remand a case to an agency 

for decision of a matter that statutes place primarily in agency 

hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002); Lauture 

v. U.S. Att’y Gen., No. 19-13165, 2022 WL 805703 at *8 (11th Cir. 

Mar. 17, 2022).

We grant Cruz’s petition, vacate the BIA’s decision, and remand so that the BIA can engage with the parties’ arguments and 

caselaw more thoroughly. See Bing Quan Lin v. U.S. Att’y Gen., 

881 F.3d 860, 874 (11th Cir. 2018) (“Where the BIA has not given 

reasoned consideration of a question or made adequate findings, 

we remand for further proceedings.”(quotations omitted)). Once 

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it does so, the BIA can clarify the basis of its ruling and determine

whether Cruz’s North Carolina felony breaking and entering conviction had a sentence of at least one year. See 8 U.S.C.

§ 1101(a)(43)(F); Guzman-Bera, 216 F.3d at 1020. 

PETITION GRANTED. 

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