Ali Karimi v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALI SINA KARIMI, a/k/a Ali Sina 

Kami, a/k/a Karimi Mamoud,

Petitioner,

v.  No. 11-1929

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



ALI SINA KARIMI, a/k/a Ali Sina 

Kami, a/k/a Karimi Mamoud,

Petitioner,

v.  No. 12-1076

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petitions for Review of an Order of the

Board of Immigration Appeals.

Argued: January 29, 2013

Decided: May 13, 2013

Before KING, WYNN, and DIAZ, Circuit Judges.

2 KARIMI v. HOLDER

Petition for review granted; vacated and remanded with

instructions by published opinion. Judge Diaz wrote the opin-

ion, in which Judge Wynn joined. Judge King filed a dissent-

ing opinion.

COUNSEL

ARGUED: David M. Belczyk, JONES DAY, Pittsburgh,

Pennsylvania, for Petitioner. Matthew Allan Spurlock,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent. ON BRIEF: Thomas S. Jones,

JONES DAY, Pittsburgh, Pennsylvania, for Petitioner. Stuart

F. Delery, Acting Assistant Attorney General, Civil Division,

Ada E. Bosque, Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

DIAZ, Circuit Judge:

Ali Sina Karimi petitions this court for review of a Board

of Immigration Appeals ("BIA") final order of removal.

Karimi contends the BIA erred when it ruled that his Mary-

land second-degree assault conviction was for a "crime of vio-

lence" under 18 U.S.C. § 16, and thus an "aggravated felony"

under 8 U.S.C. § 1101(a)(43)(F) that triggered his removabil-

ity. For the reasons that follow, we grant Karimi’s petition for

review, vacate the BIA’s order of removal, and remand to the

BIA with instructions to reinstate Karimi’s asylee status.

I.

A.

Karimi, a native and citizen of Afghanistan, entered the

United States in 1990. He was granted asylum in 1999.

KARIMI v. HOLDER 3

In October 2007, Karimi was arrested in Maryland for driv-

ing under the influence. He was still intoxicated at the police

station when he noticed that the officer processing his arrest,

Officer MacKenzie, was writing down a large number of cita-

tions. As Karimi later admitted during his plea hearing, he

then became "belligerent and somewhat out of control," "yell-

ing and causing a disturbance in the station." J.A. 291. Officer

MacKenzie laid her hand on a table next to Karimi and told

him to quiet down. At this point, Karimi "grabbed" Officer

MacKenzie’s hand. In her statement of probable cause, which

was incorporated into Maryland’s charging document, Officer

MacKenzie wrote that, as Karimi grabbed her, he spat on her

arm, then "jumped up and acted as if he was going to strike

[her] with his free hand." J.A. 321.

In March 2008, Karimi pleaded guilty to driving under the

influence of alcohol ("DUI") and to misdemeanor second-

degree assault under Maryland Annotated Code, Criminal

Law section 3-203, a statute that broadly defines misdemea-

nor assault, based on common law, to encompass even minor

touching.1 See United States v. Kirksey, 138 F.3d 120, 125

(4th Cir. 1998). At Karimi’s plea hearing before the Circuit

Court of Montgomery County, the prosecutor informed the

court that the grabbing and spitting formed the basis for the

assault charge. In reciting the evidence it would have pre-

1

Although misdemeanor second-degree assault under section 3-203 is

governed by common law definitions, felony second-degree assault under

that same section is statutorily defined, and prohibits a person from inten-

tionally causing physical injury to another if he knows or has reason to

know that the other is a law enforcement officer, parole agent, or proba-

tion agent engaged in the performance of his or her official duties. Md.

Code Ann., Crim. Law §§ 3-203(c)(2)-(3). Thus, unlike the misdemeanor,

the section 3-203 felony does not encompass minor touching. Karimi was

charged with both misdemeanor and felony second-degree assault under

section 3-203, but only pleaded to the lesser offense. J.A. 310. Of course,

the labeling of his crime as a misdemeanor under Maryland law has no

bearing on whether it constitutes an "aggravated felony" under the Immi-

gration and Nationality Act.

4 KARIMI v. HOLDER

sented at trial, the prosecutor never mentioned Officer Mac-

Kenzie’s allegation that Karimi had jumped up and acted as

if he was going to strike her. Karimi, for his part, denied the

prosecutor’s assertion that he had intentionally spit on Officer

MacKenzie, but admitted to becoming belligerent and grab-

bing her hand. J.A. 293. The court accepted Karimi’s guilty

plea based on this admission and sentenced him to three

years’ imprisonment for the assault charge, with all but four

months suspended. He received a one-year concurrent prison

term, wholly suspended, for the DUI charge.

B.

In August 2008, relying on Karimi’s Maryland second-

degree assault conviction, the Department of Homeland

Security moved to terminate Karimi’s asylum. He was served

with a Notice to Appear charging him with removability

under the Immigration and Nationality Act ("INA"), 8 U.S.C.

§ 1227(a)(2)(A)(iii), for his conviction of an aggravated fel-

ony, a crime of violence as defined in 18 U.S.C. § 16 for

which the term of imprisonment was at least one year.

In January 2009, Karimi first appeared before an Immigra-

tion Judge ("IJ") in El Paso, Texas. The IJ held that Karimi’s

Maryland second-degree assault conviction constituted an

aggravated felony, found him removable as charged, and ter-

minated his asylum. The case was then transferred to Balti-

more, Maryland, where Karimi filed a motion to reconsider.

In October 2010, after reviewing the transcript of Karimi’s

assault conviction plea hearing, the Baltimore IJ denied the

motion to reconsider, finding that "in applying the modified

categorical approach, the Records of Conviction do demon-

strate that the force involved was violent force, that is, capa-

ble of causing physical pain or injury." J.A. 345 (citing

Johnson v. United States, 130 S. Ct. 1265 (2010)). The IJ

issued a final order of removal in March 2011.

Karimi timely appealed to the BIA, challenging the IJ’s rul-

ing that his second-degree assault conviction was an aggra-

KARIMI v. HOLDER 5

vated felony. However, the BIA dismissed the appeal,

concluding that the IJ had "properly conducted a modified

categorical inquiry . . . and found that the respondent’s con-

viction was for a crime of violence as contemplated under the

[INA]." J.A. 36.

Karimi timely petitioned this court for review and also filed

a motion to reconsider and reopen with the BIA. The BIA

denied that motion, and Karimi separately petitioned this

court for review of that order.2 We consolidated these cases,

and they are now ripe for our review.

II.

Before turning to the merits, we first consider a motion to

remand filed by the Attorney General on the day before we

heard oral argument in this case.

The Attorney General submits that, in light of the BIA’s

apparently mistaken belief that Karimi did not dispute the IJ’s

physical force finding on appeal, remand is necessary to allow

the BIA to determine in the first instance whether Karimi’s

assault involved sufficient force to constitute a crime of vio-

lence. Resp’t’s Mot. at 4. Specifically, the Attorney General

insists that the BIA should be allowed to consider whether

Karimi’s plea was predicated upon the facts in Officer Mac-

Kenzie’s statement of probable cause and, if not, to address

whether the grabbing alone constituted the use of violent

force. Id. at 4-5.

2

Although Karimi petitioned for this court’s review of the BIA’s order

denying his motion to reconsider and reopen, he abandoned this challenge

by failing to raise it in his opening brief. See Edwards v. City of Golds-

boro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting that pursuant to Fed.

R. App. P. 28(a)(9)(A), issues not briefed are deemed abandoned). We

therefore do not address whether the BIA acted within its discretion in

denying Karimi’s motion to reconsider and reopen.

6 KARIMI v. HOLDER

We see no need for remand on these issues. Even though

the BIA mistakenly believed Karimi had not appealed the IJ’s

physical force determination, it did pass on that question in

the first instance when it affirmed the IJ’s finding. Mean-

while, the specific issues on which the Attorney General seeks

clarification do not require the BIA’s particular expertise, as

they concern only whether Karimi’s conduct falls within the

scope of § 16, which is not a question of immigration law.

Reviewing the complete record of Karimi’s conviction, we

are able to determine—for reasons we explain below—that

Karimi’s plea was not predicated on the facts in the statement

of probable cause, and that the grabbing did not, in itself, con-

stitute the use of violent force. We thus conclude that remand

for reconsideration of these questions would serve no pur-

pose.

III.

The central issue before us is whether Karimi’s 2008 Mary-

land second-degree assault conviction was for a "crime of vio-

lence" as defined by 18 U.S.C. § 16(a), and thus an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F) that ren-

ders Karimi removable.3

We review de novo the legal question whether Karimi’s

prior conviction constitutes an aggravated felony. Mbea v.

Gonzales, 482 F.3d 276, 279 (4th Cir. 2007). Although we

generally defer to the BIA’s interpretations of the INA,

where, as here, the BIA construes statutes over which it has

no particular expertise, its interpretations are not entitled to

deference. Garcia v. Gonzales, 455 F.3d 465, 467 (4th Cir.

3

The Attorney General initially argued that we lacked jurisdiction to

resolve this issue, contending that Karimi failed to preserve his argument

during the BIA proceedings. However, in the Attorney General’s motion

to remand, he apparently concedes that Karimi raised this issue before the

BIA. Resp’t’s Mot. at 4. In any event, we are satisfied that Karimi prop-

erly preserved the argument both before the Baltimore IJ, J.A. 200, and in

his BIA notice of appeal, J.A. 64.

KARIMI v. HOLDER 7

2006). In removal proceedings, the government bears the bur-

den of proving removability—and therefore whether Karimi

committed an aggravated felony—by clear and convincing

evidence. Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011).

An asylee convicted of an "aggravated felony," as defined

in 8 U.S.C. § 1101(a)(43)(F), is removable pursuant to 8

U.S.C. § 1158(c)(2)(B). An aggravated felony includes a

"crime of violence," as set forth in 18 U.S.C. § 16, "for which

the term of imprisonment" is "at least one year." 8 U.S.C.

§ 1101(a)(43)(F). Since Karimi does not dispute that he was

sentenced to more than one year in prison for his Maryland

assault conviction, we need only resolve whether that convic-

tion constituted a crime of violence.4

A "crime of violence" is:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be

used in the course of committing the offense.

18 U.S.C. § 16. The Supreme Court interpreted these provi-

sions in Leocal:

In construing both parts of § 16, we cannot forget

that we ultimately are determining the meaning of

the term "crime of violence." The ordinary meaning

4

The Attorney General does not contend that Karimi’s Maryland DUI

conviction supports his removability. See Leocal v. Ashcroft, 543 U.S. 1,

4 (2004) (holding that an immigrant’s conviction under Florida’s compa-

rable DUI statute was not a conviction for a crime of violence that ren-

dered him deportable).

8 KARIMI v. HOLDER

of this term, combined with § 16’s emphasis on the

use of physical force against another person (or the

risk of having to use such force in committing a

crime), suggests a category of violent, active crimes

....

543 U.S. at 11. And more recently, in Johnson, the Court

examined whether a defendant’s Florida battery conviction

constituted a "violent felony" under the Armed Career Crimi-

nal Act ("ACCA").5 130 S. Ct. at 1268. In doing so, the Court

explained that the phrase "‘physical force’ means violent

force—that is, force capable of causing physical pain or injury

to another person." Id. at 1271. Thus, the Court determined

that a conviction under the Florida battery statute did not cate-

gorically constitute a violent felony because that statute pro-

hibits any intentional contact, "no matter how slight." Id. at

1269-70.

To determine whether a prior state conviction constitutes a

crime of violence, we generally follow the categorical

approach. See United States v. Torres-Miguel, 701 F.3d 165,

167 (4th Cir. 2012); Mbea, 482 F.3d at 279. This approach

"looks only to the statutory definition of the state crime and

the fact of conviction to determine whether the conduct crimi-

nalized by the statute, including the most innocent conduct,

qualifies as a ‘crime of violence.’" Torres-Miguel, 701 F.3d

at 167 (internal quotations omitted).

In a narrow range of cases, however, "[w]hen the law under

which the defendant has been convicted contains statutory

phrases that cover several different generic crimes, some of

5

The Johnson Court noted the similarity between the terms "violent fel-

ony" in the ACCA and "crime of violence" in § 16, observing that both

include "any felony offense which ‘has as an element the use . . . of physi-

cal force against the person or property of another[.]" Id. at 1270-71.

Indeed, it relied on Leocal’s interpretation of § 16 in reaching its ACCA

holding. Id. Accordingly, we rely on Johnson here.

KARIMI v. HOLDER 9

which require violent force and some of which do not," we

may apply a modified categorical approach. Johnson, 130 S.

Ct. at 1273. This approach allows us to consider "whether the

specific conduct underlying a defendant’s prior state convic-

tion constitutes a crime of violence by examining ‘the terms

of the charging document, . . . a plea agreement, . . . [a] tran-

script of colloquy between judge and defendant, . . . or . . .

some comparable judicial record’ revealing the ‘factual basis

for the plea.’" Torres-Miguel, 701 F.3d at 167 (quoting Shep-

ard v. United States, 544 U.S. 13, 26 (2005)) (alterations in

original).6 In applying the modified categorical approach, we

may not determine whether a prior conviction constitutes a

crime of violence by relying on "facts neither inherent in the

conviction nor admitted by the defendant." United States v.

Alston, 611 F.3d 219, 226 (4th Cir. 2010). Rather, in examin-

ing a prior conviction stemming from a guilty plea, we rely

only on those Shepard-approved documents from which we

can tell whether the defendant’s plea "necessarily admitted"

facts identifying the offense as a crime of violence. Id. at 224-

25 (citing Shepard, 544 U.S. at 20-21, 24, 26).

Because Maryland’s second-degree assault statute punishes

both violent and nonviolent conduct, we have traditionally

used the modified categorical approach when examining prior

convictions under that statute. See id. at 223; United States v.

Harcum, 587 F.3d 219, 224-25 (4th Cir. 2009); United States

v. Simms, 441 F.3d 313, 315-16 (4th Cir. 2006). However,

6

Taylor v. United States, 495 U.S. 575, 600-02 (1990), and Shepard set

forth the categorical and modified categorical approaches used to consider

whether a defendant’s prior convictions constitute "violent felon[ies]" trig-

gering ACCA’s sentencing enhancements. We have extended this frame-

work to determine whether certain crimes qualify a defendant for a "crime

of violence" enhancement under the Sentencing Guidelines. See United

States v. Donnell, 661 F.3d 890, 893 n.3 (4th Cir. 2011). Likewise, we

have used this framework in the immigration context to determine whether

an alien is removable as a result of a prior aggravated felony conviction.

See Mbea, 482 F.3d at 279-80; Soliman v. Gonzales, 419 F.3d 276, 285

(4th Cir. 2005).

10 KARIMI v. HOLDER

Johnson and our recent decision in United States v. Gomez,

690 F.3d 194 (4th Cir. 2012), cast some doubt on the contin-

ued viability of the approach in this context. Interpreting

Johnson in Gomez, we held that "the modified categorical

approach necessarily applies only to those statutory offenses

in which the statute itself is divisible." 690 F.3d at 200. Thus,

because the Maryland second-degree assault statute is not

itself technically divisible—meaning that it does not contain

"statutory phrases that cover several different generic crimes,

some of which require violent force and some of which do

not," Johnson, 130 S. Ct. at 1273—Gomez indicates that con-

victions under the statute may not be susceptible to the modi-

fied categorical approach despite the statute’s broad coverage

of both violent and nonviolent conduct. See United States v.

Bailey, No. 11-4774, 2012 WL 5458485 (4th Cir. Nov. 9,

2012) (unpublished). On the other hand, Gomez specifically

declined to renounce the application of the modified categori-

cal approach to convictions under Maryland’s second-degree

assault statute, leaving open the possibility that for statutes

"based in common law" whose "elements are judicially deter-

mined," the absence of statutory divisibility may not automat-

ically foreclose the modified categorical approach. 690 F.3d

at 202.

While we recognize some ripples of uncertainty in the

wake of Gomez, we note that the Supreme Court, in Des-

camps v. United States, No. 11-9540 (U.S. argued Jan. 7,

2013), appears poised to calm these waters. Descamps con-

cerns whether a defendant’s prior state burglary conviction

under California Penal Code § 459 constitutes a generic bur-

glary under the ACCA. Just as Maryland second-degree mis-

demeanor assault convictions do not require violent touching

(and therefore are not categorically "crime[s] of violence"

under § 16), burglary convictions under Cal. Penal Code

§ 459 do not require that the defendant’s entry into a building

be unlawful (and therefore are not categorically "burglar[ies]"

under the ACCA, which does include unlawfulness as an ele-

ment of the generic burglary offense). The issue in Descamps

KARIMI v. HOLDER 11

is thus whether, when a state crime does not require an ele-

ment of the federal crime, the federal court may find the exis-

tence of that element by examining the state record of

conviction using the modified categorical approach.

In any event, the instant case does not require us to resolve

whether continued application of the modified categorical

approach to Maryland second-degree assault convictions is

permissible. This is because neither of the two possible

approaches—the strict categorical or the modified categori-

cal—can sustain the BIA’s determination that Karimi com-

mitted an aggravated felony.

Karimi clearly prevails under the strict categorical

approach since, as we have repeatedly observed, Maryland’s

second-degree assault statute reaches violent and nonviolent

touching alike. See Alston, 611 F.3d at 222-23; Harcum, 587

F.3d at 224. Accordingly, convictions under the statute,

including Karimi’s, cannot categorically be crimes of vio-

lence. See Johnson, 130 S. Ct. at 1270.

Under the modified categorical approach, the Attorney

General argues that the Shepard-approved conviction docu-

ments show that Karimi intended violent physical force

against Officer MacKenzie when he grabbed her hand. Spe-

cifically, the Attorney General points to the plea hearing tran-

script in which Karimi admitted to "becoming belligerent and

somewhat out of control" before grabbing Officer MacKen-

zie. Resp’t’s Br. at 19 (citing J.A. 258). The Attorney General

also points to Officer MacKenzie’s statement of probable

cause, which alleged that as Karimi grabbed her hand "he also

spat on [her] arm" and "jumped up and acted as if he were

going to strike [her] with his free hand." J.A. 321. This con-

duct, the Attorney General submits, supports the BIA’s find-

ing that Karimi’s conviction involved the use, attempted use,

or threatened use of violent force, qualifying it as a crime of

violence under § 16(a).

12 KARIMI v. HOLDER

Karimi contends that those facts of the crime which he

"necessarily admitted" in entering his plea do not support the

BIA’s conclusion that he committed a crime of violence.

Pet’r’s Br. at 13 (quoting Alston, 611 F.3d at 224-25). While

he concedes that Officer MacKenzie’s statement of probable

cause may be properly considered since it was incorporated

into the charging document, id. at 14 (citing Simms, 441 F.3d

at 316-18), Karimi argues that it should be afforded signifi-

cantly less weight than the plea colloquy transcript because it

"is a one-sided account of events that is unadmitted by the

defendant." Id. As to the plea colloquy, Karimi insists that the

only fact he necessarily admitted to support his assault con-

viction was that he "grabbed Officer MacKenzie’s hand that

was on the table." J.A. 291. This conduct, Karimi submits, did

not rise to the level of violent physical force capable of caus-

ing pain or injury, as underscored by the Maryland prosecu-

tor’s acknowledgement that "there was no harm or injury

done to the officer" as a result of the grabbing. J.A. 292.

We agree with Karimi and hold that the conduct to which

he necessarily admitted and on which his conviction necessar-

ily rested—"grabbing" Officer MacKenzie’s hand—did not

constitute the use of "physical force" as that term is defined

in Johnson. 130 S. Ct. at 1271. Grabbing, on its own, is not

necessarily "violent force—that is, force capable of causing

physical pain or injury to another person." Id. Of course, the

fact that Officer MacKenzie was not actually injured does not

foreclose the possibility that the grabbing was powerful

enough to be capable of causing physical pain or injury. But

it is the Attorney General who bears the burden of showing

by clear and convincing evidence the violent nature of

Karimi’s assault, and nothing in the record suggests that the

grabbing was so forceful as to be capable of causing harm.

Similarly, we find Karimi’s admission to "becoming belliger-

ent and somewhat out of control" insufficient to establish that

he committed a crime of violence. J.A. 291. Although hardly

a model of civility, this behavior does not necessarily entail

KARIMI v. HOLDER 13

the use, attempted use, or threatened use of violent physical

force—even when coupled with the act of grabbing.

As for the allegation in Officer MacKenzie’s statement of

probable cause that Karimi "acted as if he was going to strike

[her] with his free hand," J.A. 321, we acknowledge that if

admitted as a factual basis for the conviction, this conduct

would involve "the use, attempted use, or threatened use of

physical force against the person . . . of another" sufficient to

constitute a crime of violence. 18 U.S.C. § 16(a). We also rec-

ognize that the statement, having been expressly incorporated

into Maryland’s charging document, is Shepard-approved and

may be considered as part of our inquiry under the modified

categorical approach. See Simms, 441 F.3d at 316-18. How-

ever, as Karimi argues, reliance on this one-sided account

would be improper under our precedent, which prevents

courts in this context from "relying on facts neither inherent

in the conviction nor admitted by the defendant." Alston, 611

F.3d at 226.7 Karimi clearly never admitted to the allegation

in Officer MacKenzie’s statement of probable cause, and it

was not a fact inherent in his guilty plea. Our unwillingness

to afford greater weight to the statement of probable cause is

reaffirmed, moreover, by the fact that the Maryland prosecu-

tor never mentioned Officer MacKenzie’s allegation in her

recitation of evidence to be presented at trial.

7

The Attorney General argues that Karimi’s reliance on Alston is mis-

placed because Alston’s plea was entered pursuant to North Carolina v.

Alford, 400 U.S. 25 (1970), and therefore did not adopt or admit the facts

ultimately used to support his conviction; the Attorney General correctly

notes that, unlike Alston, Karimi did admit to facts supporting his convic-

tion. But we decline to read Alston so narrowly. Its holding turned not on

the Alford nature of Alston’s plea, but rather on the fact that the plea did

not admit to facts supporting a "violent felony" ACCA enhancement. Sim-

ilarly here, and notwithstanding the non-Alford nature of his plea, Karimi

did not necessarily admit to facts constituting a crime of violence, nor did

his conviction necessarily rest on such facts.

14 KARIMI v. HOLDER

IV.

In sum, the Attorney General has failed to show by clear

and convincing evidence that Karimi’s assault conviction

"necessarily rested on facts identifying his second-degree

assault offense as a type of assault that qualifies" as a crime

of violence. Alston, 611 F.3d at 224. Consequently, the Attor-

ney General has not met his burden of proving Karimi’s

removability as an aggravated felon. We therefore grant

Karimi’s petition for review, vacate the BIA’s order of

removal, and remand to the BIA with instructions to reinstate

Karimi’s asylee status.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED WITH INSTRUCTIONS

KING, Circuit Judge, dissenting:

With all respect for my good colleagues, I am not con-

vinced that we should reach out and decide the issues

addressed by the majority opinion. The Attorney General has

moved for a remand of this matter to the BIA for further con-

sideration, and we should simply grant that motion. Notwith-

standing the tardiness of the remand request, the reasons

spelled out by the Attorney General are valid. The BIA mis-

apprehended the basis of Karimi’s administrative appeal; thus,

it should be given the opportunity to correct that error and

provide us with a fully considered final decision. There is suf-

ficient justification in the record for the BIA to rule in favor

of the Attorney General on the merits, in which case Karimi

would be no worse off, and we would likely have the benefit

of the Supreme Court’s decision in Descamps to inform our

review. Or the BIA might rule in Karimi’s favor, and the

Attorney General could thereafter choose to let that ruling

stand without appeal. In such an instance, we would be

relieved of the obligation to render an unnecessary decision,

and the judicial process would operate at its intended effi-

ciency.

I respectfully dissent.