*1 compared financial for her when abused its broad windfall the district court However, special monthly a condition of by adding to her normal income. discretion to- requires apply review, Grant to probation her tax refunds upon closer income among obligation, restitution wards her are not windfalls the context of her money may things, any future she other ability previously pay determined to resti- an income tax re- in the form of receive adding tution. In condition at special state). In (presumably fund federal here, issue the district court did not ac- terms, holding means that practical our history count for the fact that of Grant’s stole from the United though even Grant receiving income tax previous- refunds had money, significant a amount of most States ly been payment factored into her schedule yet repay, she has to the United and, therefore, receipt any future crime) of her must States the victim tax represent income refunds does not any future excess federal income refund change ability pay her to restitution. may she makes so that she payment tax alone, majori- On this I concur in the basis apply than it to it as she wishes rather use ty’s setting decision to vacate the order obligation. her restitution special condition. exercise of discretion
The district court’s modify special pro- conditions of
to Grant’s in an effort to ensure that Grant
bation obligation much of her restitution
meets as commendable, especially is is possible court otherwise view of the fact that the KARIMI, Kami, Ali Ali Sina Sina a/k/a entirely have been accommo- appears to Mamoud, Petitioner, Karimi a/k/a ability dating regarding her financial to v. Nonetheless, I am con- pay restitution. HOLDER, Jr., Attorney Eric H. majority that agree to with the strained General, Respondent. un- the district court abused its discretion specific facts of this case. Grant’s der Karimi, Kami, Ali Ali Sina Sina a/k/a investigation report, which is presentence Mamoud, a/k/a record, part of the establishes that she Petitioner, consistently relatively received substantial time income tax refunds at the she was sentenced, those refunds are originally Holder, Jr., Eric H. to the refunds she has re- comparable General, Respondent. sentencing thereafter. The court ceived 11-1929, Nos. 12-1076. receipt therefore aware of Grant’s
was her income tax refunds when it first set Court of Appeals, United States schedule, and it fac- payment restitution Fourth Circuit. ability pay them into her restitu- tored Argued: Jan. 2013. tion.2 May Decided: 2013. short, receipt annual of a Grant’s relatively income tax refund substantial being appearance
has the outward bring appellate brief. Howev- Apparently, did this fact to not mention it in her Grant not er, during perti- part the district court’s attention it is of the case record. Likewise, proceedings nent below. she does *2 General, Acting
Delery, Assistant Division, Bosque, Ada E. Senior Liti- Civil Counsel, gation Department United States *3 Justice, D.C., Respon- for Washington, dent. KING, WYNN, DIAZ,
Before Judges. Circuit granted; vacated and Petition for review by published remanded with instructions DIAZ opinion. Judge opinion, wrote the joined. Judge Judge in which WYNN dissenting opinion. filed a KING OPINION DIAZ, Judge: Circuit petitions Ali Sina Karimi this court for Immigration Appeals review of a Board of (“BIA”) final order of removal. Karimi the BIA erred it ruled that contends when Maryland second-degree assault con- his under viction was for “crime violence” “aggravated and thus an U.S.C. 1101(a)(43)(F) felony” under 8 U.S.C. removability. his For the triggered' follow, pe- Karimi’s grant reasons that review, BIA’s order of tition for vacate the removal, the BIA with in- and remand to asylee sta- structions to reinstate tus.
I.
A. Karimi, Afghani- a native and citizen of stan, in 1990. the United States entered asylum in 1999. granted He was Karimi was arrested In October driving under the influence. Belczyk, Maryland for ARGUED: M. Jones David police at the sta- for Peti- He was still intoxicated Day, Pittsburgh, Pennsylvania, pro- the officer he noticed that Spurlock, Allan United tion when tioner. Matthew arrest, MacKenzie, Justice, was cessing his Officer Department Washington, States of citations. D.C., writing large BRIEF: down a number Respondent. for ON during Jones, Karimi later admitted Day, Pittsburgh, As Thomas S. Jones “belligerent and hearing, F. he then became for Petitioner. Stuart Pennsylvania, him control,” and sentenced to three “yelling and admission out of somewhat years’ imprisonment in the station.” J.A. assault a disturbance causing laid her hand on suspend- MacKenzie all four months charge, Officer with but quiet and told him to next to Karimi one-year table received a concurrent ed. He “grabbed” point, At this term, down. wholly for the prison suspended, In hand. her state- Officer MacKenzie’s charge. DUI cause, was incor- ment of Maryland’s charging docu- porated into B. that, ment, wrote MacKenzie Officer 2008, relying on Karimi’s Ma- August *4 her, arm, spat on her grabbed Karimi he conviction, ryland second-degree assault and acted as if he was “jumped up then Security Department the of Homeland with his free hand.” going to strike [her] asylum. to terminate Karimi’s He moved J.A. 321. charg- Appear was served with a Notice to pleaded guilty In Karimi to March removability the Immi- ing him with under the influence of alcohol driving under (“INA”), Nationality Act 8 gration and (“DUI”) and to misdemeanor second-de- 1227(a)(2)(A)(iii), § for his convic- U.S.C. Maryland gree assault under Annotated aggravated felony, tion of an a crime of 3-203, Code, Law section a stat- Criminal defined in 18 16 for violence as U.S.C. broadly misdemeanor as- ute that defines term of at imprisonment which the was law, sault, encompass based on common to year. least one touching.1 even minor See United States January appeared In Karimi first (4th Kirksey, 138 F.3d 125 Cir. (“IJ”) Immigration Judge an in El before 1998). plea hearing At Karimi’s before the Paso, that Texas. The IJ held Karimi’s Montgomery County, the Circuit Court Maryland second-degree assault conviction that prosecutor informed the court the felony, aggravated constituted an found spitting formed the
grabbing and basis charged, him removable as and terminated charge. reciting the evi- the assault asylum. his The case was then trans- trial, presented it the dence would have Baltimore, Maryland, to Kar- ferred where mentioned prosecutor never Officer Mac- imi filed a motion to reconsider. In Octo- allegation that Karimi had Kenzie’s reviewing transcript after the ber if jumped up going and acted as he was to plea hearing, Karimi’s assault conviction Karimi, for part, strike her. denied Baltimore the to the IJ denied motion prosecutor’s the assertion that he had in- reconsider, “in MacKenzie, finding applying that the tentionally spit on Officer but categorical approach, the becoming belligerent to modified Records admitted and grabbing 293. The court of Conviction do demonstrate that the her hand. J.A. force, is, plea violent accepted guilty Karimi’s based on this force involved was Thus, misdemeanor, Although second-degree unlike the the section 3- 1. misdemeanor as governed by sault under section 3-203 is com felony encompass touch- does not minor definitions, felony second-degree mon law as ing. charged Karimi was with both misde- statutorily sault under that same section is felony second-degree meanor and assault un- defined, person prohibits and from inten 3-203, only pleaded der section but to the injury tionally causing physical to another if course, lesser offense. J.A. 310. Of the label- he knows or reason to know that the has ing of his crime as a misdemeanor under officer, parole other is a law enforcement Maryland bearing whether law has no on it agent, probation agent engaged per in the "aggravated felony” under constitutes an the of his or her official formance duties. Md. 203(c)(2)—(3). Immigration Nationality Act. Ann., Code Crim. Law 3 — BIA to consider injury.” the be allowed pain or should causing physical capable States, predicated was whether (citing v. United Johnson J.A. 1265, 176 133, 130 upon L.Ed.2d 1 the facts Officer MacKenzie’s S.Ct. 559 U.S. not, and, if (2010)). a final order of cause issued statement The IJ the alone con- grabbing 2011. address whether in March removal violent Id. at 4- stituted the use of force. BIA, chal- timely appealed to the ruling that his second- the IJ’s lenging aggravat- an conviction was degree assault need for remand on these We see no However, BIA dismissed felony. ed mistakenly BIA though issues. Even had concluding that the IJ appeal, appealed believed Karimi had not the IJ’s categorical a modified conducted “properly determination, pass it did respon- found that ... inquiry it question in the first instance when for a crime of vio- conviction was dent’s Meanwhile, finding. affirmed the IJ’s contemplated [INA].” under lence on which the Gen- specific issues J.A. 36. require clarification do not eral seeks *5 expertise, they as concern particular BIA’s timely this court for petitioned
Karimi Karimi’s conduct falls within only whether a motion to reconsid- review and also filed 16, question § which is not a scope of BIA the BIA. The reopen er and with Reviewing the com- immigration law. motion, separately and Karimi denied that conviction, of Karimi’s we are plete record of that for review petitioned this court explain reasons we able to determine —for cases, these and order.2 consolidated We predi- below—that Karimi’s was not for our review. they ripe are now facts in the statement of cated on the cause, grabbing did and that the II. not, itself, of violent in constitute the use merits, to the we first turning Before that for thus conclude remand force. We by to remand filed consider a motion questions would reconsideration of these day on the before we Attorney General purpose. serve no in this case. argument heard oral that, in Attorney General submits The III. be- apparently BIA’s mistaken light of the central issue before us is whether the IJ’s The dispute Karimi did not lief that second-degree as- Maryland remand is Karimi’s 2008 finding appeal, force physical for a “crime of vio- conviction was the BIA to determine sault necessary to allow 16(a), § by U.S.C. and lence” as defined 18 Karimi’s assault the first instance whether 8 aggravated felony an under U.S.C. a thus force to constitute involved sufficient 1101(a)(43)(F) Karimi re- § that renders Spe- at 4. Resp’t’s Mot. crime of violence. that movable.3 Attorney General insists cifically, the denying Kari- within its discretion Although petitioned this court’s acted Karimi reopen. and motion to reconsider mi’s denying order his motion review of the BIA’s reopen, abandoned this and he to reconsider initially argued Attorney that General 3. The failing opening challenge by to raise it in his issue, jurisdiction to resolve this we lacked Goldsboro, City 178 v. brief. See Edwards preserve contending failed to that Karimi 231, (4th Cir.1999) (noting that 241 n. 6 F.3d during proceedings. How- argument ever, the BIA 28(a)(9)(A), pursuant R.App. P. issues to Fed. to re- in the General's motion abandoned). mand, We deemed apparently not briefed are concedes that he Resp't's BIA. Mot. issue before the the BIA raised this not address whether therefore do (b) any felony legal de novo the other offense is review
We
that,
nature,
by
its
involves a sub-
prior
conviction
question whether
physical
against
stantial risk
force
aggravated felony.
an
Mbea v.
constitutes
Cir.2007).
person
property
may
of another
(4th
Gonzales,
276, 279
482 F.3d
committing
be used in the course of
defer to the BIA’s
Although
generally
we
offense.
INA,
here,
where,
as
interpretations of
statutes over which it
the BIA construes
§
Supreme
18 U.S.C.
16. The
Court inter-
interpreta
its
particular expertise,
has no
preted
provisions
these
in Leocal:
to deference.
tions are not entitled
Garcia
§
construing
parts
both
(4th
Gonzales,
v.
455 F.3d
Cir.
forget
ultimately
cannot
that we
are de-
2006).
proceedings,
gov
In removal
termining
meaning
of the term
proving
burden of
re-
ernment bears the
ordinary
“crime of violence.” The
movability
therefore whether Karimi
term,
meaning of this
combined with
—and
aggravated felony by
an
clear
committed
§
emphasis
16’s
on the use of
—
convincing
evidence. Salem Hold
(or
against
person
another
the risk
(4th Cir.2011).
er,
647 F.3d
having
to use such force in commit-
crime),
ting
suggests
a category of
An
of an
asylee
“aggravated
convicted
violent, active crimes
felony,”
defined
8 U.S.C.
1101(a)(43)(F),
pursuant
is removable
543 U.S.
4. The
General does not contend that
against
person
property
of anoth-
Maryland
supports
Karimi's
DUI conviction
”
Indeed,
Id. at 1270-71.
er[.]’
it relied on
removability.
Ashcroft,
See Leocal v.
543
interpretation
reaching
Leocal’s
of
16 in
its
1, 4,
377,
U.S.
125 S.Ct.
567 prior by a state ted the defendant.” States v. To determine whether United (4th Cir.2010). violence, Alston, a of 611 F.3d constitutes crime 226 conviction Rather, 'ap categorical examining prior follow the a conviction generally we stemming guilty plea, rely only States v. Torres-Mi from a we proach. See United (4th Cir.2012); Shepard-approved 16.7 on those guel, 701 F.3d documents Mbea, approach at 279. This from we can tell 482 F.3d which whether defen only statutory “necessarily of “looks to the dant’s admitted” facts definition fact conviction identifying crime and the the offense as a crime of vio state crimi (citing Shepard, determine whether the conduct lence. Id. at 224-25 544 1254). statute, 20-21, 24, 26, by including the most at 125 nalized U.S. S.Ct. conduct, a ‘crime of qualifies innocent Maryland’s second-degree Because as- ” at Torres-Miguel, 701 F.3d violence.’ punishes sault statute violent both omitted). (internal quotations conduct, nonviolent traditionally we have cases, range categorical approach how used the modified
In a narrow
ever,
examining prior
under which the when
convictions under
the law
“[w]hen
223;
convicted contains
statute.
See id. at
defendant has been
United
Harcum,
differ
v.
587 F.3d
224-25
statutory phrases that cover several
States
(4th
crimes,
Cir.2009);
Simms,
require
United
v.
generic
ent
some which
States
(4th Cir.2006).
not,”
315-16
violent force and some of which do
F.3d
How-
ever,
may apply
categorical ap
a modified
Johnson and our recent decision
we
(4th
Johnson,
Gomez,
This
F.3d 194
proach.
130 S.Ct.
United States
Cir.2012),
allows us to consider “whether
cast some doubt on the contin-
approach
underlying
viability
approach
a defen
ued
of the
in this con-
specific
conduct
Gomez,
Interpreting
text.
prior
dant’s
state conviction constitutes
Johnson
by examining
categorical ap-
‘the terms
held that' “the modified
crime of violence
document,
plea proach necessarily applies only
...
to those
charging
of the
transcript
colloquy statutory
...
offenses in
the statute it-
agreement,
[a]
*7
defendant,
Thus,
... or ...
self is divisible.”
broad of both violent and non the strict or the modified cate- gorical v. Bai sustain violent conduct. See United States the BIA’s determina- —can (4th Cir.2012) (un tion that Karimi aggravated committed an ley, Fed.Appx. 828 hand, felony. published). On the other Gomez to specifically appli declined renounce Karimi clearly prevails under the strict categorical approach cation of the modified since, categorical approach as we have re- Maryland’s second- convictions under observed, peatedly Maryland’s second-de- statute, degree leaving open the assault gree assault statute reaches violent and
possibility that for statutes “based in com Alston, nonviolent touching alike. See judicially mon law” whose “elements are 222-23; Harcum, F.3d at 587 F.3d determined,” statutory the absence of divi statute, Accordingly, convictions under the sibility may automatically not foreclose the Karimi’s, including cannot categorically be categorical approach. modified 690 F.3d Johnson, crimes of violence. See 130 S.Ct. at 202. at 1270. recognize
While we some of un- ripples Under categorical ap- modified Gomez, certainty in the wake of we note proach, Attorney argues General Court, Supreme Descamps the Shepard-approved conviction docu- States, (U.S. argued United 11-9540 No. ments show that Karimi intended violent 7, 2013), appears poised Jan. to calm these against Officer MacKenzie Descamps waters. concerns whether a de- grabbed when he Specifically, her hand. prior burglary fendant’s state conviction Attorney points General to the § under California Penal Code 459 consti- hearing transcript which Karimi admit- generic burglary tutes under the ACCA. “becoming belligerent ted to and some- Maryland Just as second-degree misde- what out of control” before grabbing Offi- meanor assault require convictions do not cer MacKenzie. Br. at Resp’t’s (citing (and touching violent 258). therefore are not J.A. The General also categorically of violence” under “crime[s] points to Officer MacKenzie’s statement of 16), burglary convictions under Cal.Pe- probable cause, alleged which that as Kari- nal Code 459 do not require that grabbed mi her spat hand “he also [her] entry building defendant’s into a be un- arm” and “jumped up and acted as if he (and categorically therefore are not going were to strike with his free [her] lawful “burglaries]” ACCA, under conduct, hand.” J.A. 321. This the Attor- does include an unlawfulness as element of ney submits, General supports the BIA’s *8 offense). generic the burglary The issue finding that Karimi’s conviction involved whether, in Descamps is thus use, when state use, attempted the or threatened use require crime does not an element of the force, of qualifying violent it as a crime of crime, federal may the federal court 16(a). find violence under the existence of that by examining element Karimi contends that those facts of the the state using record of conviction the crime which “necessarily he admitted” categorical modified approach. entering support do not the BIA’s event,
In any
the instant case does not
conclusion that he committed a crime of
require
Alston,
us to resolve whether continued violence.
Br.
(quoting
Pet’r’s
at 13
application
224-25).
categorical ap-
of the modified
611 F.3d at
While he concedes
proach Maryland
second-degree assault
that Officer MacKenzie’s statement of
permissible.
convictions is
This is because
probable
may
cause
properly
be
consid-
neither of the
possible approaches—
two
it
incorporated
ered since
was
into the
document,
charging
(citing
at 14
causing
Similarly,
id.
harm.
we find Karimi’s
Simms,
316-18),
441 F.3d at
Karimi ar-
admission to “becoming belligerent and
gues
significant-
that it should be afforded
somewhat out of control” insufficient to
than
ly
weight
plea colloquy
less
the
tran-
that
establish
he committed a crime of
script
it
because
“is one-sided account of violence.
J.A. 291. Although hardly a
by
that
is
events
unadmitted
the defen-
civility,
model of
this behavior does not
plea colloquy,
dant.”
As to the
Id.
Karimi
use,
necessarily
use,
entail
attempted
only
insists that
fact
necessarily
he
or
threatened use of violent physical
support
admitted to
his assault conviction
coupled
force—even when
with the act of
“grabbed
was that he
Officer MacKenzie’s grabbing.
hand that was on the table.” J.A. 291.
allegation
As for the
in Officer Mac-
conduct,
submits,
This
Karimi
did not rise
Kenzie’s statement
probable
of
that
cause
physical
to the level of violent
capa-
force
if
“acted as
he was going to strike
causing pain
injury,
ble of
or
as under-
hand,”
[her] with his free
J.A.
by
Maryland prosecutor’s
scored
ac-
acknowledge that if admitted as a factual
knowledgement that “there was no harm
conviction,
basis for the
this conduct would
injury
or
done to the officer” as a result of
use,
use,
involve “the
attempted
or threat-
grabbing.
J.A. 292.
ened use of
against
force
per-
agree
We
with Karimi and hold that the
son ... of another” sufficient to constitute
necessarily
conduct to which he
admitted
16(a).
a crime of
violence. 18 U.S.C.
and on which
necessarily
his conviction
statement,
We also recognize that the
hav-
“grabbing” Officer MacKenzie’s
rested —
ing
expressly incorporated
been
into Ma-
hand — did not constitute
“physi
the use of
ryland’s
document,
charging
Shepard-
is
cal force”
term is defined in John
approved
may
part
be considered as
son,
Grabbing,
that Karimi’s assault conviction his second-
ly identifying rested on facts type as a of assault
degree assault offense of violence. Al- qualifies” as a crime
ston, Consequently, at 224. F.3d met his burden
Attorney General has not removability ag- an proving Karimi’s grant therefore Kari- gravated felon. We LLC; Eye Street VRCOMPLIANCE review, petition for vacate the BIA’s mi’s LLC, Plaintiffs- Solutions removal, and remand to the BIA order of Appellants, asy- instructions to reinstate with lee status. GRANTED; HOMEAWAY, INC.; HomeAway.Com,
PETITION FOR REVIEW AND REMANDED VACATED WITH Inc.; VRBO.Com, Inc.; VacationRen INSTRUCTIONS. tals.Com, Inc., Defendants-Appellees. No. 12-1143.
KING, Judge, dissenting: Circuit of Appeals, United States Court respect my good colleagues, all With Fourth Circuit. I am not convinced that we should reach by the out and decide the issues addressed March Argued: 2013. majority opinion. Attorney The General May Decided: has moved for a remand of this matter to .consideration, the BIA for further and we simply' grant
should that motion. Not-
withstanding the tardiness of the remand spelled by out
request, the reasons
Attorney are valid. The BIA mis- General
apprehended the basis of Karimi’s admin- thus, given it should be appeal;
istrative to correct that error and opportunity fully final
provide us with a considered justification
decision. There is sufficient for the BIA to rule in favor the record merits, in
of the General on the off,
which case Karimi would be no worse *10 likely
and we would have the benefit Descamps
Supreme Court’s decision