Date Decided: May 13, 2013
The Fourth Circuit vacated the Board of Immigration Appeals’ (BIA) final order of removal of Ali Sina Karimi with instructions to reinstate Karimi’s asylee status.
Karimi is a citizen of Afghanistan who entered the United States in 1990. Karimi was granted asylum in 1999. In October of 2007, Karimi was arrested in Maryland for driving under the influence of alcohol. When the arresting officer admitted Karimi to prison, Karimi became “belligerent and somewhat out of control.” The arresting officer claims to have laid her hand down next to Karimi and told him to quiet down. Then, the officer alleges, that Karimi grabbed the officer’s hand, spat on her arm, and acted as if he was going to strike her. As a result of the incident, Karimi pled guilty to driving under the influence and to a misdemeanor second-degree assault for the altercation with the officer. Karimi served four months in prison. In 2008 the Department of Homeland Security moved to terminate Karimi’s asylum on the basis that he was convicted of a “crime of violence” that qualified as an aggravated felony. In January 2009, an Immigration Judge held that the second-degree assault conviction was an aggravated felony and terminated his asylee status. Karimi’s filed a motion to reconsider, which was denied. Karimi then appealed to the BIA, challenging the ruling that the second-degree assault conviction was an aggravated felony. The BIA dismissed the appeal finding that Karimi was convicted of a “crime of violence.”
On appeal, Karimi argued that the BIA erred in determining that his second-degree assault conviction was a “crime of violence.” The Fourth Circuit agreed. A “crime of violence” is defined in the United States Code as either, “an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person property of another may be used in the course of committing the offense.” There are two approaches to determining whether a conviction was a crime of violence. First, courts generally follow the “categorical approach” that examines the statutory definition of the crime charged and the fact of conviction to determine whether the defendant’s conviction was a crime of violence. Second, where the crime under which the defendant was convicted has phrases that may or may not constitute violence, courts follow a “modified categorical approach” that allows the court to consider, in addition to the statutory elements of the crime charged, the terms of a charging document, a plea agreement, a transcript of colloquy between judge and defendant or other judicial record that reveals the “factual basis for the plea.” The court held that under either approach, the BIA erred in determining that Karimi committed an aggravated felony. The court concluded that Karimi prevailed under the categorical approach because the second-degree assault statute encompasses both violent and nonviolent touching. In addition, Karimi prevails under the modified categorical approach because “grabbing” the officer’s hand was the only conduct which Karimi admitted to, and “grabbing” in and of itself did not rise to the level of physical force necessary to constitute a crime of violence. Therefore, the Fourth Circuit held that Karimi’s second-degree assault conviction did not qualify as a “crime of violence” and remanded to the BIA with instructions to reinstate Karimi’s asylee status.
– Wesley B. Lambert