                       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.
