                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 3, 2006
                               FO R TH E TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                       Clerk of Court



    H A RO O N RA SH ID ,

                 Petitioner,

    v.                                                   No. 05-9535
                                                      (No. A46-188-443)
    ALBERTO R. GONZALES, United                      (Petition for Review)
    States A ttorney General,

                 Respondent.



                               OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.




         Petitioner Haroon Rashid, a lawful permanent resident of the United States

and a native and citizen of Pakistan, was placed in removal proceedings based on

his conviction in a Colorado state court for third degree assault. Respondent

asserted that this conviction was a “crime of violence,” as defined by 18 U.S.C.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
§ 16, which subjected M r. Rashid to removal under 8 U.S.C. §§ 1227(a)(2)(A )(iii)

and 1101(a)(43)(F). An Immigration Judge (IJ) determined that the third degree

assault conviction was not a crime of violence, and terminated the removal

proceedings. R espondent appealed. The Board of Immigration Appeals (BIA)

reversed and remanded to the IJ for the ministerial purpose of receiving into the

record various documents pertaining to the assault conviction. The IJ then

supplem ented the record and ordered M r. Rashid removed to Pakistan, pursuant to

the BIA ’s order. In a subsequent appeal to the BIA, the BIA ordered M r. Rashid

deported. 1 M r. Rashid filed a timely petition for review by this court. The BIA

denied M r. R ashid’s subsequent motion to reconsider.

      W e have jurisdiction to determine if M r. Rashid is removable “by reason of

a criminal offense listed in [§ 1227].” Tapia Garcia v. INS, 237 F.3d 1216, 1220

(10th Cir. 2001). W e deny the petition for review.

                           Scope and Standard of Review

      Respondent bears the burden in removal proceedings to prove by clear and

convincing evidence that the alien is subject to removal. 8 U.S.C.

§ 1229a(c)(3)(A ); Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005).

Because the BIA did not adopt any reasoning of the IJ, we review only the B IA’s



1
      The BIA characterized the IJ’s decision as ordering M r. Rashid removed
based on his third degree assault conviction. This is inaccurate, given the IJ’s
original order terminating the removal proceedings. In his order after the first
remand, the IJ ordered M r. Rashid removed because the BIA directed him to.

                                         -2-
orders. Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir. 2002). In doing so, we

review de novo the BIA ’s determinations of questions of law. Fernandez-Vargas

v. Gonzales, 394 F.3d 881, 884 (10th Cir. 2005), aff’d 126 S. Ct. 2422 (2006).

W e are not, however, “at liberty to search for grounds to affirm that were not

relied upon by the agency.” Uanreroro v. Gonzales, 443 F.3d 1197, 1205 (10th

Cir. 2006).

                               Statutory Framework

      The issue is whether M r. Rashid is removable based on his conviction for

third degree assault, in violation of Colo. Rev. Stat. § 18-3-204. Under 8 U.S.C.

§ 1227(a)(2)(A)(iii), an alien is subject to removal if he was convicted of an

aggravated felony. In turn, 8 U.S.C. § 1101(a)(43)(F) includes in the definitions

of “aggravated felony” the term “crime of violence,” as defined in 18 U.S.C. § 16.

Accordingly, we must evaluate the BIA’s determination that M r. Rashid’s

Colorado third degree assault conviction was a “crime of violence” under § 16.

      The term “crime of violence” means –

      (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.




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      The third degree assault statute provides:

      A person commits the crime of assault in the third degree if the
      person knowingly or recklessly causes bodily injury to another
      person or with criminal negligence the person causes bodily injury to
      another person by means of a deadly weapon.

Colo. Rev. Stat. § 18-3-204. 2

                                 Categorical Approach

      W hen evaluating a conviction under § 16, “we are to use the ‘categorical

approach,’ under which a court must only look to the statutory definition, not the

underlying circumstances of the crime.” United States v. Lucio-Lucio, 347 F.3d

1202, 1204 (10th Cir. 2003) (quotation omitted). If we determine, however, that

§ 16 is ambiguous, or broad enough to encompass a spectrum of crimes, some of

w hich w ould and some of w hich would not constitute a “crime of violence,” w e

can look beyond the statute to certain records of the prior proceeding to determine

whether the jury was actually required to make findings relevant to our analysis.

Taylor v. United States, 495 U.S. 575, 602 (1990). M ore specifically, we may

look at “the charging paper and jury instructions” to determine whether they

“actually required the jury to find all the elements of [the crime] in order to

convict the defendant.” Id.; see Shepard v. United States, 544 U.S. 13, 23 (2005).




2
      Pursuant to the statute, this crime is a class 1 misdemeanor, but because
M r. Rashid was sentenced to 401 days’ incarceration, see R. at 65, the B IA
characterized the conviction as a felony under federal law. M r. Rashid does not
challenge this ruling.

                                         -4-
                                      Analysis

      W e first consider whether the third degree assault conviction was a crime

of violence under § 16(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”). This court has determined that “the statutory language of Colorado’s

third degree assault statute does not necessarily include the use or threatened use

of ‘physical force.’” United States v. Perez-Vargas, 414 F.3d 1282, 1287 (10th

Cir. 2005). In Perez-Vargas, we evaluated the Colorado statute in the context of

the federal sentencing guidelines, specifically U.S.S.G. § 2L1.2. 3 Id. at 1287.

The sentencing guideline at issue in Perez-Vargas, § 2L1.2, is almost identical to

18 U.S.C. § 16(a). Id. at 1286 n.3; accord United States v. Torres-Ruiz, 387 F.3d

1179, 1187 (10th Cir. 2004) (stating “2L1.2 defines the phrase ‘aggravated

felony’ by effectively incorporating the definition of ‘crime of violence’ found in

18 U.S.C. § 16”). “A prior conviction for third degree assault in Colorado . . . is

not categorically a crime of violence under USSG § 2L1.2.” Perez-Vargas,

414 F.3d at 1287. Accordingly, we conclude that M r. Rashid’s conviction for

third degree assault is not categorically a crime of violence under § 16(a).




3
       “Crime of violence” includes “any offense under federal, state or local law
that has as an element the use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 2L1.2, Application Note 1(B)(iii).

                                         -5-
      W e next turn to the question of whether M r. Rashid’s prior conviction is

categorically a crime of violence under § 16(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”). Section 16(b) “covers offenses that naturally involve a person

acting in disregard of the risk that physical force might be used against another in

comm itting an offense.” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

      In the criminal-sentencing context, this court has held that “a Colorado

third degree assault is categorically a crime of violence under U.S.S.G.

§ 4B1.2(a).” United States v. Krejcarek, ___ F.3d. ___, No. 04-1531, 2006 W L

1892573, *3 (10th Cir. July 11, 2006) (citing United States v. Paxton, 422 F.3d

1203, 1207 (10th Cir. 2005)). 4 But we have not held that third degree assault

categorically is a crime of violence under § 16(b). There is a “significant

difference” between § 4B1.2’s requirement of a “risk of physical injury,” and

§ 16(b)’s requirement of a “risk of use of force.” United States v. M oore, 420

F.3d 1218, 1224 (10th Cir. 2005). “W ithout a distinction between crimes that

potentially involve violent conduct and crimes that merely involve the possibility




4
       “Crime of violence” refers to an offense that “(1) has an element the use,
attempted use, or threatened use of physical force against the person of another,
or (2) is burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious risk of physical
injury to another.” U.S.S.G. § 4B1.2(a).

                                          -6-
of resulting harm, the § 16(b) definition would be far too inclusive. . . .”

Lucio-Lucio, 347 F.3d at 1206; see also id. at 1207 (noting and preserving

distinction between § 16(b) and § 4B1.2(a)(2), which is “obviously broader than

§ 16(b)”; limiting holding to cases not involving actual injury to others).

Accordingly, the actual conduct that is criminalized must be considered when

applying § 16(b).

      Looking beyond the statute of conviction, the BIA reasoned, and we agree,

that “jury instructions 8 through 12 reflect that [M r. Rashid] offered a

self-defense theory at trial, and two of those instructions discuss the use of

physical force.” In re Rashid, No. A46 188 443, 2005 W L 3802089 (BIA Dec. 1,

2005) (unpublished). In particular, Instruction No. 9 stated:

      It is an affirmative defense to the crime of assault in the third degree
      that the defendant used physical force upon another person:

      1. in order to defend himself from what he reasonably believed to be
      the use or imminent use of unlawful physical force by the victim, and

      2. he used a degree of force which he reasonably believed to be
      necessary for that purpose.

      However, the defendant was not justified in using physical force if:

      1. with intent to cause bodily injury to another person, he
      provoke[d] the use of unlawful physical force by that other person, or

      2. he [was] the initial aggressor, except that his use of physical force
      upon another person under the circumstances [was] justifiable if he
      [withdrew] from the encounter and effectively communicate[d] to the
      other person his intent to do so, but the latter nevertheless
      continue[d] or threaten[ed] the use of unlawful physical force, or

                                          -7-
      3. the physical force involved [was] the product of a combat by
      agreement not specifically authorized by law.

R. at 148.

      By returning a guilty verdict to the charge of third degree assault, the jury,

which we presume followed the jury instructions, necessarily rejected

M r. Rashid’s affirmative defense that he used physical force against the victim to

defend himself. In doing so, the jury necessarily had to find that Rashid “was not

justified in using physical force” for one of the three reasons outlined in the

instruction quoted above. W e conclude that any of these three reasons would be

sufficient to satisfy the requirements of § 16(b), i.e., all three indicate that the

crime/situation involved a substantial risk that Rashid would use, or did in fact

use, physical force against the victim.

                                      Conclusion

      W e conclude that M r. Rashid’s prior conviction under the Colorado third

degree assault statute was a crime of violence, as defined in 18 U.S.C. § 16.

Consequently, his removal is warranted pursuant to 8 U.S.C. §§ 1227(a)(2)(A )(iii)

and 1101(a)(43)(F). The petition for review is DENIED.



                                                 ENTERED FOR THE COURT

                                                 PER CURIAM




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