United States Court of Appeals

for the Fifth Circuit

No. 21-60423

Tomas Magdy Mady, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals

Agency No. A058 574 948

Before Jones, Dennis, and Willett, Circuit Judges.

Per Curiam:*

Tomas Mady is a citizen of Egypt and lawful permanent resident of 

the United States. In 2012, he was convicted of attempted aggravated 

robbery in violation of Tennessee law and was sentenced to three years in 

prison. The federal government found him seven years later and placed him 

in removal proceedings for an “aggravated felony” conviction. 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 10, 2023

Lyle W. Cayce

Clerk

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8 U.S.C. § 1227(a)(2)(A)(iii). Mady applied for withholding of removal 

under the Immigration and Nationality Act (INA) and protection under the 

Convention Against Torture (CAT). The Immigration Judge (IJ) sustained 

the charge of removal because his conviction constituted an aggravated 

felony; denied withholding because he committed a particularly serious 

crime; and rejected CAT deferral of removal on the absence of proof that he 

would likely suffer state-sanctioned torture if he returned to Egypt. The 

Board of Immigration Appeals (BIA) found no error and dismissed his appeal. 

Mady now petitions this court for review. We DENY his petition.

I. Jurisdiction

We generally lack jurisdiction to review “any final order of removal 

against an alien who is removable by reason of having committed” an 

aggravated felony. 8 U.S.C. § 1252(a)(2)(C).1

 But “we retain jurisdiction to 

review related questions of law, including whether an alien’s conviction 

constitutes an aggravated felony.” Fosu v. Garland, 36 F.4th 634, 636–37 

(5th Cir. 2022) (citation omitted); see also 8 U.S.C. § 1252(a)(2)(D). We 

review the BIA’s decision and will consider the IJ’s decision only to the 

extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d 511, 517 

(5th Cir. 2012). The limited factual findings over which we have jurisdiction 

are reviewed for substantial evidence, and legal conclusions are reviewed de 

novo. Id. at 517–18.

II. Removability

An alien is removable if he is convicted of an aggravated felony. 

8 U.S.C. § 1227(a)(2)(A)(iii). As defined by Congress, an “aggravated 

felony” includes any “crime of violence . . . for which the term of 

1 This jurisdictional bar does not apply to CAT orders. See Nasrallah v. Barr, 

140 S. Ct. 1683, 1692 (2020). 

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imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(F),2 as well as 

attempts to commit an aggravated felony, id. § 1101(a)(43)(U). The 

Attorney General asserts that aggravated robbery qualifies as a crime of 

violence and that Mady is removable for attempting to commit it. To 

determine if that is so, we ask “whether the state statute defining the crime 

of conviction categorically fits within the generic federal definition of a 

corresponding aggravated felony” that would make the alien removable. 

Esquivel-Quintana v. Sessions, 581 U.S. 385, 389, 137 S. Ct. 1562, 1568 (2017) 

(internal quotation marks omitted).

The generic definition of a crime of violence is “an offense that has as 

an element the use, attempted use, or threatened use of physical force against 

the person or property of another.” 18 U.S.C. § 16(a). The Tennessee 

statute under which Mady was convicted makes it a felony to accomplish a 

robbery “with a deadly weapon or by display of any article used or fashioned 

to lead the victim to reasonably believe it to be a deadly weapon; or . . . where 

the victim suffers serious bodily injury.” Tenn. Code. Ann. § 39-13-402.

The Sixth Circuit, which encompasses the jurisdiction of Mady’s 

conviction, has held that Tennessee aggravated robbery is a crime of 

violence. See United States v. Gloss, 661 F.3d 317, 319, 320 (6th Cir. 2011). 

We agree with that court’s reasoning, for it only makes sense that any robbery 

“with a real or disguised deadly weapon, or that causes serious bodily injury, 

falls under . . . the definition of violent felony, as it necessarily involves ‘the 

use, attempted use, or threatened use of physical force against the person of 

another.’” Id. at 319. Further, we agree with the Sixth Circuit that 

Tennessee simple robbery—the taking of property “from the person of 

2 Mady was sentenced to three years in prison, satisfying the term of imprisonment 

requirement of 8 U.S.C. § 1101(a)(43)(F).

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another by violence or putting the person in fear”—is itself a crime of 

violence. United States v. Mitchell, 743 F.3d 1054, 1058–59 (6th Cir. 2014) 

(quoting Tenn. Code. Ann. § 39-13-401). Thus, Mady’s conviction for 

attempted aggravated robbery fits squarely within the definition of an 

aggravated felony under § 1101(a)(43)(F), (U), making Mady removable.

III. Withholding of Removal

An applicant for withholding of removal is ineligible if he was 

convicted of a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(A). An

“aggravated felony” conviction with a sentence of at least 5 years is a 

particularly serious crime per se. Id. § 1231(b)(3)(B)(iv). A conviction 

carrying a shorter sentence can also constitute a particularly serious crime if 

the Attorney General, in his discretion, so determinesthrough a case-specific 

adjudication. Id.; see also Hakim v. Holder, 628 F.3d 151, 154–55 (5th Cir. 

2010). 

Because Mady’s conviction of an aggravated felony carried a sentence 

of less than five years, withholding of removal remains available to him unless 

his conviction is deemed “particularly serious.” Vetcher v. Barr, 953 F.3d 

361, 368–69 (5th Cir. 2020). Here, the Attorney General found that Mady’s 

crime was particularly serious, and the BIA agreed, noting the dangerous 

nature of the crime and the underlying facts of Mady’s conviction. Our 

review is limited to whether the BIA applied the correct legal standard. See 

Hakim, 628 F.3d at 154–55; Tibakweitira v. Wilkinson, 986 F.3d 905, 910 (5th 

Cir. 2011). We find that it did. Accordingly, Mady’s petition for review of 

withholding of removal is denied. To the extent Mady “asks us to reweigh 

the facts and find that his crime was not particularly serious,” we lack 

jurisdiction to do so under § 1252(a)(2)(C). Tibakweitira, 986 F.3d at 911.

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IV. CAT Deferral

To obtain protection under CAT, a petitioner must show that “(1) it 

is more likely [than] not that he will be tortured upon return to his homeland; 

and (2) sufficient state action will be involved in that torture.” Tibakweitira, 

986 F.3d at 911. “Sufficient state action” can take the form of “consent or 

acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1).

Mady, an Orthodox Christian, contends that he likely faces torture in 

Egypt and is eligible for CAT relief given his credible testimony showing 

regular discrimination and criminal extortion against Christians. 

The testimony of his expert, a professor at George Washington University, 

contains some assertions of discrimination, but none of torture. Further, 

though Mady’s evidence describes instances of persecution against 

Christians by Muslims, it does not show that the Egyptian government has 

acquiesced to this violence. In sum, we find that substantial evidence 

supports the conclusion of the BIA that Mady failed to meet his burden of 

proof for CAT relief. See 8 C.F.R. § 1208.16(c)(2); see also Chen v. Gonzalez, 

470 F.3d 1131, 1142–43 (5th Cir. 2006). Mady fails to show that his evidence 

compelled a different result. See Munoz-Granados v. Barr, 958 F.3d 402, 406 

(5th Cir. 2020).

IV. Conclusion

For the foregoing reasons, we DENY Mady’s petition for review.

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