# United States Court **of Appeals**  **f or 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 la ter 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* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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 Case: 21-60423 Document: 00516673578 Page: 1 Date Filed: 03/10/2023No. 21

- 60423

2 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 (C AT). 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. T he Board of Immigration Appeals (BIA) found no error and dismissed his appeal. Mady now petition s this court for review

. We **DENY** his petition

. **I. Juri sdiction**  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 la w, 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 on ly 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
fe lony” 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). Case: 21-60423 Document: 00516673578 Page: 2 Date Filed: 03/10/2023No. 21

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3 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 rob bery 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

corr esponding 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

a n 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 b y 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 disgu ised 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). Case: 21-60423 Document: 00516673578 Page: 3 Date Filed: 03/10/2023No. 21

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4 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) (quo ting **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.

**I II. Withholding of Removal** 
An applicant for withh olding of removal is ineligible if he was convicted of a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(A). A n “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 determines through a case

- specific adjudication

. Id. ; s ee also Hakim v. Holder , 628 F.3d 151, 1 54

– 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, 3 68

– 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 appli ed 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 exten t 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. Case: 21-60423 Document: 00516673578 Page: 4 Date Filed: 03/10/2023No. 21

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5 **IV**

**. CAT**  **Deferral**
To obtain protection under CAT, a petitioner must show that “(1) it
i s 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).

M ady , 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 Ge orge Washington University,
contain s some assertions of di scrimination, but none of torture. Further,

t hough 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 fail s to show that his evidence compelled a different re sult. 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

. Case: 21-60423 Document: 00516673578 Page: 5 Date Filed: 03/10/2023