Anthony McKay Whyte v. LORETTA E. LYNCH, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 14-2357
ANTHONY MCKAY WHYTE,
Petitioner,
v.
LORETTA E. LYNCH, *
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Virginia Benzan, pro bono, Suffolk University Law School,
Immigration Clinic, was on brief, for petitioner.
Anthony W. Norwood, Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Lisa Morinelli, Attorney, Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, and Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation,
were on brief, for respondent.
Sejal Zota, on brief for the National Immigration Project of
the National Lawyers Guild and the Immigrant Defense Project, as
amicus curiae in support of petitioner.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.

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December 9, 2015

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KAYATTA, Circuit Judge. Permanent resident non-citizens
such as petitioner Anthony Whyte are removable under United
States immigration laws if they are convicted of an
"aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). An
"aggravated felony" includes any offense defined in 18 U.S.C.
§ 16 as a "crime of violence," for which the term of
imprisonment is at least one year. See 8 U.S.C.
§ 1101(a)(43)(F). Because Whyte was convicted in 1999 of
third-degree assault under a Connecticut statute, Conn. Gen.
Stat. § 53a–61(a)(1), the Board of Immigrations Appeals
("BIA") ordered his removal, reasoning that the Connecticut
offense was categorically a crime of violence, and thus was
necessarily an "aggravated felony." Resolving an issue left
undecided in our recent decision in Villanueva v. Holder, 784
F.3d 51, 55 (1st Cir. 2015), we join the Second Circuit Court
of Appeals, Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.
2003), in holding that third-degree assault as defined by
Connecticut law does not require proof of all of the required
elements of a "crime of violence." In light of this holding,
Whyte's conviction for that offense, standing by itself, does
not constitute proof that he has been convicted of an
aggravated felony calling for his removal. We therefore grant
his petition to vacate the removal order.

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I.
Anthony McKay Whyte, a citizen of Jamaica, was admitted
to the United States as a permanent resident in 1981. The
Department of Homeland Security ("DHS") first placed Whyte in
removal proceedings in March 2012 in Boston on the basis of a 2011
conviction for selling marijuana in Connecticut. An immigration
judge found him removable in May 2012. Whyte subsequently lost
both his BIA appeal of that decision and a motion to reconsider.
During his subsequent petition to this court, the U.S. Supreme
Court decided Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), holding
that "[i]f a noncitizen's conviction for a marijuana distribution
offense fails to establish that the offense involved either
remuneration or more than a small amount of marijuana, the
conviction is not for an aggravated felony under the [Immigration
and Nationality Act ('INA')]," id. at 1693–94. At the government's
request, we therefore remanded Whyte's case back to the BIA to
reassess the case in light of the Supreme Court's ruling.
On remand, DHS amended its notice of removal against
Whyte. DHS replaced the 2011 marijuana distribution offense with
Whyte's 1999 conviction for assault in the third-degree under
section 53a–61(a)(1) of the Connecticut criminal code, for which
Whyte received a prison sentence of one year, suspended after 45
days, and three years of probation. In an oral decision at the
close of a removal hearing, the immigration judge found Whyte

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removable as charged, relying on an earlier BIA decision ruling
that third-degree assault under Connecticut law qualified as a
"crime of violence" under 18 U.S.C. § 16(a). In re Martin, 23 I.
& N. Dec. 491, 499 (BIA 2002) (en banc). In a timely appeal to
the BIA, Whyte pointed out that the Second Circuit had expressly
overruled In re Martin in 2003, finding that third-degree assault
under Connecticut law is not a "crime of violence." Chrzanoski,
327 F.3d at 196–97. Agreeing that Chrzanoski had reversed the
agency's interpretation in the Second Circuit, the BIA
nevertheless observed that Chrzanoski did not control in this
circuit. Reviewing the immigration judge's legal conclusions de
novo, the BIA held that "[w]hile subsequent Supreme Court and Board
decisions have endeavored to more precisely define the mens rea
and the term 'physical force' required for determining a crime of
violence under 18 U.S.C. § 16(a) since Matter of Martin . . . they
do not change our holding in Martin and the outcome of the instant
case." Whyte's BIA appeal was dismissed and this petition was
undertaken. 1
1 Whyte argues that in issuing a Notice to Appear at an
immigration court in Boston as opposed to Connecticut (where he
resides) the government engaged in impermissible forum shopping to
escape adverse precedent in the Second Circuit. In view of our
independent decision in accord with Chrzanoski and the fact that
immigration officials commenced the removal proceedings in Boston
when the marijuana offense was serving as the sole basis for
removal, we need not decide this forum-shopping issue.

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II.
Noncitizens who are convicted of an "aggravated felony"
after admission into the United States are removable. 8 U.S.C.
§ 1227(a)(2)(A)(iii). Such individuals are also statutorily
ineligible for discretionary forms of relief from removal, such as
asylum or cancellation based on their established, lawful presence
in the United States. See Moncrieffe, 133 S. Ct. at 1682 (citing
8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i); §§ 1229b(a)(3), (b)(1)(C)).
Elsewhere in the Code, "aggravated felony" is defined as, inter
alia, "a crime of violence . . . for which the term of imprisonment
[is] at least one year." 8 U.S.C. § 1101(a)(43)(F). 2
In this case we are, yet again, asked to determine
whether an individual convicted under a given state law is guilty
of a "crime of violence," as defined by Congress. Rather than
draw up a master list of offenses that would meet this definition
or task an administrative agency with determining which state
crimes are "violent," Congress requires that we measure each state
offense we meet against a two-part test defining a "crime of
violence" as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
2 The fact that all but 45 days of Whyte's one-year sentence
was suspended does not affect his vulnerability to removal under
section 16. See 8 U.S.C. § 1101(a)(48)(B) ("Any reference to a
term of imprisonment or a sentence with respect to an offense is
deemed to include the period of incarceration or confinement
ordered by a court of law regardless of any suspension . . . .").

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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 parties agree that Whyte's offense was not
a felony, so we need only concern ourselves with subsection (a).
A.
"Whether a prior conviction is a qualifying offense
under section 16 is a question of law that we review de novo."
United States v. Fish, 758 F.3d 1, 4 (1st Cir. 2014) (citing Aguiar
v. Gonzáles, 438 F.3d 86, 88 (1st Cir. 2006)). In this posture,
our review is focused on the decision promulgated by the BIA, not
the earlier decision of the immigration judge. Vásquez v. Holder,
635 F.3d 563, 565 (1st Cir. 2011). While "[w]e afford deference
to the BIA's reasonable interpretations of the INA," we do not
defer to "its reading of an underlying criminal statute (as to
which it has no expertise)." Patel v. Holder, 707 F.3d 77, 79
(1st Cir. 2013).
In part because "[e]ach state defines its own crimes,
generally without reference to (and often, we presume, without
knowledge of) the section 16 definitions," a flood of appellate
ink has been poured in attempts to classify various state laws
under this federal statute. Fish, 758 F.3d at 4. Nor do the
results of these assays always align with expectations intuited

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from the names or apparent seriousness of the state offenses.
Thus, a state misdemeanor conviction can qualify as a federal
"aggravated felony," see United States v. Cordoza-Estrada, 385
F.3d 56, 58–59 (1st Cir. 2004) (per curiam) (noting the statute's
semantic oddities but joining the majority of other circuits in
reading the law literally), while a crime captioned "assault and
battery with a deadly weapon" can fail to qualify as one that has
the mens rea required of a "crime of violence," Fish, 758 F.3d at
8–10.
An additional complication is introduced by Congress's
repeated, overlapping use of the phrase "crime of violence" in
other statutes such as the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(g)(4), the Domestic Violence Offender Gun Ban, 18
U.S.C. § 922(g)(9) (referring to a "crime of domestic violence"),
and the United States Sentencing Guidelines, U.S.S.G. § 2L1.2.
The appellate landscape interpreting these provisions is equally
daunting. Compare, e.g., United States v. Cruz–Rodriguez, 625
F.3d 274, 277 (5th Cir. 2010) (per curiam) (conviction under
California statute punishing the making of a criminal threat not
a "crime of violence" under the Sentencing Guidelines); with United
States v. Villavicencio–Burruel, 608 F.3d 556, 563 (9th Cir. 2010)
(exactly the opposite).
We have previously explained in detail how we navigate
this landscape to figure out whether a specific conviction

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qualifies as a crime of violence under section 16. See Fish, 758
F.3d at 4–7. In a nutshell, without reference to the underlying
facts of a state conviction, "we compare the elements of the crime
for which the defendant was previously convicted with Congress's
definition of the type of crime that may serve as a predicate
offense." Id. at 5.
Sometimes the state law that we examine sets forth
alternative versions of an offense, at least one of which satisfies
section 16’s definition of a crime of violence, and at least one
of which does not. In such a circumstance, we look at any so-
called Shepard documents that are presented to see if we can
determine the version of the offense of which the person was
convicted. See Shepard v. United States, 544 U.S. 13, 17 (2005).
The "limited class" of documents available to us in performing
this task includes documents "such as indictments and jury
instructions." Fish, 758 F.3d at 6 (quoting Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013)).
Finally, in conducting our analysis of state law, we are
mindful that courts are not to rely solely on their "legal
imagination" in positing what minimum conduct could hypothetically
support a conviction under that law. Gonzales v. Duenas–Alvarez,
549 U.S. 183, 193 (2007). There must be "a realistic probability,
not a theoretical possibility, that the State would apply its
statute" in the manner posited by the reviewing court. Id.

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B.
Whether third-degree assault as defined by Connecticut
law, Conn. Gen. Stat. § 53a-61, describes a "crime of violence"
under section 16(a) is a question of first impression in our
circuit. 3 We begin with the text of the Connecticut law:
(a) A person is guilty of assault in the third
degree when:
(1) With intent to cause physical injury
to another person, he causes such injury
to such person or to a third person; or
(2) he recklessly causes serious physical
injury to another person; or
(3) with criminal negligence, he causes
physical injury to another person by
means of a deadly weapon, a dangerous
instrument or an electronic defense
weapon.
(b) Assault in the third degree is a class A
misdemeanor and any person found guilty under
subdivision (3) of subsection (a) of this
section shall be sentenced to a term of
imprisonment of one year which may not be
suspended or reduced.
Conn. Gen. Stat. § 53a–61.
Whyte pled nolo contendere to violating section (a)(1)
of the state statute. 4 We therefore confine our review to this
3 We have previously characterized this statute as actually
prohibiting "a form of battery," not assault, since it requires a
showing of physical injury. Campos-Gomez v. Mukasey, 298 F. App'x
22, 24 n.3 (1st Cir. 2008).
4 Whyte's nolo contendere plea is considered a conviction for
purposes of immigration law. See 8 U.S.C. § 1101(a)(48)(A) (formal
judgment of guilt is not required when "a judge or jury has found
the alien guilty or the alien has entered a plea of guilty or nolo
contendere" and some form of penalty has been imposed)(emphasis
supplied)).

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prong of the state law. Because subsection (a)(1) requires
"intent," as opposed to recklessness or negligence, it satisfies
the mens rea criterion of section 16(a). See Leocal v. Ashcroft,
543 U.S. 1, 9 (2004) ("The key phrase in § 16(a)--the 'use . . .
of physical force against the person or property of another'--most
naturally suggests a higher degree of intent than negligent or
merely accidental conduct."). 5
For Whyte's conviction to qualify as a "crime of
violence," we must also find that a conviction under subsection
(a)(1) requires, "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 parties agree that "physical
force" should here be understood to mean "violent force--that is,
force capable of causing physical pain or injury to another
person." Johnson v. United States, 559 U.S. 133, 140 (2010).
Although Johnson concerned the meaning of the term "physical force"
in the context of the Armed Career Criminal Act, the language at
issue is identical to that found in section 16(a) and we have
previously extended Johnson's interpretive gloss to section 16(a).
5 Our finding on this subsidiary point is in some tension with
the Second Circuit's approach in Chrzanoski. In that case the
court ruled that because "the subsections under section 53a–61(a)
differ only on the mens rea requirement, the precise subsection
under which petitioner was convicted is not relevant." Chrzanoski,
327 F.3d at 192. This minor point of departure can be explained
by the fact that Chrzanoski predated the Supreme Court's guidance
in Leocal.

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See Fish, 758 F.3d at 9 ("[W]e see no reason to think the same
would not apply to the same phrase in section 16(a)"). This
accords with the BIA's interpretation of "physical force" as used
in section 16(a). See In re Velasquez, 25 I. & N. Dec. 278, 282
(BIA 2010). So, to be more precise, in order to uphold the BIA's
decision we would need to find that subsection (a)(1) of the
Connecticut statute requires the use, attempted use, or threatened
use of "violent force" as a necessary element of conviction.
The elements of a crime may be defined by statute, e.g.,
Conn. Gen. Stat. § 53a–101, or by case law, e.g., Efstathiadis v.
Holder, 119 A.3d 522 (Conn. 2015) (discussing the elements of Conn.
Gen. Stat. Ann. § 53a-73a). The plain text of subsection (a)(1)
of the Connecticut assault statute identifies only two elements:
(i) the "intent to cause physical injury to another person" and
(ii) "caus[ing] such injury to such person or to a third person."
Conn. Gen. Stat. § 53a–61(a)(1). Missing from this text is any
indication that the offense also requires the use, threatened use,
or attempted use of "violent force." The text thus speaks to the
"who" and the "what" of the offense, but not the "how," other than
requiring "intent." In sum, to the extent that the plain language
of the statute controls the definition of the crime, the crime
does not contain as a necessary element the use, attempted use, or
threatened use of violent force.

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Confronted with this lexical gap, the BIA looked to
pronouncements of Connecticut courts for further guidance as to
how the state defines the crime. See Lopes v. Keisler, 505 F.3d
58, 62 (1st Cir. 2007). Nothing in these pronouncements fills in
the gap by indicating that violent force need be employed to cause
the injury. To the contrary, the Connecticut Supreme Court has
stated that, under subsection (a)(1), the state is required "to
prove that the defendant had intentionally caused physical
injury." State v. Tanzella, 628 A.2d 973, 980 (Conn. 1993).
Similarly, Connecticut's model jury instructions for intentional
third-degree assault emphasize that the statute has two elements:
that the defendant "intended to cause physical injury" and that
the defendant "caused physical injury." State of Connecticut
Judicial Branch, Criminal Jury Instructions, 6.1–13 Assault in the
Third Degree (Physical Injury) -- § 53a–61 (a) (1),
http://www.jud.state.ct.us/ji/criminal/part6/6.1-13.htm (last
revised Dec. 1, 2007). "Physical injury," the instructions state,
"is defined as impairment of physical condition or pain. It is a
reduced ability to act as one would otherwise have acted. The law
does not require that the injury be serious. It may be minor."
Id. See also Conn. Gen. Stat. § 53a–3(3) (defining "physical
injury" as "impairment of physical condition or pain").
The government points to no Connecticut authority that
even suggests that Connecticut has interpreted this statute to

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include the use of violent force as an element. Nor have we found
authority to that effect. Common sense, moreover, suggests there
exists a "realistic probability" that, under this statute,
Connecticut can punish conduct that results in "physical injury"
but does not require the "use of physical force." Gonzales, 549
U.S. at 193; see Chrzanoski, 327 F.3d at 196 (subsection (a)(1)'s
"language is broad enough to cover myriad other schemes, not
involving force, whereby physical injury can be caused
intentionally"). For example, a person could intentionally cause
physical injury by "telling the victim he can safely back his car
out while knowing an approaching car driven by an independently
acting third party will hit the victim." United States v.
Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006) (holding
that a similar Texas statute did not satisfy 16(a)'s definition of
violent crime).
Of course, in Fish, when we approached an analogous
question under Massachusetts law--was intent to injure an element
of the crime--we were able to answer that question by relying, in
part, on a Massachusetts case holding that proof of mere
recklessness was sufficient for conviction. See Fish, 758 F.3d at
10 (discussing Commonwealth v. Burno, 487 N.E.2d 1366, 1368–69
(Mass. 1986)). Here, Whyte can point to no Connecticut case in
which an assault conviction was sustained in the absence of violent
force. The absence of such a case, says the government, means

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that violent force is required. The problem with this argument is
that while finding a case on point can be telling, not finding a
case on point is much less so. This logic applies with particular
force because prosecutions in Connecticut for assault have
apparently not generated available records or other evidence that
might allow us to infer from mere observation or survey the
elements of the offense in practice. See Peter M. Brien, Bureau
of Justice Statistics, U.S. Dep't of Justice, Improving Access to
and Integrity of Criminal History Records 9 (2005) (discussing the
"extensive problem" of state criminal record databases lacking
information regarding disposition).
Undaunted by the dry well it dug in Connecticut law, the
BIA, in In re Martin, turned to the legislative history of section
16(a) itself in the form of a sentence in a United States Senate
Judiciary Committee report stating that a "crime of violence" would
"include a threatened or attempted simple assault." S. Rep. No.
98-225, at 307 (1983); see Martin, 23 I. & N. Dec. at 494. In
Chrzanoski, the Second Circuit adequately debunked the BIA's over-
reading of this language in the legislative history, 327 F.3d at
196, and perhaps that is why the government chose not to advance
that theory to us.
In this case, the government instead points to our
decision in United States v. Nason, 269 F.3d 10 (1st Cir. 2001).
Nason addressed the interaction between the Domestic Violence

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Offender Gun Ban, 18 U.S.C. § 922(g)(9), and Maine's general-
purpose assault statute, Me. Rev. Stat. Ann. tit. 17–A, § 207(1).
Under the federal law, an individual convicted of a "misdemeanor
crime of domestic violence" cannot lawfully own a firearm. 18
U.S.C. § 922(g)(9). The statute defines a "misdemeanor crime of
domestic violence," in relevant part, as one that "has, as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon." 18 U.S.C. § 921(a)(33)(A)(ii).
In relevant part, the Maine assault statute states that
"[a] person is guilty of assault" if that person "intentionally,
knowingly, or recklessly causes bodily injury or offensive
physical contact to another." Me. Rev. Stat. Ann. tit. 17–A,
§ 207(1). Like the Connecticut statute, the "bodily injury" prong
of the Maine law does not specify how bodily injury has to be
caused or the kind of "force" (if any) a defendant has to employ
in order to be convicted. We nevertheless reasoned in Nason that
"to cause physical injury, force necessarily must be physical in
nature." Nason, 269 F.3d at 20 (emphasis omitted). Thus,
conviction under the Maine assault statute served as a valid
predicate under the Domestic Violence Offender Gun Ban.
So, says the government, if the element of "causing
physical injury" implies an additional element under Maine law
that physical force be employed to cause the injury, then the
element of "caus[ing] physical injury" under Connecticut's assault

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statute similarly implies an added element that physical force be
used to cause the injury.
The flaw in this argument is the assumption that the
federal statutory scheme at issue in Nason and the one in section
16 before us now are, in relevant part, sufficiently identical so
as to render compelling any reasoning employed in Nason. More
specifically, the government assumes that "the use or attempted
use of physical force" has the same meaning when it appears in the
Domestic Violence Offender Gun Ban, 18 U.S.C. § 921(a)(33)(A)(ii),
and in the Code's generic definition of a "crime of violence," id.
§ 16(a). That premise is undermined by the Supreme Court's rulings
in United States v. Castleman, 134 S. Ct. 1405 (2014), and Johnson,
559 U.S. 133.
"Physical force" can mean different things depending on
the context in which it appears. Johnson, 559 U.S. at 139
("Ultimately, context determines meaning."). In Johnson, the
Supreme Court ruled that the statutory element of "force" in the
ACCA should not be automatically understood to have its common law
definition of being "satisfied by even the slightest offensive
touching." Id. (citing 3 W. Blackstone, Commentaries on the Laws
of England 120 (1768)). Instead, statutory context matters: the
use to which the statutory definition is put informs the definition
itself. As used in the ACCA, the phrase "physical force" defined
the term "violent felony." See 18 U.S.C. § 924(e)(2)(B). In such

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a context, the Court ruled, "the phrase 'physical force' means
violent force--that is, force capable of causing physical pain or
injury to another person." Johnson, 559 U.S. at 140.
In Castleman, reviewing the same language in a different
statute, the Court ruled that statutory context compelled the
opposite meaning: here, Congress intended the phrase to have its
common law meaning. 134 S. Ct. at 1410. As in Nason, the federal
statute at issue was the Domestic Violence Gun Offender Ban.
"Domestic violence," the Court ruled, is a "term of art" that
"encompasses a range of force broader than that which constitutes
'violence' simpliciter," including "acts that might not constitute
'violence' in a nondomestic context." Id. at 1411 & n.4.
Distinguishing Johnson, the Court noted that it would be no
"anomaly" for individuals convicted of simple battery against a
domestic partner to be branded "domestic violence offenders,"
whereas treating individuals convicted of non-violent offenses as
"armed career criminals" would not comport with the phrase's
ordinary meaning. Id. at 1412. "Physical force" within the
meaning of the Domestic Violence Gun Offender Ban can thus be
satisfied by a "mere offensive touching"--a standard that casts a
far wider net in the sea of state crime predicates than does
Johnson's requirement of "violent force." 6 Id. at 1413; see also
6 Castleman itself was careful to state that its holding was
confined to section 922(g)(9) and should not be interpreted to

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United States v. Voisine, 778 F.3d 176, 181 (1st Cir.), cert.
granted in part, No. 14-10154, 2015 WL 3614365 (U.S. Oct. 30, 2015)
(explaining why section 16(a) is not analogous to section
922(g)(9)).
The dichotomy between these two statutes resolves the
question of Nason's relevance. Though the same language can be
found in the Domestic Violence Gun Offender Ban and the generic
definition of "crime of violence" in the U.S. Code, the two
statutes serve different purposes and are doing different work.
We thus reason our way through their respective puzzlements
differently. While Nason's interpretive approach may be
appropriate in the context of the more capacious, common law
meaning of "physical force" embodied in the Domestic Violence Gun
Offender Ban, we decline to split with the Second Circuit by
extending such an approach to section 16, which we see as requiring
"violent force." 7
We therefore return, as we must, to the plain language
of the statute, to the lack of any Connecticut authority detracting
from the force of this plain language, and to our own common sense
"cast[] doubt" on decisions ruling that more than a "mere offensive
touching" is required to constitute "physical force" under section
16. Castleman, 134 S. Ct. at 1411 n.4.
7 Indeed, in Castleman, the Supreme Court cited Nason as
typical of court of appeals decisions predating it that had
interpreted physical force to mean "any physical force."
Castleman, 134 S. Ct. at 1410 (quoting Nason, 269 F.3d at 18).

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in understanding the conduct that Connecticut has sought to
criminalize. All point us to the same conclusion reached by our
sister circuit in Chrzanoski: third-degree assault in Connecticut
does not require as an element the use, attempted use, or
threatened use of violent force, is therefore not a "crime of
violence" under section 16(a), and is therefore not an "aggravated
felony" under 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1101(a)(43)(F).
III.
We grant Whyte's petition for review, vacate the BIA's
decision in this matter, and remand to the agency for further
action consistent with this opinion.

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