          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.
December 9, 2015
         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.




                                     - 3 -
                                          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


                                      - 4 -
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.


                                  - 5 -
                                    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

      2The 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 . . . .").


                                   - 6 -
          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


                               - 7 -
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


                                   - 8 -
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.


                                       - 9 -
                                 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)).


                               - 10 -
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.


                                 - 11 -
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.




                                - 12 -
            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


                                    - 13 -
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


                                    - 14 -
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


                                 - 15 -
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


                                     - 16 -
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


                                - 17 -
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


                                     - 18 -
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).


                                     - 19 -
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.




                                    - 20 -
