          United States Court of Appeals
                       For the First Circuit

Nos. 14-1217
     14-1787

                         FREDY VILLANUEVA,

                            Petitioner,

                                 v.

               ERIC H. HOLDER, JR., Attorney General,

                            Respondent.


                  PETITIONS FOR REVIEW OF AN ORDER
                OF THE BOARD OF IMMIGRATION APPEALS


                               Before

                        Lynch, Chief Judge,
                Kayatta and Barron, Circuit Judges.


          Eduardo Masferrer and Masferrer & Associates, P.C. on
brief for petitioner.
          Joyce R. Branda, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Corey L. Farrell, Attorney, Office of
Immigration Litigation, Civil Division, on brief for respondent.



                           April 24, 2015
             LYNCH, Chief Judge.      This is a petition for review of a

Board of Immigration Appeals (BIA) determination that petitioner

Fredy Villanueva is ineligible for consideration for discretionary

relief from removal under a special program.           The BIA's result

depends on an analytical error, and petitioner is eligible for

consideration.    We remand so that petitioner may be considered for

discretionary relief.

             In June 2009, Villanueva, a native of El Salvador living

in the United States, was charged with removability for being a

non-citizen present in the United States without being admitted or

paroled.     See 8 U.S.C. § 1182(a)(6)(A)(i).         Villanueva sought

relief from removal by requesting review of an earlier denial of

his application for Temporary Protected Status (TPS) under 8 U.S.C.

§   1254a.      The   TPS   statute   affords   undocumented   immigrants

protection from removal from the United States upon a determination

by the Attorney General that conditions in the individual's home

country prevent his or her safe return.         Shul-Navarro v. Holder,

762 F.3d 146, 147 (1st Cir. 2014). The Attorney General designated

El Salvador for TPS in 2001 because of a disruption of living

conditions in El Salvador resulting from a series of earthquakes

that occurred that year.        See Designation of El Salvador Under

Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9,

2001); see also Shul-Navarro, 762 F.3d at 147.




                                      -2-
              A non-citizen is ineligible for TPS if he or she has been

convicted       of    an    "aggravated       felony."         See     8      U.S.C.

§§ 1158(b)(2)(A)(ii), (B)(i); id. § 1254a(c)(2)(B)(ii).                     After an

October      2011     hearing,    the   Immigration      Judge       (IJ)    denied

Villanueva's application for TPS on the ground that he had a 2006

conviction for third-degree assault under Connecticut law, which

the IJ determined was a "crime of violence" under 18 U.S.C. § 16,

and       therefore    an   "aggravated       felony."         See     8      U.S.C.

§ 1101(a)(43)(F) (defining "aggravated felony" to include "a crime

of violence (as defined in [18 U.S.C. § 16], but not including a

purely political offense) for which the term of imprisonment [is]

at least one year").        The BIA affirmed the IJ's ruling and later

denied Villanueva's motion for reconsideration.1

              Villanueva    now   petitions     for   review     of    the    BIA's

decisions, arguing that the agency erred in its determination that



      1
          The first BIA decision endorsed the IJ's reasoning on the
"crime of violence" issue in two pages of analysis, but ended its
opinion with the following non-sequitur: "As the respondent has
failed to show that he has not been convicted of a felony or two
misdemeanors committed in the United States, he has not shown
eligibility for TPS." Villanueva argues, and the government does
not dispute, that third-degree assault under Connecticut law is not
a "felony" for purposes of the TPS statute (which is defined
differently from an "aggravated felony" for purposes of 8 U.S.C.
§ 1101(a)(43)(F)) because it does not carry a possible punishment
of more than one year imprisonment. See 8 C.F.R. § 1244.1. The
BIA's order on reconsideration makes clear that the ground for its
denial of Villanueva's TPS application was its holding that
Villanueva had been convicted of an "aggravated felony," as defined
in 8 U.S.C. § 1101(a)(43)(F), not a holding that Villanueva's prior
conviction was a "felony" under the TPS statute.

                                        -3-
his conviction for third-degree assault under Connecticut law

constituted a "crime of violence."              Applying de novo review to the

BIA's analytical method, see United States v. Fish, 758 F.3d 1, 4

(1st Cir. 2014), "including its determination that a non-citizen's

criminal conviction is grounds for removal," Patel v. Holder, 707

F.3d       77,    79   (1st     Cir.   2013),   we   agree   with   Villanueva.

Accordingly, we vacate the BIA's decision and remand this case to

the agency for further proceedings.

                 The statute of conviction, Conn. Gen. Stat. § 53a-61,

provides as follows:

                 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.

Id. § 53a-61(a).              Third-degree assault is a misdemeanor under

Connecticut law.         Id. § 53a-61(b).       However, it carries a maximum

one-year term of imprisonment, see id., meaning that it would

constitute an "aggravated felony" within the meaning of the TPS if

it qualifies as a "crime of violence" under 18 U.S.C. § 16.               See 8

U.S.C. § 1101(a)(43)(F).2


       2
          The conviction is not a "felony" within the meaning of
the TPS statute because that definition requires the crime to be
punishable by a term of imprisonment strictly greater than one
year. See 8 C.F.R. § 1244.1; see also supra note 1.

                                         -4-
            Section 16 defines the term "crime of violence" as

follows:

            (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.      The parties agree that, because third-degree

assault is a misdemeanor under Connecticut law, only subsection (a)

of § 16 is at issue.

            In determining whether a past conviction fits within the

definition of a "crime of violence," we generally apply the

"categorical approach," under which we examine the elements of the

predicate    crime   and    determine     whether   those   elements   are

categorically the same as, or narrower than, the "generic offense"

described by the federal statute.         See Descamps v. United States,

133 S. Ct. 2276, 2281 (2013); see also Fish, 758 F.3d at 5-6.

            However, if a statute is "divisible," -- that is, "if it

sets forth one or more elements of a particular offense in the

alternative" -- we may apply the "modified categorical approach."

Fish, 758 F.3d at 6.       Under the modified categorical approach, we

may examine certain documents in the record of conviction, such as

the indictment, plea agreement, and plea colloquy, in order to

determine under which prong of the divisible statute the defendant

                                    -5-
was actually convicted, and then ask whether that particular crime

categorically falls within the generic offense.          See United States

v. Carter, 752 F.3d 8, 19 (1st Cir. 2014); Patel, 707 F.3d at 80-

81; see also Descamps, 133 S. Ct. at 2281; Shepard v. United

States, 544 U.S. 13, 26 (2005).

           If those documents are inconclusive, then we must discard

the modified categorical approach and determine whether all of the

alternative means of committing the predicate crime fit within the

federal definition of the generic offense.          See Fish, 758 F.3d at

15 (noting that, if there is "no indication" in the record "as to

whether the charge was under a particular subdivision" of a

criminal statute, the court must determine whether the "minimum

criminal conduct" encompassed by the statute qualifies as a crime

of violence (citations and internal quotation marks omitted)).

           The BIA and the government agree that the Connecticut

assault statute does not categorically fit within the definition of

a "crime of violence" because it criminalizes reckless conduct in

subsection (2) and negligent conduct in subsection (3).                 See

Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004) (explaining that "[t]he

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" (alteration in original)); Fish, 758 F.3d at 9-10 & n.4

(holding that "section 16(b) does not reach reckless conduct" and


                                       -6-
collecting cases from other circuits holding that reckless conduct

cannot constitute a crime of violence under § 16).               The BIA, using

the modified categorical approach, adopted the IJ's finding that

Villanueva was convicted under subsection (1) of the Connecticut

statute, which requires intent to cause physical injury and actual

causation of that injury.           The BIA then held that this subsection

constitutes a "crime of violence" under § 16(a).               The government's

brief echoes this line of argument.

               We disagree with the first proposition and do not reach

the second.         The modified categorical approach cannot resolve this

case because it is not established from the record of conviction

under       which    prong   of   the   statute   Villanueva    was   convicted.

Accordingly, given that the entirety of the Connecticut statute

does not qualify as a "crime of violence," we cannot conclude that

Villanueva was convicted of a crime of violence.               We do not reach

the analytically later question of whether a conviction under the

first prong of the Connecticut statute would qualify as a crime of

violence.3

               The BIA's conclusion that Villanueva was convicted under

subsection (1) of the statute was based on a statement by what it



        3
          In Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003),
the Second Circuit answered this question in the negative. Id. at
193-97. The BIA has reached a contrary conclusion. See In re
Martin, 23 I. & N. Dec. 491, 498-99 (B.I.A. 2002). The government
also suggests that there is tension between our decision in United
States v. Nason, 269 F.3d 10 (1st Cir. 2001), and Chrzanoski.

                                         -7-
says was the "respondent's attorney" at the plea colloquy that

"apparently [the respondent] got into an altercation with [the

victim] and he said the [respondent] kicked him in the head causing

a large bump."   But an examination of the plea colloquy in its

entirety reveals that the BIA misread the colloquy.         At the

beginning of the plea hearing, the court asked for the "[f]actual

basis for the assault," and the prosecutor (not Villanueva's

attorney) responded:

          It was January 11, 2006 in the town of South
          Windsor, Your Honor, at Nutmeg Recycling.
          Apparently he . . . got into an altercation
          with a Samuel [INDECIPHERABLE] and he said
          that the defendant kicked him in the head
          causing a large bump. It was like an argument
          on the loading docks there.

Villanueva's attorney then initially asked if his client could

enter an Alford plea to the assault charge, and asked the court to

explain the consequences of an Alford plea to his client.      The

following colloquy ensued:

          THE COURT: All right. Fredy, the State just
          indicated on the record what are things
          happened [sic] that constitute the assault in
          the third degree. Under the Alford plea you
          disagree with some of those facts, but after
          talking to [your attorney] you come to the
          conclusion that if you go to trial you could
          be found guilty beyond a reasonable doubt. So
          basically you're asking the Court to accept
          your plea without admitting all the facts so
          you could dispose of this matter by the offer
          that's been made on the record. Is that what
          you want to do?

          MR. VILLANUEVA:    Well [SPANISH]


                                 -8-
            THE COURT:     Sí or no?

            MR. VILLANUEVA: Um . . . Um . . . It's not
            clear for me now 'cause I don't understand
            what she's talking.

            THE COURT:   Pass it to go out and talk to
            [your attorney].

            After    a   break    in     which    the   court    conducted    other

business, Villanueva and his attorney returned to continue the plea

hearing. Villanueva's attorney asked the court "if we could vacate

the prior pleas and elections including the ones that were just

entered under the Alford plea because what I'd like to do is submit

a nolo plea, Your Honor.          So I've explained that to him."                  The

court agreed and then addressed Villanueva: "All right.                     And you

understand you have a criminal conviction for assault in the third

degree.    By submitting a nolo plea the Court will make a finding of

guilty."    Villanueva responded affirmatively.

            "[T]he facts revealed by the plea colloquy are not

sufficient    to    identify     which    crime    .    .   .   is   the   crime   of

conviction."        Patel, 707 F.3d at 83 (citations and internal

quotation marks omitted).              The record does not establish that

Villanueva agreed to the prosecutor's version of events.                    He pled

nolo contendere only to an undifferentiated generic reference to

the statute.    His attorney was originally going to have Villanueva

enter an Alford plea (under which Villanueva would admit guilt but

not the underlying facts), but then, after a break necessitated by

Villanueva's inability to understand the proceedings and the nature

                                         -9-
of the charges against him, the attorney asked the court to "vacate

the prior pleas and elections" and to allow Villanueva to enter a

plea of nolo contendere to third-degree assault.                          The court

obliged,   and      there    was    no   further       discussion   of    the   facts

underlying    the    plea.         In   short,   the    plea   colloquy    does   not

establish that Villanueva admitted to an intentional assault under

subsection (1) of the Connecticut statute, and so the BIA erred in

concluding that he was convicted under that subsection. Cf. id. at

82-83.

             Because the parties agree that third-degree assault, as

defined by Connecticut law, is not categorically a crime of

violence, see Leocal, 543 U.S. at 9; Fish, 758 F.3d at 9-10 & n.4,

we hold that Villanueva's conviction does not render him ineligible

for TPS. Accordingly, we vacate the BIA's decision and remand this

case to the agency so it may determine whether Villanueva warrants

TPS relief as a matter of discretion.              See 8 C.F.R. § 1244.2.




                                          -10-
