CA1 on Aggravated Felony: Whyte v. Lynch

Whyte v. Lynch, Dec. 9, 2015 - "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. ... 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 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). 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."  [Hats way off to Virginia Benzan of the Suffolk Univ. Immigration Law Clinic and Sejal Zota, Legal Director at NIP/NLG!]