MARTIN

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 (BIA 2002)                                   Interim Decision #3481




                    In re Jacques MARTIN, Respondent
                             File A30 335 457 - Suffield
                             Decided September 26, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

   The offense of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut
General Statutes, which involves the intentional infliction of physical injury upon another, is
a crime of violence under 

(a) (2000) and is therefore an aggravated felony
under section 101(a)(43)(F) of the Immigration and Nationality Act, 

(a)(43)(F)
(2000).
FOR RESPONDENT: Michael G. Moore, Esquire, Springfield, Massachusetts

BEFORE: Board En Banc:       SCIALABBA, Chairman; DUNNE, Vice Chairman;
            HOLMES, HURWITZ, VILLAGELIU, COLE, GUENDELSBERGER,
            GRANT, MOSCATO, MILLER, OSUNA, OHLSON, and HESS, Board
            Members. Dissenting Opinion: ROSENBERG, Board Member, joined by
            ESPENOZA, Board Member; PAULEY, Board Member, joined by
            SCHMIDT, FILPPU, and BRENNAN, Board Members.

COLE, Board Member:

   In a decision dated January 9, 2002, an Immigration Judge concluded that
the respondent was removable from the United States under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 

(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony.
The respondent has appealed from that decision, arguing that the Immigration
Judge erred as a matter of law in finding him removable and requesting that
removal proceedings be terminated. The Immigration and Naturalization
Service has not filed an opposition to the respondent’s appeal. The appeal
will be dismissed.
               I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of Canada who entered the United
States as a lawful permanent resident in 1970. The record reflects that on
April 19, 2001, he was convicted pursuant to a guilty plea in the Superior
Court for the Judicial District of New Britain, Connecticut, of the offense of
third-degree assault in violation of section 53a-61 of the Connecticut General

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Statutes, which is a class A misdemeanor under Connecticut law. He was
sentenced to a 1-year term of imprisonment.
   On the basis of this conviction, the Service charged the respondent with
removability as an alien convicted of a crime of violence for which a term of
imprisonment of at least 1 year was imposed, which is an aggravated felony
under section 101(a)(43)(F) of the Act, 

(a)(43)(F) (2000).
The Immigration Judge sustained the charge of removability, finding that the
respondent’s offense constituted a “crime of violence” under 

(a) (2000). Accordingly, the respondent was ordered removed to
Canada.

                                       II. ISSUE
  The respondent’s appeal raises the question whether the offense of third-degree assault in violation of Connecticut law constitutes a crime of violence
under 

 and is therefore an aggravated felony under section
101(a)(43)(F) of the Act.

                             III. SCOPE OF REVIEW
   Both the respondent’s criminal conviction and his removal proceedings
occurred in Connecticut. Because this appeal requires us to determine the
scope of 

, a provision of federal criminal law incorporated by
reference in the Immigration and Nationality Act, our adjudication is governed
by the authoritative precedents of the United States Court of Appeals for the
Second Circuit. See, e.g., Matter of Yanez, 

 (BIA 2002);
Matter of Anselmo, 

 (BIA 1989). Under general Second
Circuit principles, the determination whether a state crime is a “crime of
violence” must be made by reference to the statutory definition of the crime,
as elucidated by the courts of the convicting jurisdiction. See Dalton
v. Ashcroft, 

 (2d Cir. 2001) (relying on the statutory and
decisional law of New York to determine that a conviction under section
1192.3 of the New York Vehicle and Traffic Law was not a crime of violence
under 

(b)).
              IV. RELEVANT STATUTORY AUTHORITY
  The respondent was convicted under section 53a-61(a) of the Connecticut
General Statutes, which 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.

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Conn. Gen. Stat. § 53a-61(a) (2000). We agree with the Immigration Judge’s
conclusion that the respondent was convicted under section 53a-61(a)(1).
Accordingly, we confine our analysis to that section, which criminalizes acts
that intentionally cause “physical injury” to others.1 The record of the
respondent’s conviction, which in this case includes an official transcript of
his plea colloquy before the state trial judge, reveals that his conviction arose
from an act of domestic violence in which he intentionally used actual and
threatened physical force against his ex-girlfriend, with the intention of
injuring her and with the result that she suffered a “physical injury.”
   Section 101(a)(43) of the Act defines the categories of offenses that qualify
as aggravated felonies under the immigration laws and provides that the term
“aggravated felony” applies to “an offense described in this paragraph
whether in violation of Federal or State law.” Included in the aggravated
felony definition is
    a crime of violence (as defined in section 16 of title 18, United States Code, but not
    including a purely political offense) for which the term of imprisonment [is] at least one
    year.

Section 101(a)(43)(F) of the Act. The term “crime of violence” referenced
in this portion of the aggravated felony definition is, in turn, defined as
       (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.

.
   The offense of third-degree assault is classified as a misdemeanor under
Connecticut law, and because the offense is punishable by a maximum term
of imprisonment of 1 year, it is also a misdemeanor for purposes of federal
law. See 

(a)(5) (2000) (classifying “felonies” as offenses
punishable by a term of imprisonment of more than 1 year). Therefore, the
respondent’s offense cannot constitute a crime of violence under 

(b), which is confined to felony offenses by its terms. The status of the
respondent’s offense as a crime of violence must therefore be examined by
reference to 

(a). 2

1
  For purposes of section 53a-61, Connecticut law defines “physical injury” as “impairment
of physical condition or pain.” Conn. Gen. Stat. § 53a-3(3) (2000).
2
   The Second Circuit has held that state misdemeanor offenses that satisfy the crime of
violence definition of 

(a) may constitute aggravated felonies under section
101(a)(43)(F) of the Act if they result in a term of imprisonment of at least 1 year. See United
                                                                                  (continued...)

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          V. ASSAULT OFFENSES AS CRIMES OF VIOLENCE
                     UNDER 

(a)
   The legislative history of the crime of violence definition provides explicit
support for the conclusion that an assault involving the intentional infliction
of physical injury has as an element the use of physical force within the
meaning of 

(a). This conclusion is bolstered by recent
decisions from several federal appeals courts interpreting 

 and
other federal statutes containing virtually identical language, as well as
Connecticut decisions indicating that the use or threatened use of physical
force is inherent to the offense of third-degree assault under section
53a-61(a)(1).
                     A. Legislative History of 

  The Senate Judiciary Committee’s Report on the Comprehensive Crime
Control Act of 1983, which defined the phrase “crime of violence” under

, specifically stated that a crime of violence
    means 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 any felony that, by its nature,
    involves the substantial risk that physical force against another person or property may be
    used in the course of its commission. The former category would include a threatened or
    attempted simple assault or battery on another person . . . .

S. Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3486-87 (emphasis added).
   The Judiciary Committee Report also indicated in a footnote that offenses
under 

(e) (now codified at 

(a)(5))—which
criminalizes misdemeanor “simple assault” in cases arising within the
maritime or territorial jurisdiction of the United States—would qualify as
crimes of violence under 

(a). S. Rep. No. 98-225, at 307
n.11. As the Second Circuit has acknowledged, “simple assault” under

(a)(5) embraces the common law meaning of the term, which
is defined as a crime “‘committed by either a willful attempt to inflict injury
upon the person of another, or by a threat to inflict injury upon the person of
another which, when coupled with an apparent present ability, causes a
reasonable apprehension of immediate bodily harm.’” United States
v. Chestaro, 

 (2d Cir. 1999) (quoting United States
v. Johnson, 

, 1242 n.26 (9th Cir. 1980)), cert. denied, 

 (2000).
2
    (...continued)
States v. Pacheco, 

 (2d Cir. 2000) (affirming a lower court finding that
the defendant’s conviction for misdemeanor simple assault under Rhode Island law constituted
a crime of violence), cert. denied, 

 (2001).

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   By expressly including misdemeanor simple assault offenses within the
crime of violence definition at 

(a), Congress unequivocally
manifested its understanding that assault offenses involving the intentional
infliction or threatened infliction of “injury” or “bodily harm,” such as those
described by 

(a)(5) and section 53a-61(a)(1) of the
Connecticut General Statutes, have as an inherent element the actual or
threatened use of physical force.3
                        B. Relevant Federal Decisional Law
                                     1. Second Circuit
   The Second Circuit has not yet confronted the precise question involved
in this case, namely whether an assault offense defined under section
53a-61(a)(1) of the Connecticut General Statutes or another closely analogous
statute has as an element the use, attempted use, or threatened use of physical
force. However, the Second Circuit’s criminal jurisprudence recognizes
assault as an “offense that generically involves use of force against another
person.” United States v. Morales, 

 (2d Cir. 2000).
   In Dalton v. 

 the Second Circuit concluded that an alien
convicted of driving while intoxicated in violation of New York law was not
removable from the United States for having committed a crime of violence
under 

. We have scrutinized the Second Circuit’s analysis in
Dalton at length, and we find the case instructive on certain pertinent points.4
3
   The dissenting opinion of Board Member Rosenberg asserts that the meaning of the word
“element” appearing in 

(a) is so obvious that it is improper for us to consult
legislative history as an aid to interpretation. Matter of Martin, 

, 501 n.2,
506 (BIA 2002) (Rosenberg, dissenting). However, three federal courts of appeals have, in
contexts highly similar to those presented here, declined to interpret the word “element” in the
manner advanced by the dissenting Board Members. Since the meaning of the word is less
obvious than the dissenters suggest, it is entirely consistent with the law, and with our
traditional practice, to consult reliable sources of legislative history as a means of determining
whether “there is ‘clearly expressed legislative intention,’ contrary to [the statutory] language,
which would require us to question the strong presumption that Congress expresses its intent
through the language it chooses.’” INS v. Cardoza-Fonseca, 

, 432 n.12 (1987)
(quoting United States v. James, 

 (1986); Consumer Product Safety
Comm’n v. GTE Sylvania, Inc., 

 (1980)); see also Matter of Blancas,

 (BIA 2002); Matter of Rodriguez-Tejedor, 

, 168 n.5
(BIA 2001) (Rosenberg, concurring and dissenting); Matter of Li, 

 (BIA
1993). In the instant case, legislative history reflects a “clearly expressed legislative intention”
regarding the status of simple assault offenses under 

(a) that is flatly contrary
to the position advanced by the dissenters.
4
  For instance, Dalton suggests that the concept denoted by the phrase “use of physical force”
implies an intentional (as opposed to accidental or reckless) availment of force. See Dalton
v. 

. This requirement is plainly satisfied by section 53a-61(a)(1) of
                                                                                   (continued...)

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We conclude, however, that the rule of law articulated in Dalton is inapposite
to the present case.
   Dalton addressed 

(b), which applies only to a felony
offense that “by its nature” presents a serious potential risk that physical
force will be used in the course of its commission. As the Dalton court
observed, the language of 

(b) required it to focus on the
“intrinsic nature” of the offense, viewed in the abstract. See Dalton v.

. Applying this analysis, the court concluded that the
offense of driving while intoxicated, viewed as an abstraction, did not present
a serious potential risk that physical force would be used in its commission.
By contrast, the case at bar concerns 

(a) and requires us to
determine whether, as a factual matter, the respondent’s assault offense under
section 53a-61(a)(1) of the Connecticut General Statutes, which involved the
intentional infliction of physical injury upon his victim, had the use of
physical force as an element. We are not called upon to postulate whether the
metaphysical concept of “assault” has physical force as an element.
                                   2. Other Circuits
   Because the issue in this case is a matter of first impression in the Second
Circuit, it is entirely proper for us to consult instructive precedent from other
circuits as an aid to interpretation. See Matter of Yanez, supra (looking to
out-of-circuit law to determine the meaning of the phrase “drug trafficking
crime” in a case where the circuit of immediate concern had not yet
interpreted that phrase). The United States Courts of Appeals for the First,
Eighth, and Ninth Circuits have held that state-law assault offenses involving
the intentional infliction of physical injury have “as an element the use of
physical force.” See United States v. Nason, 

 (1st Cir. 2001);
United States v. Ceron-Sanchez, 

 (9th Cir. 2000);
United States v. Smith, 

 (8th Cir. 1999). Although none of
these circuit court cases arose in the context of civil immigration proceedings,
the legal issue resolved in each case was whether state assault offenses had
as an element the use of physical force. We therefore consider the cases to
be highly persuasive authority.
   United States v. 

 is a criminal case involving an
alien charged with illegally reentering the United States after being deported

4
    (...continued)
the Connecticut General Statutes, which carries a mens rea of “intent” with respect to both the
requisite infliction of physical injury and the conduct that causes that injury. As a practical
matter, an offender’s reckless or negligent application of physical force cannot “cause” an
intentional infliction of physical injury. On the contrary, for an injury to be inflicted
intentionally, the physical force that “causes” the injury must also be “used” intentionally.


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subsequent to an aggravated felony conviction. The Ninth Circuit concluded
that the defendant’s prior Arizona conviction for aggravated assault, i.e.,
assault with a deadly weapon or dangerous instrument, constituted a crime of
violence under 

(a) and an aggravated felony under section
101(a)(43)(F) of the Act. The Arizona statute at issue in the case defined
assault, in pertinent part, as “[i]ntentionally, knowingly or recklessly causing
any physical injury to another person.” 

(A)(1)
(2000). In rejecting the defendant’s argument that a person convicted of
reckless conduct under this statute would not have been convicted of a crime
of violence, the court stated the following:
    [I]n order to support a conviction under § 13-1203(A)(1), the reckless conduct must have
    caused actual physical injury to another person. Therefore, the use of physical force is a
    required element of § 13-1203(A)(1). . . . 

(A) requires either the
    use, attempted use, or threatened use of force against the person of another, and by
    incorporation, a conviction [for aggravated assault under Arizona law] meets the definition
    of crime of violence set out in 

(a).

United States v. 

.
   In United States v. 

 the First Circuit was confronted with the
question whether the offense of assault under Maine’s general-purpose
assault statute had as an element the use of physical force.5 The Maine
statute provided that “[a] person is guilty of assault if he intentionally,
knowingly, or recklessly causes bodily injury or offensive physical contact
to another.” Me. Rev. Stat. Ann. tit. 17-A, § 207(1) (West 2001). After
observing that “[t]he breadth of conduct covered by the bodily injury branch
of the . . . statute unambiguously involves the use of physical force,” the
court concluded that “to cause physical injury, force necessarily must be
physical in nature. Accordingly, physical force is a formal element of assault
under the bodily injury branch of the Maine statute.” United States v. 

. The “bodily injury branch” of the Maine statute at issue in
Nason is practically indistinguishable from section 53a-61(a)(1) of the
Connecticut General Statutes.
   Similarly, in United States v. 

 the Eighth Circuit concluded
that the offense of assault as defined by Iowa law had the use of physical
force as an element. The Iowa statute defined assault, in pertinent part, as
“[a]ny act which is intended to cause pain or injury to, or which is intended

5
   United States v. 

 and United States v. 

 involved federal
prosecutions under 

(g)(9), which criminalizes the possession of firearms by
persons previously convicted of a “misdemeanor crime of domestic violence.” Like the phrase
“crime of violence” at issue in the instant case, the phrase “misdemeanor crime of domestic
violence” at issue in Nason and Smith is defined, in pertinent part, as an offense that “has, as
an element, the use or attempted use of physical force.” 

(a)(33)(A)(ii) (2000).


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to result in physical contact which will be insulting or offensive to another,
coupled with the apparent ability to execute the act.” 

(1)
(1999). After finding, on the basis of the state complaint, that the defendant
had been charged under the “intended to cause pain or injury” clause of this
statute, the court held that the defendant had pleaded guilty to “an offense
with an element of physical force.” United States v. 

.
Once again, the “intended to cause pain or injury” clause of the Iowa statute
at issue in Smith cannot be meaningfully distinguished from the Connecticut
statute at issue in the instant case.
   Thus, in addition to an authoritative statement of congressional intent
regarding the applicability of 

(a) to simple assault cases, the
three federal appeals courts that have confronted the question concluded that
assault offenses involving the intentional infliction of physical injury include
the use of physical force as an element.
     VI.    THIRD-DEGREE ASSAULT UNDER CONNECTICUT
                LAW AS A “CRIME OF VIOLENCE”
   Congress explicitly directed that assault offenses be included in the crime
of violence definition set forth at 

(a). Moreover, decisional
law of several federal circuit courts holds that assault offenses involving the
intentional infliction of physical injury have as an element the use of physical
force. This authority compels the conclusion that the respondent’s third-degree assault offense under section 53a-61(a)(1) of the Connecticut General
Statutes constitutes a crime of violence and is therefore an aggravated felony
under section 101(a)(43)(F) of the Act.
   We agree with the conclusion of the First, Eighth, and Ninth Circuits that
where proof of the intentional infliction of physical injury is necessary to
sustain a conviction, as under section 53a-61(a)(1), the requisite injury must
be “caused” by an intentional “use” of physical force. This conclusion is
also supported by a review of Connecticut decisional law, which reveals that
in all reported cases involving prosecutions under section 53a-61(a)(1), the
“physical injury” necessary to sustain a conviction was caused by the
defendant’s intentional use or threatened use of physical force against the
person of another. See, e.g., State v. Palozie, 

 (Conn. 1973)
(victim slapped in the face and struck on the nose); State v. Rodriguez, 

 (Conn. App. Ct. 2002) (victim punched in the face); State
v. Henderson, 

 (Conn. App. Ct. 1995) (victim grabbed, hit, and
threatened with a knife); State v. Egan, 

 (Conn. App. Ct. 1986)
(victim slapped, kicked, and threatened); State v. Atkinson, 

(Conn. Super. Ct. 1999) (victim choked). Consequently, we conclude that the
actual or threatened use of physical force is an inherent element of the offense
described in section 53a-61(a)(1). The respondent’s conviction under that

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section constitutes a conviction for a crime of violence under 

(a). Further, because the respondent was sentenced to a 1-year term of
imprisonment for the offense, it also constitutes an aggravated felony under
section 101(a)(43)(F) of the Act, which renders him removable from the
United States under section 237(a)(2)(A)(iii) of the Act.

                             VII. CONCLUSION
   The respondent was convicted of a violation of section 53a-61(a)(1) of the
Connecticut General Statutes, involving an assault that intentionally caused
physical injury to his victim. The legislative history of 

 and
the decisional law of Connecticut and several federal circuit courts of appeals
compels the conclusion that this offense had as an element the use of physical
force against the person of another, such that it may be deemed a “crime of
violence” under 

(a). As a “crime of violence” under

 for which a term of imprisonment of at least 1 year was
imposed, the respondent’s offense also qualifies as an aggravated felony
under section 101(a)(43)(F) of the Act. Consequently, we agree with the
Immigration Judge that the respondent is removable from the United States as
an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of
the Act. The respondent has not requested any form of relief or protection
from removal. Accordingly, the appeal will be dismissed.
   ORDER: The appeal is dismissed.
DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in
which Cecelia M. Espenoza, Board Member, joins
   I respectfully dissent.
   To uphold the Immigration Judge’s conclusion that the respondent’s
misdemeanor conviction under section 53a-61 of the Connecticut General
Statutes amounts to a crime of violence as defined in 

(a)
(2000), we must find that “the elements of the offense [are] such that
physical force is an element of the crime.” Matter of Sweetser, 

 (BIA 1999); see also Matter of Alcantar, 

(BIA 1994). As we emphasized in Matter of Sweetser, supra, “[T]he focus
is on the elements required to sustain the conviction.” Id. at 6 (emphasis
added) (citing Matter of Pichardo, 

 (BIA 1996)).
   I agree with dissenting Board Member Pauley that the majority
misapprehends the elements of the offense and fails to differentiate between
the causation of an injury and an injury’s causation by the “use of physical
force.” Cf. Dalton v. Ashcroft, 

 (2d Cir. 2001)
(distinguishing the risk of injury and the “use of physical force” under

(b)). However, I also take issue with the majority’s failure to

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give effect to the plain language of the statute and its insistence that the crime
of intentionally causing physical injury necessarily has as “an inherent
element” the actual or threatened “use of physical force.” Matter of Martin,

, 495, 498 (BIA 2002) (emphasis added). I am also troubled
by the majority’s disregard of applicable Board precedents and unwarranted
reliance on out-of-circuit federal case law.
   The actual or threatened use of physical force referred to in 

(a) is not an element that must be proved to sustain a conviction under
section 53a-61 of the Connecticut General Statutes. As the respondent has
not been convicted of an offense amounting to a crime of violence under

(a), he is not removable as an alien convicted of an aggravated
felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,

(a)(2)(A)(iii) (2000). Therefore, his appeal should be
sustained and the proceedings should be terminated.
                                     I. ISSUE
    The issue before us on appeal is straightforward: Is a misdemeanor
conviction for third degree assault under section 53a-61 of the Connecticut
General Statutes a crime of violence as defined in 

(a), i.e., is
it “an offense that has as an element the use, attempted use, or threatened use
of physical force”? (Emphasis added.)
               II. STATUTORY INTERPRETATION AND
                        PLAIN LANGUAGE
   It is settled doctrine that “the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 

 (1984).
See generally Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook 820
(8th ed. 2002). In addition, the Supreme Court has stated “time and again that
courts must presume that a legislature says in a statute what it means and
means in a statute what it says there.” Connecticut National Bank
v. Germain, 

 (1992) (citing United States v. Ron Pair
Enterprises, Inc., 

 (1989); United States v. Goldenberg,

 (1897); Oneale v. Thornton, 

 (1810)).
Accordingly, “[w]hen the words of a statute are unambiguous, then . . .
‘judicial inquiry is complete.’” Connecticut National Bank v. 

 at 254 (quoting Rubin v. United States, 

 (1981)).
   Section 101(a)(43)(F) of the Act, 

(a)(43)(F) (2000),
provides that “[t]he term ‘aggravated felony’ means . . . a crime of violence
(as defined in section 16 of title 18, United States Code . . .) for which the
term of imprisonment is at least 1 year.” In turn, 

(a) defines

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a crime of violence as “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or property of
another.” (Emphasis added.)1
   We have found the language used by Congress in 

 to be
plain and unambiguous. Matter of Ramos, 

 (BIA 2002)
(stating that “[w]here, as here, the language is plain,” we would assume that
the ordinary meaning of the words used reflects Congress’ intent (emphasis
added)); see also INS v. Cardoza-Fonseca, 

 (1987); INS
v. Phinpathya, 

 (1984); American Tobacco Co.
v. Patterson, 

 (1982); Richards v. United States, 

 (1962). 2 Our task, therefore, in determining the issue before us on appeal
is to interpret the ordinary and commonly understood meaning of the terms
“element” and “use of physical force” in 

(a), and then to
evaluate the respondent’s Connecticut misdemeanor conviction according to
that interpretation.
                   A. “Element” as Used in 

(a)
    Our analysis begins with “‘the language of the statute.’” Hughes Aircraft
Co. v. Jacobson, 

 (1999) (quoting Estate of Cowart
v. Nicklos Drilling Co., 

 (1992)). As the United States
Court of Appeals for the Second Circuit, in which this case arises, has
reiterated, “‘[I]t is our duty to give effect, if possible, to every clause and
word of a statute.’” United States v. Gitten, 

, 80 (2d Cir. 2001)
(quoting United States v. Menasche, 

 (1955)).
    The statute in question, 

(a), refers specifically to crimes in
which the use of physical force is an element of the offense. In legal usage,
it is universally understood that an element is one of the factors, such as the
actus reus, mens rea, and causation, that must be proved to obtain a
1
   As the respondent’s conviction was for a misdemeanor, 

(b), which applies
only to felony convictions, is inapplicable.
2
  The majority argues that the legislative history provides “explicit support” for the conclusion
that the offense of intentionally causing physical injury has as an element the use of physical
force. Matter of Martin, supra, at 494. However, “legislative history only comes into play
where there is an ambiguity in the statutory language.” Apex Express Corp. v. Wise Co., Inc.,

 (4th Cir. 1999). At most, “we look to the legislative history to determine
only whether there is ‘clearly expressed legislative intention,’ contrary to [the statutory]
language, which would require us to question the strong presumption that Congress expresses
its intent through the language it chooses.” INS v. 

 at 432 n.12
(emphasis added) (quoting United States v. James, 

 (1986); Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 

 (1980)). Moreover, each
offense must be construed according to the particular terms of the statute under which the
offender is convicted. Matter of B-, 

 (BIA 1996).


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conviction of the crime defined in the statute the defendant is charged with
having violated. See Black’s Law Dictionary 424 (7th ed. 1999); see also
Matter of Sweetser, supra.
    Whether or not a particular element exists turns on an examination of the
individual statute. Almendarez-Torres v. United States, 

(1998) (citing Hamling v. United States, 

 (1974)). This
examination is a categorical one, accomplished by “looking only to the
statutory definition[] . . . and not to the particular facts underlying [the
conviction].” United States v. Taylor, 

 (1990); see also
Matter of B-, 

 (BIA 1996) (ruling that under 

, “we look to the statutory definition, not the underlying circumstances of
the crime”); Matter of Bart, 

 (BIA 1992) (ruling that an
element of an offense either is expressly articulated in the statute or required
by state decisions to obtain a conviction). If the relevant criminal statute is
plain on its face, our consideration is limited to the elements necessary to
prove a conviction under its terms, and additional evidence indicating the
respondent’s actual conduct is not pertinent. See Matter of Perez-Contreras,

 (BIA 1992) (holding that where the elements of an
assault statute did not include use of a weapon, such evidence had no bearing
on the nature of the offense).
    Although we recently modified our reading of 

(b), Matter
of Ramos, supra, we have never deviated from our consistently held position
that to constitute a crime of violence under § 16(a), the use of force must be
an actual element of the underlying offense. For example, in Matter of
Palacios, 

 (BIA 1998), we ruled that “either the elements of
the offense must be such that physical force is an element of the crime, or
. . . the nature of the crime . . . must be such that its commission ordinarily
would present a risk that physical force would be used against the person or
property of another.” 

 (emphasis added) (citing Matter of Alcantar,
supra, at 812).
    Accordingly, in Matter of Magallanes, 

 (BIA 1998),
overruled on other grounds, Matter of Ramos, supra, we found that “the
statutory requirements for a [driving under the influence] conviction under
either section 28-692(A)(1) or section 28-697(A)(1) do not include as an
element the use, attempted use, or threatened use of physical force against the
person or property of another.” Id. at 3 (emphasis added). Likewise, in
Matter of Puente, 

 (BIA 1999), overruled on other
grounds, Matter of Ramos, supra, we noted that the parties agreed that the
Texas statute “does not include as an element the use, attempted use, or
threatened use of physical force against the person or property of another”
and ruled that “[t]herefore, 

(a) is inapplicable to this case.”
Id. at 1011 (emphasis added); see also Matter of Ramos, supra, at 339


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(“Neither party claims that the respondent’s offense qualifies as a crime of
violence under 

(a).”).
   Furthermore, in recently assessing the offense of sexual abuse of a minor,
we found that “as the respondent’s offense does not involve as an element the
use of violent or destructive physical force, it also does not qualify as a
crime of violence pursuant to 

(a).” Matter of Small, 

, 449 n.1 (BIA 2002) (emphasis added) (citing United States
v. Landeros-Gonzales, 

 (5th Cir. 2001)). Each of these
cases reflects that we have interpreted the term “element” consistently with
its common, ordinarily understood meaning in the context of criminal and
immigration law—that the offense must require evidence of the use of
physical force to sustain the conviction. According to this reading, the
respondent’s conviction “does not satisfy the test set forth at 

(a).” Matter of Magallanes, supra, at 3.
        B. “Use of physical force” as an Element of the Offense
   The Connecticut offense of assault in the third degree requires proof that
the defendant “ [w]ith intent to cause physical injury to another person . . .
causes such injury to such person or to a third person.” Conn. Gen. Stat.
§ 53a-61(a)(1) (2000) (emphasis added). The elements of the offense are:
intent to cause physical injury, to another person, and, causation of such
injury to that person or a third person. The statute does not specifically refer
to or require proof of the actual, attempted, or threatened use of physical
force to sustain a conviction.
   The “use of physical force” is a term of art with a specific and limited
meaning. In legal usage, force is defined as: “Power, violence, compulsion,
or constraint exerted upon or against a person or thing[;] . . . strength directed
to an end.” Black’s Law Dictionary 644 (6th ed. 1990) (citation omitted).
“Physical force” is “[f]orce applied to the body; actual violence.” Id. at
1147. By contrast, an “injury” is defined as “[a]ny wrong or damage done to
another, either in his person, rights, reputation or property. The invasion of
any legally protected interest of another.” Id. at 785.
   In addition, the term “use” has been construed as meaning “active
employment,” Bailey v. United States, 

 (1995), and
“intentional availment.” United States v. Rutherford, 

 (7th
Cir. 1995) (citing Webster’s Ninth New Collegiate Dictionary 1299 ( 1986));
see also Black’s Law Dictionary 1541 (6th ed. 1990) (defining “use” as “[t]o
make use of; to convert to one’s service; to employ; to avail oneself of; to
utilize; to carry out a purpose or action by means of”). Thus, the term
“element” used in relation to “use of physical force” covers only offenses in
which there must be evidence of such violent force being intentionally and


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actively attempted, threatened, or actually used, i.e., actively employed by
the perpetrator.
   It is clear from these definitions that the use of physical force and the
causation of injury or resulting harm are not the same. Dalton v. 

 (“There are many crimes that involve a substantial risk of injury
but do not involve the use of force.”). Consequently, the reference in

(a) to a crime that has as an element the use of physical force
does not encompass every offense in which an injury is caused, even if the
injury could have been caused by force or there is a risk that the offender
might have resorted to force. In Matter of Sweetser, supra, at 716, a
unanimous 1999 decision, we agreed on such a distinction, stating that “‘the
use of physical force’ is an act committed by a criminal defendant, while the
‘risk of physical injury’ is a consequence of the defendant’s acts.” Following
Matter of Sweetser in Matter of Puente, supra, we acknowledged once again
that while “[c]riminal offenses that carry a substantial risk that force will be
used also share the potential to result in harm . . . we recognize that offenses
that have the potential for harm do not always carry a substantial risk that
force will be used in their commission.” Id. at 1013 (emphasis added).
   Therefore, the “element of the offense” inquiry made under § 16(a) and the
“nature of the offense” inquiry made under § 16(b) are not interchangeable.
Indeed, in Matter of Puente, supra, the majority criticized the respondent’s
argument because it “fail[ed] to acknowledge the significant contextual
distinction between the term ‘use’ in § 16(a) and the phrase ‘may be used’ in
§ 16(b),” positing that “[t]he focus in § 16(a) is on the statutory elements of
the offense, whereas the focus in § 16(b) is on the nature of the crime.” Id.
at 1012. Furthermore, the concurring Board Members in Matter of Puente,
supra, reasoned that “[u]nder § 16(a), as under clause (i) of U.S.S.G.
§ 4B1.2(1), the offense must have, as an element, the use, attempted use, or
threatened use of physical force,” so that “the focus in § 16(a) is on the
statutory elements of the offense and whether those elements specifically
include the use (or attempt or threat) of force.” Id. at 1016-17 (Grant,
concurring). The concurring Board Members concluded, “[I]n the context of
§ 16(a), a requirement of specific intent to use force is a reasonable
implication because force must be an element of the crime, not merely
something that is a possible consequence or risk.” Id. at 1017.
   I agree with this differentiation. I also conclude, however, that this
reasoning cannot be applied disparately, and that it controls the outcome of
this case.




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   III. EVALUATION OF THE RESPONDENT’S CONNECTICUT
          CONVICTION IN RELATION TO THE FEDERAL
                  IMMIGRATION STATUTE
   It is well established that we look to the elements of the crime, as provided
in the state law under which the alien was convicted, to determine the
consequence of that conviction in removal proceedings. Matter of H-, 

, 360 (BIA 1956). In Matter of Torres-Varela, 

(BIA 2001), we reaffirmed that “the specific statute under which the
conviction occurred is controlling.” 

 at 84 (citing Matter of Khourn,

 (BIA 1997)); see also Matter of Short, 

 (BIA 1989) (“The statute under which the conviction occurred
controls.”). In addition, state labels, i.e., how a state refers to an offense, do
not determine whether a crime is a crime of violence. See United States v.

 at 591-92 (citing United States v. Nardello, 

 (1969)).
   The elements of an underlying criminal offense must correspond to those
in the federal immigration statute for a conviction of that offense to support
a removal order. For example, in Matter of Espinoza, 

(BIA 1999), we determined that a conviction relating to misprision of a felony
was not a crime relating to obstruction of justice under section 101(a)(43)(S)
of the Act, because the elements of the crime of misprision of a felony
require evidence “that the principal committed and completed the felony
alleged and that the defendant had full knowledge of that fact, failed to notify
the authorities, and took an affirmative step to conceal the crime.” Proof of
such elements “do not constitute the crime of obstruction of justice as that
term is defined in the United States Code.” 

 (referring to crimes
that “have as an element interference with the proceedings of a tribunal or
require an intent to harm or retaliate against others”).
   Consistent with the discussion of the term “element” above, we emphasized
that “although misprision of a felony bears some resemblance to [the offenses
listed in Title 18 of the Code], it lacks the critical element of an affirmative
and intentional attempt, motivated by a specific intent, to interfere with the
process of justice.” 

 (emphasis added). Consequently, we ruled
that “[w]e do not believe that every offense that, by its nature, would tend to
‘obstruct justice’ is an offense that should properly be classified as
‘obstruction of justice,’” 

 (emphasis added), because to “include
all offenses that have a tendency to, or by their nature do, obstruct justice
would cast the net too widely.” 

.
   Similarly, in adopting the phrase “crime of violence” and, in particular, by
incorporating 

(a) into section 101(a)(43)(F) of the Act,
Congress clearly chose to have the terms “element” and “use of physical
force” govern our interpretation of offenses alleged to come under that

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subsection. The Connecticut assault statute under which the respondent was
convicted lacks the critical element of the use of physical force that would be
necessary for his conviction to qualify as a crime of violence under § 16(a).
It would “cast the net too widely” to treat every intentional assault offense
that causes injury as a crime in which the use of force is an element. Matter
of Espinoza, supra, at 894. Like the crime at issue in Espinoza, the crime
defined in the Connecticut statute may bear some resemblance to a listed
aggravated felony offense, but it is simply not a crime of violence as defined
by the statute.
   Nevertheless, the majority proceeds as though the question whether
Congress has directly spoken to the precise question at issue, i.e., what is
meant by Congress’ use of the terms “element” and “use of physical force”
in § 16(a), cannot be determined by reference to the plain language of the
statute. Cf. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., supra, at 842-43. First, the majority appeals to the legislative history as
though that could trump the plain language of the statute. However, as I noted
above, and as all the authoritative judicial decisions indicate, resort to
legislative pronouncements in the face of language that has an ordinary,
commonly understood meaning is only appropriate in narrow circumstances
in which the legislative history contains a “clearly expressed intention”
contrary to the plain meaning of the statutory language. See supra note 2
(citing INS v. 

 at 432 n.12); see also Kurzban’s
Immigration Law Sourcebook, supra, at 820. These circumstances do not
exist here.
   The 1983 Senate Judiciary Committee Report, on which the majority relies,
refers not only to the offense of simple assault, but to battery as well.
S. Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3486-87. Furthermore, in United States v. Chestaro, 

 (2d Cir.
1999), cert. denied, 

 (2000), cited by the majority, the Second
Circuit stated simply that the reference to simple assault in 

(5), “has been held to ‘embrace the common law meaning of that
term.’” 

 (emphasis added) (quoting United States v. Stewart,

 (6th Cir. 1978)). As the Supreme Court ruled in United
States v. 

, it does not follow that because Congress
has historically classified a certain type of offense as a violent crime, every
similarly entitled offense under state law amounts to a violent crime
warranting sentence enhancement. Likewise, although the legislative history
indicates that Congress contemplated that an assault offense would constitute
a crime of violence under 

(a), it is not necessarily the case that




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every offense labeled an “assault” will so qualify, i.e., have as an element
the use of physical force as defined in the statute.3
   Second, the majority attempts to invoke an “inherent element” construct
that is contrary to our established practice in assessing criminal convictions.
To do so the majority must either ignore the common, ordinarily understood
meaning of the term “element” in the context of criminal and immigration law
or read into the language of the Connecticut statute a requirement that the use
of physical force must be proved to sustain a conviction. In fact, neither the
common law definition of simple assault relied on by the Second Circuit in
Chestaro, nor the terms of the Connecticut statute under which the respondent
was convicted necessarily require the use of physical force to sustain a
conviction for the crime in question.
   Connecticut state decisions indicate that an offender need not cause the
injury himself, but may solicit, request, or command it, or aid another to
cause the injury. See State v. Barnett, 

 (Conn. App. Ct. 1999)
(finding that evidence that the defendant pointed out homosexual inmates to
other inmates during a prison riot was sufficient to establish intent to cause
injury). Similarly, reckless operation of a motor vehicle may support a
conviction for second degree assault. See State v. Guitard, 

 (Conn. App. Ct. 2001). And, slipping a drug into the victim’s drink will
support a conviction for second degree assault. See State v. Nunes, 

 (Conn. 2002) (involving a jury instruction charging that “For you
to find the defendant guilty of this charge the state must prove the following
elements beyond a reasonable doubt: That the defendant administered a
drug, substance or preparation capable of producing stupor or
unconsciousness or physical impairment to another person” (emphasis
added)).
   In support of its “inherent element” approach, the majority cites to
out-of-circuit cases such as United States v. Ceron-Sanchez, 

 (9th Cir. 2000), for the proposition that an intentional assault offense is
a crime of violence. But before reaching such a conclusion, the court in

3
   The majority’s citation to United States v. Morales, 

 (2d Cir. 2000),
(considering an exception to the mandatory minimum sentence for a defendant who hit and
struck a victim who precipitated the incident) continues to confuse state labels with elements
of the offense. Although the Second Circuit noted in dicta that “Morales was not convicted
of assault or any other offense that generically involves use of force against another person,”

, it is misleading to suggest that the Second Circuit has found that all assault
convictions under any state law would involve the use of physical force. Indeed, the court
differentiated Morales’ harrassment conviction under New York Penal Code § 240.26, which
requires a showing that “with intent to harass, annoy or alarm another person . . . [the
offender] strikes, shoves, kicks or otherwise subjects such other person to physical contact,
or attempts or threatens to do the same,” from its understanding of the generic definition of
offenses involving the use of physical force.

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Ceron-Sanchez imposed the requirement that the “‘“full range of conduct
encompassed by [the statute the defendant violated]”’” must constitute the
aggravated felony in question. United States v. 

 at
1172 (quoting United States v. Estrada-Torres, 

 (9th Cir.
1999) (quoting United States v. Lomas, 

 (9th Cir. 1994)).
Such a conclusion cannot be reached here. The full range of conduct covered
by the Connecticut statute does not constitute an aggravated felony, as the
respondent’s conviction can be obtained without proof that he used force.
Thus, the majority not only places unwarranted reliance on out-of-circuit
authority, but loses sight of the rule that each conviction must be construed
according to its particular elements.
   As dissenting Board Member Pauley points out, the statute under which the
respondent was convicted covers intentional assault offenses that result from
omissions as well as commissions. In United States v. Gracia-Cantu, 

 (5th Cir. 2002), the Fifth Circuit recently addressed these
types of circumstances, finding that a prior offense criminalizing injury to a
child would not constitute a crime of violence under 

(a)
because the statute does not require that the perpetrator actually use, attempt
to use, or threaten to use physical force against a child. The court reasoned
that as “the offense of injury to a child is results-oriented, many convictions
for this offense involve an omission rather than an intentional use of force.”

 (citing United States v. Chapa-Garza, 

 (5th Cir. 2001),
as exemplifying that “a parent who leaves a young child unattended near a
pool may risk serious injury to the child, but the action does not involve an
intent to use force or otherwise harm the child.”)
   In addition, in numerous decisions, several circuit courts have concluded
that the use of force was not an element of various assault or assault-related
offenses alleged to constitute crimes of violence. For example, in Sutherland
v. Reno, 

 (2d Cir. 2000), the Second Circuit acknowledged
that “[t]he BIA determined that petitioner committed a ‘crime of violence’
within the meaning of § 16(b), but not under § 16(a) . . . [and] the parties do
not dispute that petitioner’s conviction fails to meet the § 16(a) definition.”
Similarly, addressing the crime of statutory rape, the Seventh Circuit ruled
that “[b]y the terms of the statute, no physical force, or even the slightest
threat of physical force, is necessary for a conviction; there is no ‘element’
of force, threatened or otherwise, in the crime.” United States v. Shannon,

 (7th Cir. 1996), vacated in part en banc, 

 (7th Cir. 1997) (“The use of force is not an element of second-degree
sexual assault, so no finding on the question was necessary for conviction.”).
Finally, in United States v. Martin, 

 (4th Cir. 2000), the
court ruled that bank larceny was not a crime of violence because it “lacks
as a statutory element not only the use of force, violence, or intimidation, but
also the taking from the person or presence of another.”

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   In addition, in a Connecticut case involving intimidation based on bigotry,
the Second Circuit concluded that that while the statute “clearly covers” some
qualifying conduct, “it also covers conduct that falls outside that definition,
because it addresses harassment as well as intimidation, and damage to ‘real
or personal property’ as well as ‘physical contact.’” United States v. Palmer,

 (2d Cir. 1995). As the Sixth Circuit also has found, “[I]t is
not enough that force is a conceivable means of accomplishing the offense.
An assault could also be accomplished . . . by fraud, which would not involve
an element of force or attempted or threatened force.” United States
v. Arnold, 

 (6th Cir. 1995) (concluding that “using a
categorical approach, . . . assault with intent to commit sexual battery under
Tennessee law is [not] a crime involving the use of force . . . for purposes of
U.S.S.G. § 4B1.2(1)(i)”). By contrast, when a statute requires a forcible act
as an element of the offense, its characterization as a crime of violence is
clear. See, e.g., United States v. Brown, 

 (2d Cir. 1995)
(examining section 160.00 of the New York Penal Law, which defines
robbery as “forcible stealing” in which a person “uses or threatens the
immediate use of physical force upon another person”).
   These circuit court decisions addressing 

 or its exact
counterparts raise serious questions concerning the result reached by the
majority. See Matter of Yanez, 

 (BIA 2002) (holding
that the Board will defer to the majority of the circuit courts of appeals that
have determined whether a controlled substance offense constitutes an
aggravated felony under section 101(a)(43)(B) of the Act). The majority’s
analysis also rides roughshod over our decision in Matter of Sweetser, supra,
in which the respondent was convicted of criminal negligence under a
divisible statute in which an offender would be guilty of child abuse “if he
causes an injury to a child’s life or health or permits a child to be
unreasonably placed in a situation which poses a threat of injury to the
child’s life or health.” 

(1) (1990) (emphasis
added); see also Matter of Sweetser, supra, at 713.
   According to the record of conviction in Sweetser, the respondent
permitted “his stepson ‘to be unreasonably placed in a situation which posed
a threat of injury to the child’s life or health’” and “resulted in the accidental
drowning death of his stepson.” Matter of Sweetser, supra, at 715. Yet, we
did not find that such a conviction constituted an aggravated felony offense
under either 

(a) or § 16(b). I cannot find that a conviction for
assault under the Connecticut statute, without more, is materially different.
   The majority decision cannot be reconciled with our precedent and is not
supported by any controlling circuit precedent. Plainly, § 16(a) does not refer
to an “inherent element” that is not articulated in the statute. The majority
either confuses § 16(a) and § 16(b) or seeks to construe § 16(a) in a way that
expands it beyond its terms. Simply stated, § 16(a) does not refer to conduct

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that does not actually involve force as an element, but somehow inherently
involves force, or sometimes might involve force, or occasionally involves
force. 

. The use of force is not an essential element of the
offense under Connecticut law and, therefore, a misdemeanor conviction
under the state statute in question is not a conviction for an aggravated
felony.

                                   IV. CONCLUSION
   The language of the Connecticut statute compels the finding that the use,
attempted use, or threatened use of physical force is not an “element” of any
subsections of the statute. Thus, although the use or attempted use of
physical force might be involved in a particular assault punishable under
Connecticut law, it is not a necessary element of any one of the subsections
defining the offense. Accordingly, I conclude that an offense under the
Connecticut statute punishing misdemeanor assault does not fall within the

(a) definition of a “crime of violence.”
DISSENTING OPINION: Roger A. Pauley, Board Member, in which
Paul Wickham Schmidt, Lauri Steven Filppu, and Noel Ann Brennan,
Board Members, join
   I respectfully dissent.
   The majority dismiss the respondent’s appeal from a decision of an
Immigration Judge finding him removable for having been convicted of an
aggravated felony on the basis of his misdemeanor conviction under section
53a-61(a) of the Connecticut General Statutes, for which he received a 1-year
sentence of imprisonment. I disagree and conclude that this offense is not an
aggravated felony under 

(a) (2000), the first prong of the
“crime of violence” definition as incorporated into section 101(a)(43)(F) of
the Immigration and Nationality Act, 

(a)(43)(F) (2000). 1 The
majority misapprehend the elements of the respondent’s offense and fail
correctly to apply controlling case law of the United States Court of Appeals
for the Second Circuit, within whose jurisdiction this case arises.
                 I. RELEVANT STATUTORY PROVISIONS
     The Connecticut statute at issue provided as follows at the time of the
respondent’s offense:
        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
1
  It is common ground that the respondent’s offense does not qualify under the second prong
of the “crime of violence” definition, 

(b), because it is not a felony.

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    (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.

Conn. Gen. Stat. § 53a-61(a) (2000).
   According to 

(a), the term “crime of violence” means “an
offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.”
                                     II. ANALYSIS
              A. The Statute Has No Element of Physical Force
   Because the plea colloquy shows that the respondent’s conviction related
to an act of domestic violence involving his intentional use of actual and
threatened force against his ex-girlfriend that resulted in physical injury to her,
the majority focus on the first branch of the above statute. See Conn. Gen.
Stat. § 53a-61(a)(1). But neither that branch of the Connecticut statute nor
any other branch contains on its face an element 2 that the resultant “injury” to
the victim have been caused by the “use, attempted use, or threatened use of
physical force” as required by 

(a). 3 Nor has the statute been
construed by the Connecticut courts to contain such an element. See State
v. Tanzella, 

 (Conn. 1993); State v. Panella, 

 (Conn. App. Ct. 1996). 4 As it is evident that physical injury can
be intentionally caused in many ways without the use of “physical force,” or
even without the use of any force,5 it follows that the respondent’s offense is
not a “crime of violence” as defined in 

(a).
   The majority rely on the fact that, under the Connecticut statute, all of the
reported prosecutions have involved the use of violent force. This is not
surprising. But it likewise is irrelevant. Nor is it relevant that the
2
  An “element” of a crime is a “fact necessary to constitute the crime” as defined by law. See
Mullaney v. Wilbur, 

 (1975). Such elements must be proved to the
finder of fact beyond a reasonable doubt. See Apprendi v. New Jersey, 

(2000).
3
   While the third branch, not at issue, might arguably involve “physical force,” it does not
involve the “use” of such force because the required state of mind is only negligence. See
Dalton v. Ashcroft, 

 (2d Cir. 2001).
4
   Likewise, cases under the similarly worded Connecticut second degree assault statute, a
felony (the first paragraph of which differs from the statute at issue here in paragraph (1) only
in requiring that the intended and resultant injury be “serious”), do not require proof of
“physical force” even though most or all have been committed by this means. See, e.g., State
v. Guitard, 

 (Conn. App. Ct. 2001).
5
   For example, a person may intentionally cause physical harm by failing to perform a duty
to warn an individual of imminent danger, or as a caregiver by failing to provide needed
medicine.

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respondent’s crime was also of this character. The statute itself does not
require that this aspect—the use of violent “physical force”—be proved
beyond a reasonable doubt for conviction. Therefore, it is not an “element”
of the Connecticut offense.
    B. The Second Circuit in Dalton v. Ashcroft Construes “physical
     force” in 

 and Its Relation to Resultant Injury in
     Such a Manner as To Compel the Conclusion That That Court
          Would Not Find That Such Force Is an Element Here
   This commonsense conclusion, predicated on a reading of the Connecticut
statute as construed by the courts of that State, is reinforced by the
controlling decision of the United States Court of Appeals for the Second
Circuit in Dalton v. Ashcroft, 

 (2d Cir. 2001), with regard to the
construction of the “crime of violence” definition itself. Dalton involved the
second prong of that definition, which defines a “crime of violence” as “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.” 

(b). Significantly, this
branch of the definition also contains the term “physical force.”
   In part IV of its opinion, the Dalton court pointed out the “logical fallacy
inherent in reasoning” that simply because conduct results in injury, that
injury must be the result of the use of physical force. Dalton v. 

. The court gave as illustrations of recklessly or intentionally
inflicted nonforcible injury (or substantial risk of injury) “leaving an infant
alone near a pool” and statutes “criminalizing the use, possession and/or
distribution of dangerous drugs.” 

 The court also emphasized that the
term “physical force” in 

(b) connoted a violent or destructive
type of force and found, in part III of its opinion, that the offense at issue
there, driving while intoxicated, did not meet the “crime of violence”
definition because “[t]he physical force used cannot reasonably be interpreted
as a foot on the accelerator or a hand on the steering wheel.” Id. at 206; see
also Rummel v. Estelle, 

, 282 n.27 (1980) (“Caesar’s death at
the hands of Brutus and his fellow conspirators was undoubtedly violent; the
death of Hamlet’s father at the hands of his brother, Claudius, by poison, was
not.”). All other circuits to have considered the issue have likewise
concluded that “physical force” in 

 means violent or
destructive force. E.g., United States v. Landeros-Gonzales, 

 (5th Cir. 2001); Bazan-Reyes v. INS, 

 (7th Cir. 2001);
United States v. Ceron-Sanchez, 

 (9th Cir. 2000). 6 The
6
  This view is buttressed by examining the “aggravated felony” definition in section 101(a)(43)
of the Act as a whole. In its first branch (A), that definition enumerates as aggravated felonies
                                                                                 (continued...)

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majority’s reliance on United States v. Nason, 

 (1st Cir. 2001),
and United States v. Smith, 

 (8th Cir. 1999), is misplaced,
as those cases interpret “physical force” in the later-enacted statutes,

(g)(9) and 

(a)(33) (defining the term
“misdemeanor crime of domestic violence”), in light of their discrete
legislative history. See United States v. 

.
   While Dalton and the above-cited “crime of violence” cases under

 mostly involve the second prong of the definition of that term,
there is no reason to believe that Congress intended the identical phrase
“physical force” in that statute to carry a different meaning in the two
branches; indeed such a construction (for which there is no case law support
so far I am are aware) would be quite remarkable.7 Therefore, as many
means exist (as previously noted and as the Second Circuit has confirmed) of
intentionally inflicting physical injury without the use of “physical force” as
mandated by the “crime of violence” definition, the Connecticut statute at
issue in this case, as construed in light of the teaching of Dalton v. Ashcroft,
supra, for cases like this one arising in the Second Circuit, fails to contain “as
an element” that the offense involves the “use, attempted use, or threatened
use of physical force.”8 Nothing in the legislative history cited by the
6
    (...continued)
“murder” and “rape.” If all murders and rapes were crimes of violence, there would have
been no need for this enumeration. Congress is not presumed to legislate in a purely redundant
fashion. See, e.g., Freytag v. Commissioner, 

 (1991) (“Our cases
consistently have expressed ‘a deep reluctance to interpret a statutory provision so as to render
superfluous other provisions in the same enactment.’” (quoting Pennsylvania Dep’t of Public
Welfare v. Davenport, 

 (1990))); United States v. Menasche, 

 (1955). It appears, therefore, that Congress meant to insure that all murders and rapes
were covered, even if they were committed in a nonviolent manner, e.g., by poison (in the
case of murder, see Rummel v. 

 or by rendering the victim unconscious through
the administration of an intoxicant or drug (in the case of rape, see 

(b)(2),
2242(2)).
7
   This is not a case where “the subject-matter to which the words refer is not the same in the
several places where they are used, or the conditions are different, or the scope of the
legislative power exercised in one case is broader than that exercised in another.” Atlantic
Cleaners & Dyers, Inc. v. United States, 

 (1932). Instead, we are
concerned here solely with the meaning of “physical force” in two parts of the same section
of Title 18 as incorporated into Title 8 for immigration law purposes.
8
   In United States v. 

 the Ninth Circuit found that an aggravated
violation of Arizona’s general assault statute, which is worded similarly to the Connecticut
statute at issue here, was a crime of violence under 

(a). But in that case, the
aggravated charge required that the defendant be proved to have used “a deadly weapon or
dangerous instrument.” No such element was present with respect to the respondent’s
offense. We need not speculate as to whether the Ninth Circuit in that case may have fallen
prey to the “logical fallacy” identified in Dalton v. Ashcroft, supra, at 207, of equating
                                                                                 (continued...)

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 (BIA 2002)                                     Interim Decision #3481



majority (S. Rep. No. 98-225, at 307 (1983)) is to the contrary. That history
was with respect to the federal assault statute, 

, which
contains no definition of the offense and which the courts have interpreted to
embody the very different common law definition of “assault.” E.g., United
States v. Bayes, 

 (1st Cir. 2000); United States v. Dupree,

 (9th Cir. 1976). This case, by contrast, involves a
Connecticut statute that defines the offense in a manner that does not contain
as an element the use, attempted use, or threatened use of violent physical
force in order to inflict injury.
                                   III. CONCLUSION
  For the reasons stated, I conclude that, within the jurisdiction of the Second
Circuit, whose decisions are binding in this case, a violation of section
53a-61(a) of the Connecticut General Statutes is not a “crime of violence”
under 

(a). 9 Despite the fact there are indications, as the
majority point out, that some other circuits might reach a different result, see
supra note 8, I therefore would sustain the appeal.




8
    (...continued)
resultant physical injury with the use of “physical force” in 

. United States
v. 

 (“[T]he reckless conduct must have caused actual physical
injury to another person. Therefore, the use of physical force is a required element of [the
Arizona statute.]”); see also United States v. 

 (stating that “to cause
physical injury, force necessarily must be physical in nature”). Without opining on the
correctness of Ceron-Sanchez, it suffices to note the distinction in elements between that case
and this one, and to point out that we are governed in this case by the precedents of the
Second Circuit.
9
   Had Connecticut graded its offense as a felony, I would have little hesitation finding that it
qualified as a crime of violence under 

(b) because of the substantial risk that
violent force may be used in the offense. See generally Sutherland v. Reno, 

 (2d
Cir. 2000).

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