Offense
Vehicular Manslaughter while Intoxicated
Aggravated Felony (AF)
Not an AF even with a year, because gross negligence is not a COV.
Crime Involving Moral Turpitude (CIMT)
Arguably 191.5(a) is not a CIMT, but ICE might charge it as one and the law is unsettled. If it is critical to avoid a CIMT, try hard for 191.5(b) or another offense.
PC 191.5(b) should not be held a CIMT as it does not require gross negligence.
Other Removal Grounds
Not deportable.
Advice and Comments
PC 191.5(a), (b)
COV. An offense must be committed intentionally or with “depraved heart or extreme recklessness” to be a COV. See discussion of U.S. v. Draper at PC 192(a), below. Because 191.5 is committed with gross negligence, it is not a COV and thus is not an AF even with a year.
CIMT. While there is no case on point, removal defense advocates may have a strong argument that PC 191.5(a) is not a CIMT.1Pen C § 191.5(a) as a CIMT. While there is no case on point, removal defense advocates can argue that PC § 191.5(a) is not a CIMT. The BIA has held that the definition of CIMT includes an offense with an element of recklessness when the risk is serious, such as imminent risk of death or injury. Recklessness is defined as a conscious disregard of a known risk, i.e., the person must subjectively know the risk and ignore it. But in a case involving an Arizona reckless endangerment statute, the BIA adopted Arizona’s expanded definition of recklessness that includes “a person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication…” Thus, it found that A.R.S. 13-1201(A), “recklessly endangering another person with a substantial risk of imminent death,” which included that expanded definition of recklessness, was a CIMT. Matter of Leal, 26 I&N Dec. 20 (BIA 2012).
Could Pen C § 191.5(a) be construed to come within that definition? It prohibits killing a human with a vehicle where the driver was in violation of Veh C § 23140, 23152, or 23153 “and” the killing was the result of certain acts taken with “gross negligence.” ICE might assert that case law on 191.5(a) requires the voluntary intoxication to cause the gross negligence (or to reduce what would have been recklessness to gross negligence, by blocking consciousness of the risk). Or ICE might assert that while the causality was set out in Arizona law, that is not required. Experts can consider criminal cases on § 191.5(a) to contest such assertions and can argue that the definition requires proof that voluntary intoxication caused the inability to be conscious of the risk. As always, while making an untried argument advocates also should investigate the possibility of post-conviction relief. But defenders still should avoid it when possible if a CIMT will be fatal to client, because ICE might choose to litigate the issue.