Offense
Voluntary manslaughter
Aggravated Felony (AF)
AF as a COV if a year or more is imposed.
To avoid an AF, obtain 364 days or less, or plead to 192(b) or other alternative.
Crime Involving Moral Turpitude (CIMT)
Yes CIMT, 1Ortiz v. Garland, 25 F.4th 1223 (9th Cir. 2022) (PC 192(a) is a CIMT).as is attempt.
To avoid CIMT see PC 192(b).
Other Removal Grounds
DV deportation ground.
As a COV (see Advice), PC 192(a) is a deportable “crime of DV” if the victim has a protected DV relationship, regardless of sentence. To avoid this outcome, plead to a non-COV such as 192(b).
To ensure not wrongly charged as a deportable “crime of child abuse,” keep minor V’s age out of ROC. See 243(a).
Advice and Comments
PC 192(a)
COV: Defenders must assume that PC 192(a) is an AF as a COV if a sentence of a year or more is imposed. In US v. Draper (2023), the Ninth Circuit held that federal voluntary manslaughter is a COV because the minimum conduct requires a mens rea of extreme recklessness or depraved heart. (It distinguished that mens rea from other degrees of recklessness such as a conscious disregard of a known risk, from the COV definition.)
After finding that federal voluntary manslaughter is a COV, the panel in Draper stated in dicta that because PC 192(a) has the same mens rea, it too is a COV. It stated that older Ninth Circuit precedent holding that 192(a) is not a COV is inconsistent with the subsequent en banc Ninth Circuit decision in Begay (2022), which interpreted the Supreme Court decision in Borden (2021). In Borden the Supreme Court affirmed that recklessness generally is not a COV, but left open whether a mens rea of extreme recklessness or depraved heart is a COV. Begay held that it is a COV. See citations and further discussion in endnote. 2This endnote briefly summarizes the cases that led to the Ninth Circuit’s statement in dicta that, despite prior precedent to the contrary, PC § 192(a) is a COV. See United States v. Draper, 84 F.4th 797, 805, N.3 (9th Cir. 2023).
In 2021 the Supreme Court affirmed what most courts of appeals had long held, which was that an offense with a mens rea of recklessness is not a COV. Borden v. United States, 593 U.S. 420 (2021). The Court stated that reckless conduct occurs when a person “‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Borden at 427. In a footnote, the court stated that it did not decide whether a different mens rea, depraved heart or extreme recklessness, is a COV. Borden at n.4. (For further discussion of Borden see NILA, NIPNLG, IDP, Practice Advisory: Overview of Borden v. United States for Immigration Counsel (June 2021), https://nipnlg.org/work/resources).
In United States. v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), the Ninth Circuit addressed the issue Borden had left open. It held that federal second degree murder, which has a mens rea of depraved heart and extreme recklessness and disregard for human life, is a COV. The en banc panel held that while its ruling conflicted with prior precedent stating that a COV requires intentional conduct, “the reasoning of Borden sufficiently undermines our prior authority” and the “distinction between degrees of recklessness is critical to our conclusion.” Begay at p. 1094. Degrees of recklessness refers to depraved heart/extreme recklessness, which is a COV, versus conscious disregard or a substantial and unjustifiable risk, which is not.
In United States v. Draper, 84 F.4th 797 (9th Cir. 2023), the panel relied on Begay to hold that federal voluntary manslaughter is categorically a COV, because the minimum conduct includes a mens rea of depraved heart or extreme recklessness. In dicta, the court stated that because California voluntary manslaughter, PC § 192(a) requires the same mens rea, it also is a COV. Draper at p. 805, n.3.
For this reason, criminal defenders must assume that PC § 192(a) will be held a COV. Removal defense advocates representing someone with this conviction must investigate any defense arguments, as well as the possibility of vacating the conviction with PCR. See next endnote.
Removal defense advocates can investigate possible defenses against applying this ruling to 192(a), especially if the 192(a) conviction occurred at least before the date of Draper’s publication, Oct. 17, 2023. At the same time they must investigate the possibility of PCR to vacate the conviction. See discussion at endnote.
Attempt to commit voluntary manslaughter, CA PC 664/192(a), is a COV. 3Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018).