Aggravated Felony (AF)
Possible change in the law could make this an AF as COV if 1 year or more is imposed; see Advice.
Crime Involving Moral Turpitude (CIMT)
Assume this is CIMT.
To avoid CIMT see PC 192(b).
Other Removal Grounds
Because it is not a COV, it is not a deportable crime of DV.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Advice and Comments
COV: Courts have long held that a crime of violence requires more than reckless intent. Therefore, 192(a) has been held not an AF as a COV, even with a sentence of a year or more. But the Supreme Court will take up the issue in 2020, in Borden v. United States.1Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015) held that Pen C § 192(a) is not a COV because it can be committed by recklessness. The court reaffirmed US v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008) and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc), finding that in order to constitute a crime of violence under 18 USC § 16, “the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission” Quijada at 306, citing Gomez-Leon at 787 (emphasis in original). (Note that the latter point, that a COV may exist if there is a substantial risk that force will be intentionally used during commission of the offense, is no longer applicable because it interpreted the definition of a COV at 18 USC § 16(b). The Supreme Court struck down that section in 2018 in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See Pen C § 207.)
But in Borden v. United States (19-5410), the Supreme Court will decide whether the definition of a COV in the ACCA, which is basically identical to the immigration definition at 18 USC § 16(a), includes reckless conduct. Oral argument will take place in November 2020. Therefore defenders must conservatively assume that recklessness can amount to a COV, and that § 192(a) may become an aggravated felony as a COV if a year or more is imposed, and may be a deportable crime of DV if the victim and defendant had a protected relationship. (Borden takes up the issue presented in Walker v. United States (19-373), which was withdrawn when Mr. Walker died.) Therefore, for now defenders should conservatively treat 192(a) as a COV.
Better option is 192(b), (c). The Court is not considering whether gross negligence could amount to a COV.