Involuntary or vehicular manslaughter
Aggravated Felony (AF)
Not a COV.
See 192(a) and see Advice
Crime Involving Moral Turpitude (CIMT)
Should not be CIMT; best practice is plea to negligence, not conscious disregard.1CIMT: While there is no case on point, Pen C § 192(b) should not be held a CIMT. In Matter of Tavididishvili, 27 I&N Dec. 3906 (BIA 2017), the BIA held that New York’s offense of criminally negligent homicide is not a CIMT because it can be committed with criminal negligence, and not with the requisite “recklessness” that is the “hallmark” of a CIMT. The BIA noted that New York’s criminal negligence standard was indistinguishable from Washington’s criminal negligence standard that the BIA had previously held not to be a CIMT, because it occurs when a person merely “fails to be aware” of a substantial and unjustifiable risk, rather than with “a conscious disregard of a substantial and unjustifiable risk.” In People v Penny (1955) 44 Cal.2d 861, the California Supreme Court in analyzing Pen C § 192 noted that the phrase “without due caution or circumspection” is the equivalent of criminal negligence, and that various cases have found that this standard is more than ordinary civil negligence but does not rise to “wanton or reckless” disregard for human life. Therefore, the California offense, like the New York and Washington offenses, is not a CIMT.
Other Removal Grounds
Because it is not a COV, it is not a 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
These offenses are not COVs because they have a minimum conduct amounting to negligence.2 Involuntary or vehicular manslaughter, Pen C § 192(b), (c)(1), (2), is not a COV because it has a mens rea of negligence: either “without due caution or circumspection” or “criminal negligence.” See discussion in above endnote. The Ninth Circuit held that even voluntary manslaughter committed by recklessness (conscious disregard of a known risk), Pen C § 192(a), is not a COV. Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015). If at some point courts interpret the definition of a crime of violence at 18 USC § 16(a) to include recklessness (see discussion at Pen C § 207), that should not include § 192(b), (c). Even if the Supreme Court were to decide to include recklessness in the definition of COV (see discussion of Borden case in Advice to 192(a)), that should not include gross negligence. Best practice is a specific plea to negligence.