PC 192(b), (c)(1), (2)

Offense

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.¹

The BIA has long held that reckless conduct is a CIMT only under certain circumstances. See Matter of Tavdidishvili, 27 I&N Dec. 142, 143–44 (BIA 2017):

We have held that moral turpitude inheres in crimes involving serious misconduct committed with at least a culpable mental state of recklessness– that is, “a conscious disregard of a substantial and unjustifiable risk.” Matter of Franklin, 20 I&N Dec. 867, 870 (BIA 1994) (emphasis added) (holding that recklessly causing the death of another person was a crime involving moral turpitude), aff’d Franklin v. INS, 72 F.3d 571 (8th Cir. 1995). In Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977), we concluded that a person acting with this mental state could be convicted of a crime involving moral turpitude because “recklessness requires an actual awareness of the risk created by the criminal violator’s action”–in other words, a “violator must show a willingness to commit the act in disregard of the perceived risk.”

In contrast, the BIA repeatedly has held that “crimes committed with “criminal negligence” are generally not morally turpitudinous, because neither ‘intent’ nor a “conscious disregard of a substantial and unjustifiable risk” is required for conviction–that is, no sufficiently culpable mental state is necessary to commit such an offense.” Matter of Tavididishvili, 27 I&N at 144 (eventually holding that NY involuntary manslaughter is not a CIMT), citing Matter of Perez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992) (Washington involuntary manslaughter is not a CIMT).

In Matter of Tavididishvili, supra, 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.” Immigration advocates should point out that California’s definition of gross negligence is the same as in New York and Washington. In People v Penny, 44 Cal.2d 861(1955), the California Supreme Court in analyzing Pen C § 192(b) 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, should not be held 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

PC 192(b), (c)(1), (2)

These offenses are not COVs because the minimum conduct required for guilt amounts to gross negligence, which is not a COV.

Gross negligence does not arise to the definition of recklessness as a conscious disregard of a substantial known risk.²Further, even that definition is not enough for a COV. A COV requires intentional conduct or, according to the Ninth Circuit, a specific higher degree of recklessness (depraved heart or extreme recklessness). See discussion at 192(a), which the Ninth Circuit stated is a COV because it requires that intent.