Aggravated Felonies

(B)  Gross Negligence.  Leocal held that negligence was an insufficient mens rea to qualify as an aggravated felony crime of violence for removal purposes, because there was insufficient intent to use force.  The same logically holds true for gross negligence, since it still constitutes negligence: the absence of any actual intent to use force.  The defendant is still stumbling, and the use of force is still actually accidental.

            In Lara-Cazarez v. Gonzalez,[152] the Ninth Circuit withdrew from a number of prior decisions, and found that an offense committed with gross negligence could not be considered a crime of violence in light of Leocal.  Citing the same language relied upon by the Third Circuit, the court found that “[g]ross negligence is still negligence, however flagrant, and does not constitute the kind of active employment of force against another that Leocal requires for a crime of violence.”[153]

[152] Lara-Cazarez v. Gonzalez, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16, and so does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v. INS, 252 F.3d 1018 (9th Cir. 2001), and cases therein cited as no longer good law in light of Leocal v Ashcroft, 125 S.Ct. 377 (2004).

[153] Id. at 1221 (emphasis in original).