An offense that may be committed by mere negligence,[411] or as a strict liability offense, is a safe haven in that it cannot constitute a crime of violence.[412]  The use of force necessary to constitute a crime of violence must be intentional,[413] and thus an offense with a mental element of mere recklessness or gross negligence is arguably also insufficient to constitute a crime of violence.[414]  The Supreme Court, however, has not yet ruled on whether recklessness is a sufficient mens rea to constitute a crime of violence.[415]

 

[411] United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

[412] United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).

[413] United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (Texas conviction of intoxication assault — “by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another” — in violation of Tex. Penal Code Ann. § 49.07 (1994), did not constitute a crime of violence, and so was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the defendant must intentionally avail himself of the use, attempted use, or threatened use of physical force against the person of another, and that this must be an element of the predicate offense).

[414] United States v. Dominguez-Hernandez, 98 Fed.Appx. 331 (5th Cir. May 21, 2004) (Not selected for publication in the Federal Reporter) (Texas conviction of involuntary manslaughter, in violation of Texas Penal Code § 19.04(a)(1) (Vernon 2003) (“recklessly causes the death of an individual”), with six-year prison sentence, does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level enhancement of illegal re-entry sentence under USSG § 2L1.2(b)(1)(A)(ii) (Nov. 1, 2000), since the statute of conviction does not require that government establish use of intentional physical force to obtain conviction).

[415] The court expressly failed to address whether a state or federal offense that required proof of the reckless use of force against the person or property of another qualified as a crime of violence. Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 384 (November 9, 2004).

AGGRAVATED FELONY - CRIME OF VIOLENCE -- INTENT REQUIREMENT
Leocal v. Ashcroft, ___ U.S. ___, 160 L. Ed. 2d 271, 125 S. Ct. 377 (2004) (state statute of conviction must require at least the same level of scienter as the relevant federal statute in order for the state conviction to constitute an aggravated felony).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A FIREARM
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).

Third Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - MENS REA OF SPECIFIC INTENT REQUIRED
Singh v. Gonzales, ___ F.3d ___, 2005 WL 3579002 (3d Cir. Jan. 3, 2006) ("To qualify as a "crime of violence" within 18 U.S.C. 16(a), a criminal statute must require a mens rea of specific intent to use force; mere recklessness is insufficient. Tran, 414 F.3d at 470 (citing United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992))).

CRIME OF VIOLENCE - RECKLESS ENDANGERMENT
Singh v. Gonzales, 432 F.3d 533, 540-541 (3d Cir. Jan. 3, 2006) (Pennsylvania misdemeanor conviction of recklessly endangering another person, in violation of 18 Pa. Cons.Stat. Ann. 2705, with a sentence of one year or more, did not constitute a crime of violence under 18 U.S.C. 16(a), and was not a felony conviction, and therefore did not constitute a crime of violence under 18 U.S.C. 16(a), and therefore was not an aggravated felony aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it requires a mens rea of no more than recklessness.)

AGGRAVATED FELONY - VEHICULAR HOMICIDE
Oyebanji v. Gonzales, 418 F.3d 260 (3rd Cir. Aug. 11, 2005) (vehicular homicide under New Jersey Statutes 2C:11-5, is not a crime of violence as defined by 18 U.S.C. 16, since the statue requires only a reckless intent)
http://caselaw.lp.findlaw.com/data2/circs/3rd/034143p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS MENS REA INSUFFICIENT
Popal v. Gonzalez, __ F.3d __, 2005 WL 1791998 (3d Cir. July 29, 2005) (simple assault (reckless), in violation of Pennsylvania Penal Code 18 Pa.C.S.A. 2701, is not an aggravated felony crime of violence for immigration purposes, since a mens rea of recklessness is insufficient to qualify as a crime of violence). Following Tran v. Gonzales, __ F.3d __, 2005 WL 1620320 (3d Cir. July 12, 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
Tran v. Gonzales, ___ F.3d ___, 2005 WL 1620320 (3d Cir. July 12, 2005) (Pennsylvania conviction of "reckless burning or exploding," in violation of 18 Pa.C.S.A. 3301(d)(2), did not constitute a crime of violence under 18 U.S.C. 16(b), and was therefore not an aggravated felony crime of violence under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of removal, since the crime required only a reckless mens rea, and involved no risk that the defendant would intentionally use force in the commission of the crime).

Fourth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS ENDANGERMENT
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec. 9, 2008) (Maryland misdemeanor conviction of reckless endangerment, in violation of Md. Code Ann. art. 27, 120 (1995) ("recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another" with a five-year maximum), does not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because recklessness is an insufficient mental state where "a crime of violence requires a substantial likelihood that the perpetrator will intentionally employ physical force. See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir.2001); United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9th Cir.2002).").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - 18 USC 16(a)
Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute an aggravated felony "crime of violence" under 18 U.S.C. 16(a), since its definition does not contain an element that there be the intentional employment of physical force against a person or thing).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
Bejarano-Urrutia v. Gonzales, ___ F.3d ___ (4th Cir. July 5, 2005) (Virginia conviction for simple involuntary manslaughter, in violation of Va. Code Ann. 18.2-36 (2004), which requires the killing of a person as a proximate result of the defendant's reckless disregard for human life, did not constitute a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), 18 U.S.C. 16, because the conclusion of the Leocal Court that "[i]n no 'ordinary or natural' sense can it be said that a person risks having to 'use' physical force against another person in the course of operating a vehicle while intoxicated and causing injury," id. at 383, strongly indicates that the result in Leocal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Garcia-Perez, ___ F.3d ___, 2015 WL 753759 (5th Cir. Feb. 23, 2015) (Florida conviction of manslaughter, in violation of Florida Statute 782.07, did not qualify as a crime of violence under United States Sentencing Guideline 2L1.2(b)(1)(A), because Florida manslaughter conviction does not require proof of force, and my be committed with negligent intent).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (Tennessee conviction of aggravated assault, in violation of Tenn.Code Ann. 39"13"102 (1991), was not a violent felony under the ACCAs use of physical force clause, or under its residual clause, for purposes of the Armed Career Criminal Act, where the offense could be committed recklessly).

Seventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " INTENT
Brown v. Rios, 696 F.3d 638, *641 (No. 11-1695) (7th Cir. Aug. 20, 2012) (Supreme Court's decision in Sykes cannot be read to mean that any intentional crime is a violent felony); citing Sykes v. United States, 131 S. Ct. 2267, 2276 (2011); see Chambers v. United States, 555 U.S. 122 (2009) (failing to report to prison when ordered, though it is an intentional felony, is not a violent one, because the risk of violence in efforts to apprehend such no-shows has not been shown to be significant).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGE OF FIREARM
Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction for criminal recklessness, in violation of Indiana Code 35-42-2-2(c)(3) [shooting a firearm into an inhabited dwelling], is not an aggravated felony crime of violence since recklessness is insufficient to find conviction of a crime of violence).

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Roblero-Ramirez, ___ F.3d ___, 2013 WL 2927916 (8th Cir. Jun. 17, 2013) (Nebraska conviction for violation of Neb.Rev.St. 28-305, sudden quarrel manslaughter, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes where the statute does not require intent to kill).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

AGGRAVATED FELONY - CRIME OF VIOLENCE - TERRORISTIC THREATS
Olmsted v. Holder, 588 F.3d 556 (8th Cir. Dec. 4, 2009) (Minnesota conviction of making terroristic threats, in violation of Minn. Stat. 609.713(1) is a divisible statute, since it may be committed recklessly).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - SUBSTANTIAL RISK OF CAUSING PHYSICAL INJURY INSUFFICIENT
United States v. Torres-Villalobos, 487 F.3d 607, ___ n.4, (8th Cir. May 9, 2007) ("substantial risk" test for crime of violence, under 18 U.S.C. 16(b), is not met by substantial risk of causing physical injury; it requires ignoring "the [substantial] risk that the use of physical force against another might be required in committing a crime."), quoting Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (emphasis added); see also United States v. Hudson, 414 F.3d 931, 935 (8th Cir.2005), cert. denied, 126 S.Ct. 1769 (2006); compare United States v. McCall, 439 F.3d 967, 973 (8th Cir.2006) (en banc) (Minnesota conviction of felony drunk driving can constitute a "violent felony" 18 U .S.C. 924(e)(2)(B)(ii), which requires only that the offense involve "conduct that presents a serious potential risk of physical injury to another").

AGGRAVATED FELONY - MANSLAUGHTER - CRIME OF VIOLENCE
United States v. Torres-Villalobos, __ F.3d __, 2007 WL 528195 (8th Cir. Feb. 22, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn. Stat. 609.205, was not a "crime of violence" under 18 U.S.C. 16 because the offense can be committed with mere reckless intent). http://caselaw.lp.findlaw.com/data2/circs/8th/061876p.pdf

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " VOLUNTARY MANSLAUGHTER
Quijada-Aguilar v. Lynch, ___ F.3d ___, 2015 WL 5103038 (9th Cir. Sept. 1, 2015) (California conviction for voluntary manslaughter, under Penal Code 192(a), did not qualify as a particularly serious crime that would render noncitizen ineligible for withholding of removal, since it did not constitute an aggravated felony crime of violence, because it encompassed reckless conduct).

AGGRAVATED FELONY " CRIME OF VIOLENCE " FIRST DEGREE ASSAULT
United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. Jul. 3, 2012) (New York conviction of assault in the first degree, under New York Penal Law 120.10, was not categorically a crime of violence, for illegal re-entry purposes, because it includes reckless endangerment and causing injury during flight, which do not prohibit only conduct that involves an intent to injure, and may be committed with mere recklessness).

AGGRAVATED FELONY - CRIME OF VIOLENCE - MENS REA REQUIREMENT - STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE, AND RECKLESSNESS ARE NOT ENOUGH
United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009) ("In Leocal v. Ashcroft, the Supreme Court held that the phrase "use ... of physical force against the person or property of another," contained in the crime of violence definition provided in 18 U.S.C. 16(a), [footnote omitted] required proof of active employment of force, and could not be satisfied by negligent or accidental conduct. 543 U.S. 1, 9-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Fernandez-Ruiz v. Gonzales, this court, sitting en banc, followed several other circuits in extending Leocal, holding that "neither recklessness nor gross negligence is a sufficient mens rea to establish that a conviction is for a crime of violence." 466 F.3d 1121, 1130 (9th Cir.2006) (en banc).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A DEADLY WEAPON - INTENT REQUIREMENT
United States v. Grajeda, 581 F.3d 1186 (9th. Cir. Sept. 21,2009) (California conviction of assault with a deadly weapon or by means likely to produce great bodily injury, under Penal Code 245(a)(1), categorically constituted a "crime of violence" for illegal re-entry sentencing purposes, since "generic intent" to commit an act likely to result in the use of force is sufficient to meet the "crime of violence" intent requirement).

NOTE: Counsel might attempt to dispute the accuracy of the Ninth Circuits analysis of California case law on "generic" intent in the assault context.

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Esparza-Herrera, ___ F.3d ___, 2009 WL 455512 (9th Cir. Feb. 25, 2009) (per curiam) (Arizona conviction for aggravated assault under Arizona Revised Statutes 13-1204(A)(11) ("[i]ntentionally, knowingly or recklessly causing any physical injury to another person") was not a conviction for a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii), as an "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another," under U.S.S.G. 2L1.2 n. 1(b)(iii), because "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness "under circumstances manifesting extreme indifference to the value of human life." Esparza-Herrera's statute of conviction, A.R.S. 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - NEGLIGENT VEHICULAR MANSLAUGHTER DOES NOT CONSTITUTE "MANSLAUGHTER" WITHIN GUIDELINES
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for vehicular manslaughter while intoxicated without gross negligence, in violation of Penal Code 192(c)(3) (1998), was not "crime of violence" for purposes of sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal reentry following conviction for qualifying felony, because the elements require only proof of ordinary negligence, so cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. 2L1.2 cmt. 1(B)(iii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING AT INHABITED DWELLING
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California conviction of under Penal Code 246 (maliciously and willfully discharge firearm at inhabited building or vehicle) did not categorically constitute a crime of violence under U.S.S.G. 2L1.2, application note 1(B)(iii) ("crime of violence" is a "federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), since the elements of this offense allow conviction for reckless or grossly negligent conduct, rather than requiring intentional use of force), holding that Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct), abrogates United States v. Lopez-Torres, 443 F.3d 1182 (9th Cir. April 25, 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTENT REQUIREMENT - GENERAL INTENT - INCLUDES RECKLESSNESS WHICH IS INSUFFICIENT TO CONSTITUTE A CRIME OF VIOLENCE
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California general intent offenses, such as willfully and maliciously discharging a firearm at an inhabited dwelling, under Penal Code 246, permit conviction for conduct showing a conscious indifference to the probable consequence that one or more projectiles will strike the target; the "conscious indifference" intent element is equivalent to recklessness.), citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct)

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___, 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. Oct. 26, 2006) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1) ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another).

SAFE HAVENS - AGGRAVATED FELONY - CRIME OF VIOLENCE - INSUFFICIENT INTENT - RECKLESSNESS
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. October 26, 2006)(en banc) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1), 13-601 ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly [i.e., with awareness and conscious disregard of a risk], but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another), following Lara-Cazares v. Gonzales, 308 F.3d 1217 (9th Cir. 2005) (gross negligence insufficient to constitute crime of violence), and overruling United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); Park v. INS, 252 F.3d 1018, 1024-1025 (9th Cir. 2001).

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
United States v. Camacho-Lopez, __ F.3d __ (9th Cir. May 30, 2006) (California conviction for vehicular manslaughter, in violation of California Penal Code 191.5(a) is not an aggravated felony crime of violence, in light of Leocal, for immigration purposes; Immigration Judge therefore improperly advised noncitizen that he was not eligible for relief; conviction for illegal re-entry following removal therefore cannot be sustained.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
Lara-Cazares v. Gonzales, ___ F.3d ___ (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).
http://caselaw.lp.findlaw.com/data2/circs/9th/0371568p.pdf      This decision calls into question the sufficiency of criminal negligence, gross negligence, and even recklessness as sufficient mens rea to constitute an aggravated felony crime of violence. Among the decisions whose validity should now be reexamined, in addition to Park, are United States v. Springfield, 829 F.2d 860 (9th Cir. 1987) and United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2004), and several BIA decisions relying on them, including Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994), and Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002).       Thanks to Lory Rosenberg for this suggestion.

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR HOMICIDE
United States v. Garcia-Espana, ___ F.Supp.2d ___, 2007 U.S. Dist. LEXIS 15696 (E.D. Wash. March 6, 2007) (defendant may not be convicted of illegal reentry after deportation, where INS erred in concluding that he was deportable because of his vehicular homicide conviction, which in turn, invalidated his deportation order, which violated his due process rights and therefore cannot serve as a predicate element of his 1326 conviction).

SAFE HAVEN - AGGRAVATED FELONY - CRIME OF VIOLENCE - CALIFORNIA ASSAULT NOT COV UNDER LEOCAL SINCE CAN BE COMMITTED BY MERE NEGLIGENCE
California conviction of assault with a dangerous weapon other than a firearm, or by force likely to produce great bodily injury, in violation of Penal Code 245(a)(1), is arguably not a crime of violence aggravated felony because California law allows conviction for "negligent assault." People v. Wright, 100 Cal.App.4th 703, 710-724 (2002). Conviction of this offense, therefore, cannot constitute a crime of violence under Leocal v. Ashcroft, 125 S.Ct. 377, 382 (2004), which held that the mens rea necessary for a crime of violence aggravated felony must be more than mere negligence.

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. Jun. 2, 2008) (Texas conviction for assault, in violation of Texas Penal Code 22.01(a)(1), is not categorically a crime of violence for illegal re-entry sentencing purposes because the statute includes reckless conduct).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ELEMENT RELATING TO INJURY RATHER THAN USE OF FORCE
United States v. Perez-Vargas, ___ F.3d ___ (10th Cir. 2005) (Colorado conviction for third-degree assault, "knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon," in violation of C.R.S. 18-3-204, where judicial decisions did not require use of force, did not constitute a "crime of violence," as defined by United States Sentencing Guideline (USSG) 2L1.2, for purposes of enhancement of a sentence for illegal reentry, since the criminal statute has as an element causation of injury, rather than use of force: "In other words, Colorado's statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.").

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).

Other

AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESSNESS " ATTEMPTED RECKLESSNESS
New York permits defendants to plead guilty to legally impossible crimes, including attempted reckless first-degree assault. See People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (2005) (affirming plea conviction to attempted assault in the first degree although the crime was a legal impossibility); Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010). Compare, United States v. Gomez"Hernandez, 680 F.3d 1171, 1175"78 & n. 4 (9th Cir. 2012) (defendant's conviction for attempted aggravated assault qualified as a crime of violence because, under Arizona law, it is not possible to be convicted of attempt without specific intent).