Negligence can be defined as “any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights.”[976]

 

            “Though the legislatures and the courts have often made it clear that criminal liability generally requires more fault than the ordinary negligence which will do for tort liability, they have not so often made it plain just what is required in addition to tort negligence -- greater risk, subjective awareness of the risk, or both. Statutes are sometimes worded in terms of ‘gross negligence’ or ‘culpable negligence’ or ‘criminal negligence,’ without any further definition of these terms. . . .  The courts thus have had to do their best with little guidance from the legislature, with varying results.”[977] The BIA appears to distinguish between merely negligent acts and grossly negligent acts.  This may be partly because an act does not necessarily have to result in a criminal conviction to constitute a crime of moral turpitude.

 

If an offense requires mere negligence, it cannot be considered a crime involving moral turpitude. [978]

 

Involuntary manslaughter has generally been found not to involve moral turpitude because it is committed without contemplating death, without malice, and without intent, usually while engaged in a lawful act, through carelessness or the absence of due caution or circumspection. [979]

            Voluntary manslaughter has always been held to be a CMT.[980]  Formerly, involuntary manslaughter was held not to be a CMT.  More recently, involuntary manslaughter has been held to involve moral turpitude if a reckless mens rea, or more culpable intent, was required as an essential element.  Cases have been inconsistent where the statute of conviction does not distinguish between voluntary and involuntary manslaughter, sometimes improperly resorting to the record of conviction in search of facts for use in classifying the offense as a CMT.

 

            Voluntary manslaughter, committed in a jurisdiction following the common-law classification of manslaughter into voluntary and involuntary, has generally been held to involve moral turpitude, criminal intent being inferred from the voluntary aspect of the crime.

 

Where a noncitizen has been convicted of manslaughter in a jurisdiction not following the common-law classification of manslaughter, the reviewing authority frequently examines the elements of the crime as defined by the pertinent statute or set forth in the charges under which the noncitizen was convicted to determine whether the crime would be classified under the common law as voluntary.  If the elements of voluntary manslaughter are present, the crime is held to be one involving moral turpitude.[981]

[976] Black’s Law Dictionary (8th Ed. 2004), Negligence.

[977] Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 3.7, at 235-37 (2d ed. 1986).

[978] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(10)(b) (“A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter which only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly.”).  See People v. Bussel, 97 Cal.App.4th Supp. 1 (January 17, 2002) (ordinary negligence will support a misdemeanor California vehicular manslaughter conviction); In re Dennis B., 18 Cal.3d 687 (1976).

[979] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(10)(b) (“a conviction for the statutory offense of vehicular homicide or other involuntary manslaughter which only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly”).

[980] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(10)(a).

[981] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 10(a) (1975).

BIA

CRIMES OF MORAL TURPITUDE " MENTAL STATE " NEGLIGENT MENTAL STATE INSUFFICIENT TO CONSTITUTE A CMT
Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011)( a negligent mental state is insufficient to constitute a crime of moral turpitude); citing Matter of M, 2 I&N Dec. 686, 691 (C.O., BIA 1946) (negligent damage to railway telegraph property held not to be a crime of moral turpitude); Matter of B, 2 I&N Dec. 867, 868-69 (C.O., BIA 1947) (willful damage to mail boxes and other property held not to be a crime of moral turpitude because it could be committed with negligence).

Third Circuit

CRIME OF MORAL TURPITUDE - NEGLIGENT AGGRAVATED ASSULT ON AN OFFICER
Partyka v. Atty. Gen., __ F.3d __ (3rd Cir. Aug. 11, 2005) (aggravated assault on a law enforcement officer in the third degree, in violation of N.J. Stat. Ann. 2C:12-1b(5)(a), is not necessarily a crime of moral turpitude, where the statute may be committed with negligent intent). http://caselaw.lp.findlaw.com/data2/circs/3rd/042804p.pdf

Other

SAFE HAVEN " WASHINGTON " ASSAULT " NEGLIGENT ASSAULT NOT CRIME OF MORAL TURPITUDE
Assault with a mens rea of negligence, with no element that the victim is a minor, and where the judicially noticeable record of conviction does not indicate minority of the victim, should not be considered a crime involving moral turpitude. Washington Assault in the Third Degree, a Class C felony, has two subsections that may be committed negligently. See Matter of Perez-Contreras 20 I&N Dec 615 (BIA 1992). A negligent assault is also not a crime of violence aggravated felony. See Leocal v. Ashcroft 543 US 1 (2004). Thanks to Jonathan Moore.