The BIA appears to have adopted the following definition of criminal (or gross) negligence:

 

“Criminal negligence exists when the perpetrator ‘fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation.’”[982]

The key element in this definition are that the person was unaware of the risk.  As long as this lack of awareness is present, gross negligence will not be found to involve moral turpitude.[983]

 

            If the minimum intent required to commit the offense is criminal or gross negligence, as defined as a lack of awareness of a substantial risk, the offense will not be a crime of moral turpitude.

[982] Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992), citing Wash. Rev. Code Ann. § 9A.08.010(1)(d) (West 1992).

[983] Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (third degree assault); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (child abuse); Matter of B, 2 I. & N. Dec. 867 (BIA 1947) (Canadian conviction for willfully damaging property not shown to involve moral turpitude, where term “willfully,” is defined so broadly as to cover what courts in the United States would regard as gross or wanton negligence)

Ninth Circuit

CRIMES OF MORAL TURPITUDE - INTENT REQUIREMENT - NEGLIGENCE INSUFFICIENT TO CONSTITUTE CMT - "SHOULD HAVE KNOWN" IS NEGLIGENCE STANDARD
Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir. 2009) (en banc) (a mens rea of "should have known" is a negligence standard, which is insufficient to support a finding of moral turpitude), citing State v. Hyde, 186 Ariz. 252, 921 P.2d 655, 678 (1996). See also, Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618-19 (BIA 1992).

NOTE: The court in Marmalejo-Campos found that the noncitizen had committed the offense "knowingly."