(B)  Crimes of Moral Turpitude.[35]

 

Board of Immigration Appeals

 

Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (involuntary manslaughter is not a CMT).

 

Matter of Gantus-Bobadilla, 13 I. & N. Dec. 777 (BIA 1971) (New York conviction of manslaughter in the second degree under New York Penal Law § 125.15(1), recklessly causing the death of another, held not to be crime involving moral turpitude); modified by Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981).

 

Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971) (conviction of manslaughter in violation of Alaska Statutes § 11.15.040 “as charged in the indictment,” which stated that respondent “did unlawfully and feloniously kill” another person “by shooting him with a gun,” is not a conviction of a crime involving moral turpitude, since the statute encompassed both voluntary and involuntary manslaughter and the indictment did not distinctly set forth that the offense was voluntary rather than involuntary manslaughter).

Matter of Szegedi, 10 I. & N. Dec. 28 (BIA 1962) (Wisconsin conviction of reckless homicide found not to involve turpitude where the killing occurred during a quarrel in which the deceased tried to hit the noncitizen with a gun, and the gun was not in the noncitizen’s hand at the time it went off during the ensuing scuffle.  The BIA pointed out that the offense of homicide by reckless conduct did not contain the element of “depraved mind” present in the second-degree murder statute, and the noncitizen had been found not to have had a specific intent to kill or to do any act the natural consequences of which could cause death).

 

Matter of B, 4 I. & N. Dec. 493 (BIA 1951) (conviction of violating New Jersey Criminal Statutes § 2: 138-5, which embraces both voluntary and involuntary manslaughter, could have been based upon either an aggravated assault or a simple assault; since it cannot be determined from the statute or record of conviction that the offense was voluntary manslaughter rather than involuntary manslaughter, it cannot be concluded that the offense of which the noncitizen was charged and convicted involves moral turpitude).

 

Matter of E, 2 I. & N. Dec. 134 (BIA, AG, 1944) (conviction under predecessor to New York Penal Law § 125.15(1) was in this case not held to be a crime involving moral turpitude).

 

Matter of N, 1 I. & N. Dec. 181 (BIA 1941) (involuntary manslaughter in violation of § 4586 of the Arizona Code is not a crime involving moral turpitude).

 

District Courts:

 

Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.N.Y. 1958) (New York conviction of second-degree manslaughter conceded not to be CMT).

 

Vidal y Planas v. Landon, 104 F.Supp. 384 (D. Cal. 1952) (Spanish homicide conviction was held not to involve CMT where the judgment established the crime was committed in self-defense, the acts committed by the deceased were sufficient to produce in the accused a “blind rage,” by virtue of which the Spanish law allowed the court to impose the minimum penalty, and the court had held the defendant guilty of “a crime of homicide, with a mitigating circumstance.”  The Solicitor of the United States Department of Justice, in listing crimes involving moral turpitude for the information of immigration officers, had specifically excepted from the list those offenses which were “the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, or of mistaken principles, unaccompanied by a vicious motive or corrupt mind.”).

Matter of Schiano Di Cola, 7 F.Supp. 194 (D.R.I. 1934) (involuntary manslaughter through negligent or reckless operation of an automobile did not involve moral turpitude).

 

United States ex rel. Mongiovi v Karnuth, 30 F.2d 825 (D.N.Y. 1929)  (second-degree manslaughter held not to involve moral turpitude where the noncitizen’s daughter was shot to death by the accidental discharge of a pistol over which he and his wife struggled during a quarrel).

[35] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 9.21-9.24 (2005).

Third Circuit

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

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).

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 FELONYMANSLAUGHTER - 18 U.S.C. 16(a) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO ELEMENT OF USE OF FORCE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(a), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not have as an essential element the intentional use of force: "Under Minnesota law, a person can commit second-degree manslaughter without using force or risking the intentional use of force. Minn.Stat. 609.205. A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, State v. Boyer, No. C8-01-617, 2001 WL 1491450, at * 1 (Minn.Ct.App. Nov. 27, 2001), by allowing a child to die of dehydration while in the person's care, State v. Williams, No. A04-1694, 2005 WL 3046328, at * 1 (Minn.Ct.App. Nov. 15, 2005), by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, State v. Bicek, 429 N.W.2d 289, 291 (Minn.Ct.App.1988), and, indeed, by driving drunk with "culpable negligence" in a manner that causes the death of a passenger. State v. Geary, 239 N.W. 158, 159-60 (Minn.1931). As such, the "use of force," as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(b) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO SUBSTANTIAL RISK THAT THE ACTOR WILL INTENTIONALLY USE FORCE IN THE COMMISSION OF THE OFFENSE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(b), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not "involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense. A perpetrator's knowing disregard of a serious risk of injury, as required by the Minnesota manslaughter statute, is different from a robber or burglar ignoring the risk that he may resort to the intentional use of force in committing the offense."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

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 - 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)).

Lower Courts of Ninth Circuit

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).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
See § 7.49