Criminal Defense of Immigrants
§ 20.13 d. Negligence
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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.”
“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.”
If an offense requires mere negligence, it should not be considered a crime involving moral turpitude. The BIA determined, for example, that criminally negligent child abuse did not constitute an offense of moral turpitude. Similarly, a Washington conviction for third-degree assault, where the defendant caused injury to the victim “with criminal negligence,” was not a crime involving moral turpitude. Involuntary manslaughter has also been determined not to involve moral turpitude where, under the statute of conviction, it may be 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.
 Black’s Law Dictionary (8th Ed. 2004), Negligence.
 Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 3.7, at 235-37 (2d ed. 1986).
 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, e.g., Partyka v. Atty. Gen., 417 F.3d 408 (3d 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); People v. Bussel, 97 Cal.App.4th Supp. 1 (Jan. 17, 2002) (ordinary negligence will support a misdemeanor California vehicular manslaughter conviction); In re Dennis B., 18 Cal.3d 687 (1976).
 Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).
 Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992).
 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”).
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).
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."