The BIA has, in general terms at least, defined gross or criminal negligence and recklessness and has held that while a negligent intent will not generally suffice to find moral turpitude, reckless conduct will.  As with all cases in which the BIA definition of a term may differ from the state definition of the same term, there may be cases where a noncitizen has been convicted of committing a willful or reckless act, but looking to the convicting jurisdiction’s definition of reckless, s/he has only been convicted of a criminally negligent act as defined by the BIA. 

 

Additionally, even though a statute requires “willfulness,” case law or jury instructions may establish that a conviction may be sustained under the statute for conduct that the BIA would define as merely negligent.[157]  In Ablett v Brownell,[158] for example, the court held that a British conviction of “willfully” being a “party to the continued use” of rented premises as a brothel did not necessarily and inevitably constitute a crime involving moral turpitude, since the minimum conduct necessary to violate the statute could include a landlord who had merely failed through negligence or inertia to take prompt action after notice to prevent further use of the premises as a brothel.

 

In Mei v. Ashcroft,[159] a petitioner was convicted of willfully evading a police officer.  In deciding that the offense was a crime of moral turpitude, the Seventh Circuit focused on the fact that any person who violates the statute “may not want to endanger anyone, but he has to know that he is greatly increasing the risk of an accident . . . and he is doing so as a consequence of his deliberate and improper decision to ignore a lawful order of the police.”  This statement would fit better with the BIA definition of “recklessness” than willfulness.

[157] See, e.g., People v. Barker, 96 P.3d 507 (Cal. 2004) (forgetting to register as a sex offender is a violation of California Penal Code § 290(g)(1), even though the statute requires a “willful” violation of the sex offender registration statute).

[158] Ablett v. Brownell, 240 F.2d 625, 99 App. D.C. 387 (D.C. Cir. 1957).

[159] Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (a requirement of willfulness was found to be inherent in the aggravated form of evading a police officer, under 625 ILCS 5/11-204, where willfulness is an element of the unaggravated form of the offense, and by reference to the jury instructions given in aggravated evading cases requiring willfulness; any person who violates this statute “may not want to endanger anyone, but he has to know that he is greatly increasing the risk of an accident (and for the further reason that a fleeing driver is dividing his attention between the road ahead and his pursuer); and he is doing so as a consequence of his deliberate and improper decision to ignore a lawful order of the police.”).

Sixth Circuit

JUDICIAL REVIEW " DEFERENCE " CRIMES OF MORAL TURPITUDE
Ruiz-Lopez v. Holder, 682 F.3d 513, *516 (6th Cir. Jun. 19, 2012) (court of appeals gives Chevron deference to BIA interpretation of vague statutory phrase moral turpitude unless it is arbitrary, capricious, or manifestly contrary to the statute. Kellermann, 592 F.3d at 702 (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843"44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). No deference is given, however, to the BIA's interpretation of a state criminal statute; that issue is reviewed de novo. Serrato"Soto, 570 F.3d at 688.).