BIA Holds That Criminally Negligent Homicide In Violation Of New York Penal Law § 125.10 Is Categorically Not A Crime Involving Moral Turpitude As It Does Not Require A Defendant To Have A Sufficiently Culpable Mental State.

On October 16, 2017, the Board of immigration Appeals (BIA or Board), in sustaining a respondent’s appeal of an Immigrant Judge’s (IJ’s) order of removal, held that criminally negligent homicide under New York law is not a crime involving moral turpitude (CIMT).  After respondent, a lawful permanent resident, was convicted of criminally negligent homicide and, subsequently, of promoting prostitution, DHS initiated removal proceedings charging him under both INA § 237(a)(2)(A)(i) as one convicted of CIMT within 5 years of Admission and (a)(2)(A)(ii) as one who at any time after admission is convicted for 2 or more CIMT’s not arising out of a single scheme of misconduct.  Initially, the BIA noted that if the homicide conviction is not for a CIMT, proceedings would have to be terminated because neither charge of removability could be sustained.  

Respondent argued on appeal that his first conviction did not render him removable as § 125.10 punishes criminally negligent conduct, which is not morally turpitudinous.  In assessing, whether an offense is a CIMT, the Board stated that it employs the categorical approach by comparing the elements of the state offense to those of the generic crime to determine if there is a categorical match.  Previously, it had held that moral turpitude inheres in crimes involving serious misconduct committed “with at least a culpable mental state of recklessness”, i.e., a conscious disregard of a substantial and unjustifiable risk, citing to Matter of Franklin, 20 I&N Dec. 867 (BIA) 1994) and an earlier precedent Board decision which had found that one acting under this mental state could be convicted of a CIMT because recklessness requires an actual awareness of risk; both BIA cases had been affirmed by the U.S. Courts of Appeal.  In contrast, noted the Board, crimes committed with criminal negligence are usually not morally turpitudinous because neither intent nor a conscious disregard of substantial and unjustifiable risk is required for conviction, thus no sufficiently culpable mental state need be proven.

In parsing the statute of conviction, the BIA found that § 125.10 provides that one is guilty of criminally negligent homicide when, with “criminal negligence”, he causes the death of another while § 15.05(4) defines criminal negligence as the failure to perceive a substantial and unjustifiable risk.  Thus, held the Board, criminal negligence under New York law is materially distinct from the concept of “recklessness” outlined in the above-referenced precedent decisions in that it only requires a perpetrator to fail to perceive such a risk whereas recklessness requires the risk to be consciously disregarded.  Therefore, concluded the decision, the elements of § 125.10 “do not categorically fall within the definition” of a CIMT.  As a result, the IJ was found to have erred in finding the respondent removable, the appeal was sustained and proceedings terminated.  Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017).