Category Archives: Voluntary Manslaughter

BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).

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