In bizarre news from the world of immigration, the Board of Immigration Appeals has held that while voluntary manslaughter is not an aggravated felony crime of violence, attempted voluntary manslaughter is a crime of violence, subjecting the defendant to likely deportation.
On March 15, 2018, the Board held in Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018), that attempted voluntary manslaughter under California Penal Code 192(a) and 664 is an aggravated felony under INA 101(a)(43)(F) and the crime of violence definition at 18 USC 16(a).
Manslaughter is an offense, derived from the common law, that describes the unlawful killing of a human being that is committed "without malice" for any number of reasons, classically because it is the result of "a sudden quarrel or heat of passion." The Board explained that voluntary manslaughter is not categorically a crime of violence because a violation of section 192(a) encompasses reckless acts (whereas a crime of violence requires intent). How can "voluntary" manslaughter not require intent? Because the California Supreme Court says so. In People v. Lasko, 999 P.2d 666 (Cal. 2000), it held that voluntary manslaughter includes unintentionally killing another in a sudden quarrel or heat of passion while acting with a "conscious disregard for life," equivalent to recklessness.
This is where it gets weird. While acknowledging the above, the Board explained that attempted voluntary manslaughter cannot be premised on the theory that a defendant acted with conscious disregard for life, because this would be based on the internally contradictory premise that one can intend to commit a reckless killing. Instead, one could only be convicted of attempted voluntary manslaughter if one had actually intended to kill the victim but been unable to do so. If one had killed a victim he did not intend to kill, then he could not have attempted to kill him and could never have been convicted as such. In other words a conviction for attempted voluntary manslaughter categorically precludes the possibility that the killing was of the "conscious disregard for life" category. Therefore attempted voluntary manslaughter encompasses a narrower range of conduct--than actual voluntary manslaughter--all of which is "volitional."
And while that all makes sense, in a goofy, lawerly sort of way, one cannot help but think a perverse thought: If you are winning a fight in California and have the opportunity to finish off your opponent, should you do so? If you kill him, you may get a voluntary manslaughter conviction. Later in immigration proceedings you can argue that your statute of conviction categorically encompasses reckless conduct; therefore, it's not a crime of violence; therefore, it is not an aggravated felony. But if you try not to kill him, it may appear that you simply tried and failed to do so-- in other words that you committed an attempted manslaughter, which is a deportable offense. So as a direct result of the fact that you killed him, you don't get deported?
Perhaps. Of course, the socially desirable outcome would be that not trying to kill your opponent would also be convicted as a voluntary manslaughter, of the "conscious disregard for life," non-aggravated felony variety (which is what happened in Lasko). But that eventuality only seems likely if you try to not kill him and he happens to die anyway, which might seem less believable than the possibility that you attempted to kill him and failed.
***Note: None of the above is to be taken as legal advice on how to kill a person in California. And, in fact, if you have read this entire blog entry and factored it into your decision whether to commit a homicide, be aware that you've probably crossed the line into actual murder.