VUCETIC ( 2021 )

Cite as 28 I&N Dec. 276 (BIA 2021) Interim Decision #4014
Matter of Margaret VUCETIC, Respondent
Decided March 31, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of aggravated unlicensed operation of a motor vehicle in the first degree in
violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits
a person from driving under the influence of alcohol or drugs while knowing or having
reason to know that his or her license is suspended, is categorically a crime involving moral
turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
FOR RESPONDENT: Kerry Q. Battenfeld, Esquire, Buffalo, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eric W. Schultz, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MULLANE, and GORMAN, Appellate Immigration
Judges.
GRANT, Appellate Immigration Judge:
In a decision dated May 7, 2018, an Immigration Judge terminated the
removal proceedings against the respondent. The Department of Homeland
Security (“DHS”) has appealed from this decision. The respondent opposes
the appeal. The appeal will be sustained, the proceedings will be reinstated,
and the record will be remanded to the Immigration Judge for further
proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Canada and a lawful permanent
resident of the United States. She was twice convicted of aggravated
unlicensed operation of a motor vehicle in the first degree in violation of
section 511(3)(a)(i) of the New York Vehicle and Traffic Law as
a consequence of two separate arrests in 2014 and 2015, respectively. Based
on these convictions, the DHS charged her with removability under section
237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(ii) (2012), as an alien convicted of two crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct.
Relying on Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), the
Immigration Judge determined that the respondent’s State statute of
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conviction—which prohibits a person from driving under the influence of
alcohol or drugs while knowing or having reason to know that his or her
license is suspended—can involve both reprehensible conduct and a culpable
mental state for purposes of a crime involving moral turpitude. However,
the Immigration Judge distinguished the respondent’s New York statute of
conviction from the Arizona statutes at issue in Matter of Lopez-Meza,
because, while the Arizona statutes require a defendant to “drive” a motor
vehicle, the respondent’s State statute of conviction reaches, at a minimum,
an individual who merely “operates” a vehicle. Thus, the Immigration Judge
concluded there is a realistic probability that section 511(3)(a)(i) would be
applied to nonreprehensible conduct falling outside the generic definition of
a crime involving moral turpitude and terminated proceedings.
On appeal, the DHS challenges the Immigration Judge’s decision to
terminate, arguing that it has established that the respondent’s offenses are
crimes involving moral turpitude, which render her removable under section
237(a)(2)(A)(ii) of the Act. See section 240(c)(3)(A) of the Act, 8 U.S.C.
§ 1229a(c)(3)(A) (2018) (providing that the DHS has the burden of
establishing by clear and convincing evidence that an alien who has been
admitted to the United States is removable). Whether the respondent’s
offenses are crimes involving moral turpitude that render her removable is
a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
II. ANALYSIS
To determine whether the respondent’s convictions are crimes involving
moral turpitude, we apply the “categorical approach,” examining the State
statute “defining the crime of conviction to see whether it fits within the
generic definition of a crime involving moral turpitude,” while “focus[ing]
on the minimum conduct that has a realistic probability of being prosecuted
under the statute.” Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA
2016) (citing Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)); see also
Matthews v. Barr, 927 F.3d 606, 617–18 (2d Cir. 2019), cert. denied,
141 S. Ct. 158 (2020).
“To involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino,
26 I&N Dec. at 834. Conduct is “reprehensible” if it is “inherently base, vile,
or depraved, and contrary to the accepted rules of morality and the duties
owed between persons or to society in general,” while a “culpable mental
state” requires deliberation or consciousness, such as intent, knowledge,
willfulness, or recklessness. Id. at 833–34 (citation omitted).
At all relevant times, the respondent’s State statute of conviction provided
as follows:
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Aggravated unlicensed operation of a motor vehicle in the first degree. (a) A person
is guilty of the offense of aggravated operation of a motor vehicle in the first degree
when such person: (i) commits the offense of aggravated unlicensed operation of a
motor vehicle in the second degree as provided in subparagraph (ii), (iii), or (iv) of
[section 511(2)(a) of the New York Vehicle and Traffic Law] and is operating
a motor vehicle while under the influence of alcohol or a drug in violation of
[sections 1192(1)–(5) of that statute].
N.Y. Veh. & Traf. Law § 511(3)(a)(i) (McKinney 2014). This provision
requires a defendant to operate a motor vehicle on a public highway while
under the influence of alcohol or a drug knowing or having reason to know
his or her license or privilege of operating such a motor vehicle or privilege
of obtaining a license to operate such a vehicle is suspended, revoked, or
otherwise withdrawn. CJI2d[NY] Veh. & Traf. Law § 511(3)(a)(i) (2020).
We conclude that a conviction under this provision requires the State to
establish both the requisite culpable mental state and level of reprehensible
conduct for a crime involving moral turpitude, and there is no realistic
probability the statute would be applied to conduct that would not constitute
a crime involving moral turpitude.
A. Culpable Mental State
We agree with the Immigration Judge that a violation of section
511(3)(a)(i) requires a culpable mental state sufficient for a crime involving
moral turpitude. In Matter of Lopez-Meza, 22 I&N Dec. at 1196, this Board
explained that when the offense of driving under the influence “is committed
by an individual who knows that he or she is prohibited from driving, the
offense becomes such a deviance from the accepted rules of contemporary
morality that it amounts to a crime involving moral turpitude.” We reasoned
that “[t]he aggravating factor rendering the [driving under the influence]
conviction a crime involving moral turpitude in Matter of Lopez-Meza was
the culpable mental state needed for a conviction under” the Arizona statutes
at issue in that case—namely, “that the defendant knew, at the time that he
was driving while under the influence of alcohol, that his driver’s license had
been suspended and that he was not permitted to drive.” Matter of
Torres-Varela, 23 I&N Dec. 78, 85 (BIA 2001) (citing Matter of Lopez-Meza,
22 I&N Dec. at 1194–95). In light of these “aggravating circumstances,” we
concluded that the Arizona statutes at issue required a sufficient culpable
mental state for a crime involving moral turpitude, despite the absence of
“a specific element of intent in the statutes.” Matter of Lopez-Meza, 22 I&N
Dec. at 1195; see also id. at1192 (“[W]hile crimes involving moral turpitude
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often involve an evil intent, such a specific intent is not a prerequisite to
finding that a crime involves moral turpitude.”).
On appeal, the respondent maintains that section 511(3)(a)(i) of the New
York Vehicle and Traffic Law is not a crime involving moral turpitude
because the statute provides that a person may be convicted of that offense if
they knew or, at a minimum, had “reason to know” their privilege to drive
had been suspended, revoked, or withdrawn. The respondent argues that it
is unclear whether having “reason to know” that a license has been suspended
amounts to recklessness or criminal negligence under New York law, and
she contends that neither recklessness nor criminal negligence is a sufficient
culpable mental state for a crime involving moral turpitude.
Pursuant to section 15.05(3) of the New York Penal Law, “[a] person acts
recklessly with respect to a result or to a circumstance described by a statute
defining an offense when he [or she] is aware of and consciously disregards
a substantial and unjustifiable risk that such result will occur or that such
circumstance exists,” and “[t]he risk must be of such nature and degree that
disregard thereof constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation.” (Emphasis added.)
“A person who creates [a substantial and unjustifiable] risk but is unaware
thereof solely by reason of voluntary intoxication also acts recklessly with
respect thereto.” Id. (emphasis added). By contrast, “[a] person acts with
criminal negligence [under New York law] with respect to a result or to
a circumstance described by a statute defining an offense when he [or she]
fails to perceive a substantial and unjustifiable risk that such result will occur
or that such circumstance exists.” N.Y. Penal Law § 15.05(4) (McKinney
2021) (emphasis added).
We have held that recklessness is a sufficient culpable mental state for
moral turpitude purposes where it entails a conscious disregard of
a substantial and unjustifiable risk posed by one’s conduct. See, e.g., Matter
of Tavdidishvili, 27 I&N Dec. 142, 143–44 (BIA 2017) (collecting cases).
As noted, the respondent’s State statute of conviction requires a defendant to
operate a motor vehicle while under the influence knowing or having reason
to know he or she is not permitted to drive. See CJI2d[NY] Veh. & Traf.
Law § 511(3)(a)(i). Because a person who creates a “substantial and
unjustifiable risk,” but is unaware of such a risk “solely by reason of
voluntary intoxication,” acts recklessly under New York law, we conclude
that a violation of section 511(3)(a)(i) necessarily involves, at a minimum,
recklessness, a culpable mental state falling within the definition of a crime
involving moral turpitude. N.Y. Penal Law § 15.05(3); see also Gayle
v. Sessions, 719 F. App’x 68, 69–70 (2d Cir. 2018) (holding that reckless
endangerment in the second degree under New York law, which requires
a perpetrator to act recklessly within the meaning of section 15.05(3),
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involves a sufficient culpable mental state for a crime involving moral
turpitude).
B. Reprehensible Conduct
We disagree with the Immigration Judge’s determination that there is a
realistic probability the respondent’s State statute of conviction would be
applied to conduct that is not reprehensible because the statute covers an
individual who merely “operates,” rather than “drives,” a motor vehicle. The
DHS asserts that the term “operates” in section 511.3(a)(i) is analogous to
the requirement in the Arizona statutes at issue in Matter of Lopez-Meza,
22 I&N Dec. at 1189, that a defendant “driv[e] or be[] in actual control” of
a vehicle. We are persuaded by the DHS’s argument.
Section 511(3)(a)(i) cannot be read in isolation; it must be read in
conjunction with the statutory provisions it follows and cross-references—
namely, sections 511(1) and 511(2) of the New York Vehicle and Traffic
Law. See generally Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(stating that courts generally read statutory language in the context of the
broader statutory scheme). Section 511(2)(a) provides that a person is guilty
of aggravated unlicensed operation of a vehicle in the second degree when,
under various circumstances including those related to prior suspension of
a license as a consequence of impaired driving, the person commits the
offense of aggravated unlicensed operation of a motor vehicle in the third
degree, as defined in section 511(1)(a). Therefore, a person can only be
found guilty under section 511(3)(a)(i) for engaging in conduct that is
prosecutable under section 511(1)(a)—and that provision clearly states that
a person is guilty “when such person operates a motor vehicle upon a public
highway while knowing or having reason to know that such person’s license
or privilege” to drive has been “suspended, revoked or . . . withdrawn.” N.Y.
Veh. & Traf. Law § 511(1)(a) (emphasis added).
Thus, reading section 511(3)(a)(i) of the New York Vehicle and Traffic
Law in conjunction with sections 511(1)and 511(2), a person is guilty of the
offense of aggravated unlicensed operation of a motor vehicle in the first
degree only when such person “operates a motor vehicle upon a public
highway” while under the influence knowing or having reason to know that
such person’s license or privilege of operating such a vehicle or privilege of
obtaining a license to operate such a vehicle is suspended, revoked, or
otherwise withdrawn based on: a prior finding of “[o]perating a motor
vehicle while under the influence of alcohol or drugs” in violation of section
1192 of the New York Vehicle and Traffic Law; a conviction for a violation
of that section; or a mandatory suspension pending prosecution for such
a violation.
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The phrase “operates a motor vehicle” under New York law encompasses
driving a vehicle as well as “[using] the mechanism of the automobile for the
purpose of putting the automobile in motion even though [the vehicle does
not move].” People v. O’Connor, 607 N.Y.S.2d 856, 858 (Crim. Ct. 1994)
(alterations in original) (citations omitted); see also People v. Alamo, 315
N.E.2d 446, 458–59 (N.Y. 1974); People v. Marriott, 325 N.Y.S.2d 868, 868
(App. Div. 1971). In other words, the statute requires a defendant to either
actually drive the vehicle, or take active steps to drive it. Because section
511(3)(a)(i) requires a defendant to “operate” a vehicle in either of these
ways while under the influence “on a public highway,” putting the public at
risk, the offense involves “a baseness so contrary to accepted moral standards
that it rises to the level of a crime involving moral turpitude.” Matter
of Lopez-Meza, 22 I&N Dec. at 1195. Based on this requirement, we
additionally conclude that there is not a realistic probability the respondent’s
State statute of conviction would be applied to conduct that is not
reprehensible—such as conduct that took place solely on a vehicle owner’s
private driveway.
Weighing the dangerous conduct necessarily involved in a violation of
section 511(3)(a)(i) along with the culpable mental state needed to commit
such a violation, we conclude that the offense of aggravated unlicensed
operation of a motor vehicle in the first degree under New York law is
categorically a crime involving moral turpitude. See id. at 1196 (stating that
a finding of moral turpitude “results from a building together of elements by
which the criminalized conduct deviates further and further from the private
and social duties that persons owe to one another and to society in general”).
Therefore, the DHS has satisfied its burden to establish that the respondent’s
convictions under this statute render her removable under section
237(a)(2)(A)(ii) of the Act, and the Immigration Judge erred when he
terminated proceedings. 1 Accordingly, the appeal of the DHS is sustained,
the decision of the Immigration Judge is vacated, and the proceedings are
reinstated. The record is remanded to give the respondent an opportunity to
apply for any relief for which she may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
1
The respondent does not argue that her offenses arise out of a single scheme of criminal
misconduct, and we deem the issue waived. See, e.g., Matter of P-B-B-, 28 I&N Dec. 43,
44 n.1 (BIA 2020).
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