BIA Holds That The Offense Of Aggravated Unlicensed Operation Of A Motor Vehicle In The First Degree In Violation Of New York Vehicle And Traffic Law §511(3)(a)(i), Which Prohibits A Person From Driving Under The Influence Of Alcohol Or Drugs (DUI) 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.
On March 31, 2021, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of a decision by an Immigration Judge (IJ) terminating removal proceedings against the Respondent, reinstated proceedings and remanded the record to the IJ. Respondent, a lawful permanent resident (LPR), was convicted twice of aggravated unlicensed operation of a motor vehicle in the first degree in violation of New York Vehicle and Traffic Law §511(3)(a)(i); based on these convictions, DHS charged her with removability, per INA §237(a)(2)(A)(ii) as one convicted of 2 crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
Relying on prior BIA precedent, Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), the IJ found that Respondent’s statute of convictions can involve both reprehensible conduct and a culpable mental state, constituting a crime involving moral turpitude (CIMT). However, he distinguished Respondent’s New York statute from the Arizona law at issue in Matter of Lopez-Meza because the latter requires a defendant to “drive” a motor vehicle, while the former reaches merely one who “operates” a vehicle. Therefore, the IJ concluded there is a realistic probability that §511(3)(a)(i) would be applied to nonrepensible conduct falling outside the generic definition of a CIMT and terminated proceedings. DHS, on appeal, challenged this decision, contending Respondent’s DUI convictions are CIMTs. The Board initially noted that whether they are, thus rendering her removable, is a question of law reviewed de novo.
In beginning its analysis, the BIA stated that it applies the “categorical approach” to the New York statute to see “whether DUI fits within the generic definition of a crime involving moral turpitude,” while focusing on the minimum conduct that has a “realistic probability of being prosecuted under the statute.” The opinion reiterated that to be a CIMT, a crime requires 2 essential elements: reprehensible conduct and a culpable mental state; it then noted that §511(3)(a)(i) requires a defendant to operate a motor vehicle on a public highway while under the influence of alcohol or drugs (DUI) knowing or having reason to know his or her license or privilege to operate a motor vehicle or privilege to obtain a driver’s license has been suspended, revoked or withdrawn. The Board thus concluded that a conviction under this law requires the State to establish both a culpable mental state and the requisite level of reprehensible conduct for a CIMT and that there is no realistic probability the statute would be applied to conduct that would not constitute a CIMT.
Agreeing with the IJ that a conviction under §511(3)(a)(i) requires a culpable mental state sufficient for a CIMT, the BIA noted that in Lopez-Meza, it had explained that when the offense of driving under the influence (DUI) is committed by one 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 CIMT. The decision stated that Lopez-Meza had reasoned that the aggravated factor that turned the offense into a CIMT was “the culpable mental state needed” for a conviction under Arizona law, i.e., that the defendant knew, at the time that he was driving while under the influence of alcohol (DUI), that his driver’s licence had been suspended and that he was not permitted to drive. On appeal, Respondent contended that §511(3)(a)(i) is not a CIMT because it allows for the conviction of one who knew or, at a minimum, had “reason to know” their privilege to drive had been suspended, revoked or withdrawn. Respondent maintained that it is unclear whether having “reason to know” that a license is suspended amounts to recklessness or criminal negligence under New York law and argued that neither mental state requires sufficient culpability for a CIMT.
The Board stated that it had previously held that recklessness is a sufficiently culpable mental state for moral turpitude purposes “where it entails a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct.” Because the New York law requires a defendant to operate a motor vehicle while under the influence, knowing or having reason to know he is not permitted to drive, and one who creates a “substantial and unjustifiable risk” but is unaware of such risk solely due to voluntary intoxication is acting “recklessly” under New York law, the decision concluded that a violation of §511(3)(a)(i) “necessarily involves, at a minimum, recklessness, a culpable mental state falling within the definition” of a CIMT.
As to the issue of reprehensible conduct, the BIA disagreed with the IJ’s determination that there is a realistic probability the New York statute will be applied to conduct that is not reprehensible because it covers one who merely “operates” rather than “drives” a motor vehicle. Here, DHS argued that the term “operates” in §511(3)(a)(i) is analogous to the requirement in the Arizona law at issue in Lopez-Meza that one “drive or be in actual control” of the vehicle; the Board was persuaded, and therefore held that one can only be found guilty under §511(3)(a)(i) for operating a motor vehicle upon a public highway while knowing or having reason to know that his or her license or privilege to drive has been suspended, revoked or withdrawn.
Lastly, the BIA found that 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 it in motion, even though the vehicle does not move. Thus, the decision explained, “the statute requires a defendant to either actually drive the vehicle, or take active steps to drive it.” Because “operating” a vehicle in either of these ways puts the public at risk when one is under the influence on a public highway, the offense involves “a baseness so contrary to accepted moral standard that it rises to the level of a” CIMT, per Lopez-Meza. The Board thus concluded that the offense of aggravated unlicensed operation of a motor vehicle in the first degree under New York law is categorically a CIMT.
The DHS appeal was sustained, the IJ’s decision vacated, proceedings reinstated and the record remanded for further proceedings. Matter of Vucetic, I&N Dec. 276 (BIA 2021).
