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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).