In re M-W

Decision Date09 April 2012
Docket NumberInterim Decision #3746
Citation25 I&N Dec. 748
PartiesMatter of M-W-, Respondent
CourtU.S. DOJ Board of Immigration Appeals

Pursuant to the categorical approach, a conviction for the aggravated felony of murder, as defined in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2006), includes a conviction for murder in violation of a statute requiring a showing that the perpetrator acted with extreme recklessness or a malignant heart, notwithstanding that the requisite mental state may have resulted from voluntary intoxication and that no intent to kill was established.

FOR RESPONDENT: George E. Ward, Esquire, Canton, Michigan

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brian C. Burgtorf, Assistant Chief Counsel

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:

In a decision dated November 23, 2010, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted of an aggravated felony, determined that he was not eligible for any relief from removal, and ordered him removed from the United States. The respondent has appealed from that decision. The principal issue in this case is whether the respondent was properly found removable as having been convicted of the aggravated felony of murder under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2006). To answer this question we must define, at least partially, the scope of the "murder" aggravated felony, in particular where the State statute allows a conviction under some circumstances that do not involve an intent to kill. We conclude that the respondent was convicted of an aggravated felony and will dismiss his appeal.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Poland who was admitted to the United States on July 20, 1982, as a refugee and adjusted his status to thatof a lawful permanent resident on August 2, 1983. The respondent was convicted in 2003 based on a no contest plea to two charges of second-degree murder under section 750.317 of the Michigan Compiled Laws. The two counts, which contain identical language except for the names of the victims, charged the respondent with killing an elderly couple. Specifically, the amended information charged that the respondent acted "with intent to kill, to do great bodily harm, or to act in wanton and willful disregard of the likelihood that the natural tendency of said act would cause death or great bodily harm."

The offense appears to have resulted from an early morning traffic incident in which the respondent rear-ended a car, killing the occupants on impact. Other counts to lesser offenses in the information indicate that the respondent was driving under the influence of alcohol.1 Before the Immigration Judge and on appeal, the respondent explained that he pled no contest to the second-degree murder charges in exchange for a reduced sentence. Guilty judgments on two counts of second-degree murder were entered against him on March 18, 2003, and on April 11, 2003, he was sentenced to imprisonment for a period of 8 to 20 years.

The respondent was charged under section 237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony, specifically those defined at section 101(a)(43)(A) as "murder, rape, and sexual abuse of a minor" and at section 101(a)(43)(F) as a "crime of violence." The Immigration Judge found that the respondent's convictions satisfied both aggravated felony definitions. For the reasons that follow, we agree with the determination that a second-degree murder conviction under Michigan law constitutes an aggravated felony conviction under section 101(a)(43)(A) of the Actbecause it is, categorically, a conviction for "murder." Since we find that the respondent is removable as an alien who has been convicted of an aggravated felony under section 101(a)(43)(A), we need not consider whether the conviction is also for a crime of violence within the meaning of section 101(a)(43)(F).

II. STATUTE INVOLVED

Michigan, like many other States and the Federal Government, defines murder in two degrees. Section 750.316 of the Michigan Compiled Statutes defines murder in the first degree, in relevantpart, as consisting of three types: (1) murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing; (2) murder committed in the perpetration of, or attempt to perpetrate, various enumerated offenses; and (3) murder of a peace officer or corrections officer who was engaged in the performance of his or her duties.

Second-degree murder is defined by section 750.317 of the Michigan Compiled Laws as encompassing "[a]ll other kinds of murder." See also 18 U.S.C. § 1111(a) (2006). The respondent and the Department of Homeland Security ("DHS") agree that in this case the murder was not premeditated or intentional,2 and we observe that the doctrine of felony murder is also not applicable in this case.3 Accordingly, we address only whether a certain type of murder conviction, not being of the felony-murder variety and requiring no intent to kill, satisfies the definition of murder for purposes of the aggravated felony definition at section 101(a)(43)(A) of the Act.

III. ANALYSIS
1. Analytical Framework

When the Act was amended in 1988 to introduce the term "aggravated felony," murder was among the first crimes to be listed under the newlycreated deportable offense covering aliens convicted of an aggravated felony. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 ("ADAA"); Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir. 2000); Matter of A-A-, 20 I&N Dec. 492, 495 (BIA 1992). However, the term "murder" has been in the Act since1952 as a bar to good moral character. See Immigration and Nationality Act, Pub. L. No. 82-414, § 101(f)(8), 66 Stat. 163, 172 (1952) (codified at 8 U.S.C. § 1101(f)(8) (1958)); see also Taylor v. United States, 231 F.2d 856 (5th Cir. 1956). We are aware of no cases or legislative sources explaining the intended scope of the term "murder" in these statutes. As regards the ADAA, it was introduced and passed by both the House of Representatives and the Senate between September and November 1988. During that period, the relevant legislative history does not reflect that the inclusion of "murder" as an aggravated felony in the Act was the subject of any amendment, and there was no extensive reporting or discussion of the term.

As the Immigration Judge noted, very little precedent construes the term "murder" in the aggravated felony definition at section 101(a)(43)(A) of the Act. Murder is a "generic" offense. See Nijhawan v. Holder, 129 S. Ct. 2294, 2298-2300 (2009) (noting that the term "aggravated felony," as used in the Act, may refer to so-called "generic" offenses subject to categorical definition or to "circumstance-specific" crimes that refer to the "specific way in which an offender committed the crime on a specific occasion"). Unlike other offenses that have been the subject of analysis by the Federal courts, murder has not diverged significantly from its common-law roots. Cf. Taylor v. United States, 495 U.S. 575, 593 (1990) (ascertaining the elements of the aggravated felony of burglary, which is likewise of common-law origin). Therefore, while we acknowledge the applicability of the type of analysis contemplated by the Supreme Court in Taylor, our task is somewhat simpler, given the existence of (1) a common-law definition of "murder" that remained stable until the adoption of the Model Penal Code, and (2) a Federal statute defining murder, namely, 18 U.S.C. § 1111(a). Although this Federal statute is a significant point of reference in defining the murder aggravated felony, it is not dispositive to our discussion since section 101(a)(43)(A) of the Act does not refer to it.4 In invoking the Taylor methodology—examining, inter alia, common-law and State law to identify the "uniform, categorical definition[]" of an offense—our touchstone is the definition of the crimeof "murder" that Congress had in mind when it added that offense to the Act as an aggravated felony in 1988.5 Taylor v. United States, 495 U.S. at 581-82, 587-77, 590.

2. Common-law and Federal Definitions of "Murder"—Malice

"Murder" is defined as the "killing of a human being with malice aforethought." Black's Law Dictionary 1043 (8th ed. 2004). This dictionary definition indicates that "state statutes" have adopted a degree structure through which first-degree murder is characterized by conduct that is "willful, deliberate, or premeditated," such as murder "by poisoning or by lying in wait." Id. All other types of murder, that is, those not "aggravated by any of the circumstances of first-degree murder," are generally considered to be second degree, or a lesser degree of murder, which is the type of murder at issue in this case. Id.

The Federal murder statute applicable in the special maritime and territorial jurisdiction, 18 U.S.C. § 1111(a), is substantially the same. As it did in 1988, this statute provides in relevant part:

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate any [of various enumerated offenses]; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.

The concept of "malice aforethought," referenced in both the Federal and dictionary definitions, has been found in the common-law definition of "murder" since at least before the turn of the 16th century....

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