Wajda v. Holder, 12-3978

• Decision Date: 23 July 2013
• Docket Number: No. 12-3978,12-3978
• Parties: MARK WAJDA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

MARK WAJDA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

No. 12-3978

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Decided and Filed: July 23, 2013^*

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0222p.06

On Petition for Review of a Decision

of the Board of Immigration Appeals.

No. A024 642 900.

Before: GIBBONS and WHITE, Circuit Judges; COHN, District Judge.^**

COUNSEL

ON BRIEF: George E. Ward, Canton, Michigan, for Petitioner. Erica B. Miles, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

OPINION

AVERN COHN, District Judge. This is an immigration case. Mark Wajda ("Wajda") petitions for review of a decision of the Board of Immigration Appeals ("BIA") that denied reconsideration of a final order of removal. The BIA ordered Wajda removed because it determined that his conviction of two counts of second-degree murder (resulting from a drunk driving offense) constituted the aggravated felonyoffense of "murder" under immigration law. For the reasons that follow, we affirm the BIA's decision and deny Wajda's petition for review.

I.

A.

Wajda is a native and citizen of Poland. In July of 1982, at the age of 24, he was admitted to the United States as a refugee. He adjusted his status to permanent resident in August of 1983. In 2002, Wajda was involved in a drunk driving incident in which an elderly couple died. Wajda rear-ended the victims' car on his way to work in the early morning hours. He had no prior criminal history. Wajda was originally charged in state court with two counts of second-degree murder and two counts of Operating Under the Influence of Liquor ("OUIL") Causing Death. Wajda says that the prosecutor offered to have Wajda plead guilty to the OUIL charges with a recommended sentence of probation. However, no plea agreement was ever consummated and another prosecutor took over the case. Meanwhile, Wajda's retained counsel withdrew and Wadja was given a court-appointed attorney. On April 11, 2003, Wajda pleaded nolo contendre to two counts of second-degree murder, in violation of Mich. Comp. Laws § 750.317 and the prosecutor dropped the OUIL Causing Death charges. Wajda was sentenced to eight to twenty years' imprisonment.

In 2008, the Department of Homeland Security ("DHS") commenced removal proceedings against Wajda. The Notice to Appear ("NTA") charged Wajda as subject to removal on two counts under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii): (1) as an alien convicted of a "crime of violence" aggravated felony, defined under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F); and (2) as an alien convicted ofthe aggravated felony offense of "murder," defined under section 101(a)(43)(A) of the INA, 8 U.S.C. § 1101(a)(43)(A).

Wajda appeared pro se during his removal proceedings. At a preliminary hearing before the immigration judge on March 30, 2010, Wajda admitted the allegations of factin the NTA, i.e., that he was convicted in April of 2003 of two counts of murder in the second-degree. DHS submitted proof of these convictions, which the immigration judge admitted into evidence. The immigration judge sustained both charges of removability.

Wajda applied for deferral of removal to Poland under the regulations implementing the United States' obligations under the Convention Against Torture ("CAT"). The immigration judge held a hearing on Wajda's CAT application on November 23, 2010. At the hearing, Wajda testified that he feared returning to Poland after being gone 30 years and because he would be interrogated and harassed by Polish authorities because of his involvement in "information sharing" with students when he worked at Polytechnic University in Warsaw. He also testified that his father still resides in Poland. Additionally, Wajda testified that he did not believe Poland was a democracy and that he believed he and his wife would have problems in Poland. Finally, although Wajda admitted to visiting his father in Poland for three days in 1998 without incident, he explained that it would be different if he and his wife had to remain there.

Two other witnesses testified at the CAT hearing. Wajda's wife testified that his convictions were the result of an accident and that Wajda feared returning to Poland because the Communists are waiting to take over. She also testified that he was afraid to go to Poland because of Wajda's prior dealings with the Russians and Communists relating to oil. Father James O'Reilly also testified on Wajda's behalf regarding his understanding of the circumstances surrounding Wajda's conviction. At the conclusion of the CAT hearing, the immigration judge accepted the 2009 U.S. Department of State Country Report on Human Rights Practices in Poland into evidence.

On November 23, 2010, the immigration judge issued a decision, concluding that Wajda is removable both as an alien convicted of "murder" under INA section 101(a)(43)(A) and as an alien convicted of "a crime of violence" under INA section 101(a)(43)(F). The immigration judge reasoned that second-degree murder under Michigan law sufficiently matched the elements of murder under the INA. Further, the immigration judge found that second-degree murder qualified as a crime of violence. The immigration judge also denied Wadja's CAT application, finding he failed to meethis burden of demonstrating that he more likely than not would be tortured if he returned to Poland.

B.

1.

Wajda subsequently retained counsel and appealed the immigration judge's decision to the BIA. On April 9, 2012, the BIA issued a final decision affirming the immigration judge and finding that Wajda's conviction¹ for second-degree murder constitutes the aggravated felony offense of "murder," as defined under section 101(a)(43)(A) of the INA, 8 U.S.C. § 1101(a)(43)(A). Matter of M-W-, 25 I&N Dec. 748 (BIA 2012). The BIA expressly declined to consider whether Wajda was also removable as an aggravated felon for committing a "crime of violence" under section 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(A).² The BIA held that Wajda was therefore ineligible for asylum or withholding of removal under the Act. Id. at 760.

The BIA first explained the common law and federal definitions of murder, as well as Michigan's second-degree murder statute and jurisprudence. The BIA noted that establishing malice under Michigan law does not require the showing of a specific intent to kill, but also includes the intent to perform an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. In rejecting Wajda's appeal, the BIA explained:

We conclude that under Michigan law, the respondent was found to have killed another human being with malice aforethought, matching the generic elements of the crime of murder. Whether or not he was voluntarily intoxicated at the time has no bearing on the fact that he was determined through a judgment of guilt to have acted in wanton and willful disregard of the likelihood that the natural tendency of his actions was to cause death or great bodily harm. We are therefore unpersuaded by the respondent's argument that we should not consider his convictions to fall under section 101(a)(43)(A) of the Act because in Michigan, a prosecutor need not establish that a defendant had an "intent to kill." While this is true, the operative mens rea in both the generic definition of murder and under Michigan law is substantially the same--malice aforethought or a minimum of extreme recklessness as to the serious risk or natural consequence of death or serious bodily injury as a result of the defendant's actions.

Moreover, in both the generic definition and under Michigan law, malice can be shown by proving a reckless and wanton disregard for human life or the intent to do great bodily harm. The Michigan Supreme Court has long recognized that "if a mortal blow was malicious, although not given with intent to kill, or if death ensued from an act accompanying an unlawful collateral act, or under circumstances which showed general malice, such as a reckless disregard of the safety or lives of others, the killing would be murder." People v. Potter, 5 Mich. at 4 (explaining that the purpose behind enactment of the statute specifying degrees of murder was to "separate," for purposes of punishment, first-degree murder offenses); accord People v. Garcia, 247 N.W.2d 547 (Mich. 1976), abrogated on other grounds, Strickland v. Washington, 466 U.S. 668 (1984) (regarding ineffective assistance of counsel). While the intent to kill is an element of first-degree premeditated murder in Michigan, it is not an element of the offense of second-degree murder, of which the respondent was convicted. People v. Garcia, 247 N.W.2d at 550 (stating that "first degree murder. . , requir[es] an intention to take life"). Even absent a requirement that a prosecutor must prove an intent to kill, a conviction for second-degree murder under section 750.317 of the Michigan statutes is nonetheless categorically one for "murder" as defined in section 101(a)(43)(A) of the Act, because it conforms to the generic definition of that term.

Matter of M-W-, 25 I&N Dec. 748, 758-59 (BIA 2012).

2.

On April 25, 2012, Wajda moved for the BIA to reconsider its decision. In his motion, Wajda primarily argued that the BIA failed to consider an "identical" decision from the Court of Appeals for the Third Circuit in Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005). On July 17, 2012, the same three-member panel of the BIA denied the motion to reconsider.

II.

A.

As an initial matter, Respondent contends that to the extent Wajda is challenging the BIA's final decision on removal, the panel should find that it lacks jurisdiction to do so. We agree. The BIA affirmed the immigration judge's final order of removal on April 9, 2012. Generally, once an alien is found to be removable in a final...