Mark Wajda v. Eric Holder, Jr.

Filing

OPINION filed : The BIA's decision is AFFIRMED and Wajda's petition for review is DENIED, decision not for publication. Julia Smith Gibbons and Helene N. White, Circuit Judges; Avern Cohn, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
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No. 12-3978

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBORAH S. HUNT, Clerk

MARK WAJDA,

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

Jul 23, 2013

PETITION FOR REVIEW OF THE
DECISION OF THE BOARD OF
IMMIGRATION APPEALS

BEFORE: GIBBONS and WHITE, Circuit Judges; and COHN, Senior District Judge.*

AVERN COHN, Senior 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 felony offense 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.

*

The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.

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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 of
the 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
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immigration judge on March 30, 2010, Wajda admitted the allegations of fact in 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
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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 “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 meet his 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

1

Although Wajda pleaded nolo contendre to second-degree murder, under immigration law it is
considered a conviction. The statute defines a conviction as follows:
[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has
been withheld, where—(i) a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a
finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (emphasis added).
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“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

2

The BIA also rejected Wajda’s argument based on the Supreme Court’s decision in Padilla v.
Kentucky, 599 U.S. 356 (2010), explaining that a challenge under Padilla must be brought in the
state courts in an appropriate motion seeking to overturn or vacate the conviction based on
ineffective assistance of counsel. Finally, the BIA agreed that Wajda had not established a claim
under CAT.
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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.

III.

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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 agency order, s/he can file one motion to reconsider and one
motion to reopen the removal proceedings with the agency, see 8 U.S.C. § 1229a(c)(6)–(7), or s/he
can proceed directly to a court of appeals. 8 U.S.C. § 1252(b)(2). This time limitation is enforced
strictly, and courts lack jurisdiction to review a BIA decision when a petitioner fails to seek judicial
review of an order within the applicable time period. See Prekaj v. INS, 384 F.3d 265, 268 (6th Cir.
2004). A motion to reconsider must be filed with the agency “within 30 days of the date of entry of
a final administrative order of removal.” 8 U.S.C. § 1229a(c)(6)(B). Here, Wajda filed a timely
motion for reconsideration. However, he did not file a petition for review of the BIA’s final decision
on removal. The Supreme Court has held that after a final order of removal is entered by the BIA,
pursuing further review within the agency does not toll the time period for seeking judicial review
in the court of appeals under 8 U.S.C. § 1252(b)(1) or divest an agency decision of its finality. Stone
v. INS, 514 U.S. 386, 405–06 (1995); see Mu Ju Li v. Mukasey, 515 F.3d 575, 578 (6th Cir. 2008).
As this court has explained:

a petition for appellate-court review does not toll the time for filing a motion for
reconsideration with the agency. [Randhawa v. Gonzales, 474 F.3d 918, 921 (6th
Cir. 2007)]. Therefore, an alien must observe separate time limitations for
proceedings within the agency and within the judicial system, even if it results in
several petitions for review ultimately pending before the court of appeals.
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Gor v. Holder, 607 F.3d 180, 185 (6th Cir. 2010). Thus, if Wajda wanted to preserve appellate
review of the BIA’s final decision on removal, he needed to file a petition in this court within 30
days. He did not. His failure divests the court of jurisdiction to consider the BIA’s final decision.
Therefore, the only decision which is properly before this court for review is the BIA’s order denying
Wajda’s motion for reconsideration.

Respondent likewise contends that because Wajda’s opening brief presents the arguments
he made before the immigration judge and the BIA initially, and fails to mention or otherwise discuss
his motion for reconsideration, the court should find Wajda has waived all appellate review. We
decline to do so. Rather, we will review the BIA’s order on reconsideration from which Wajda
timely appealed. Our discussion follows.

B.

1.

BIA regulations authorize a motion for reconsideration of a BIA decision and provide that
such a motion “shall state the reasons for the motion by specifying the errors of fact or law in the
prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). The
BIA’s decision to deny a motion for reconsideration is reviewed for abuse of discretion.
Dawood-Haio v. INS, 800 F.2d 90, 95 (6th Cir. 1986). “The BIA abuses its discretion when it acts
arbitrarily, irrationally or contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003)
(citing Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993)). Stated another way, an abuse of discretion
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occurs if the denial “was made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious discrimination against a particular
race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005).

2.

The BIA did not abuse its discretion in denying Wajda’s motion for reconsideration. The
motion alerted the BIA to no legal arguments that had not already been presented in Wajda’s appeal.
This court has found no abuse of discretion where, as here, “a motion to reconsider raised the
identical issues and arguments the BIA previously rejected.” Mulla v. Holder, 462 F. App’x 592,
596 (6th Cir. 2012) (citing Sunarto v. Mukasey, 306 F. App’x. 957, 962 (6th Cir. 2009)). Moreover,
as explained below, the BIA properly rejected Wajda’s arguments on reconsideration.

Wajda’s primary contention is that the BIA erred in failing to follow the Third Circuit’s
decision in Oyebanji, and to a lesser extent, the Supreme Court’s decision in Leocal v. Ashcroft, 543
U.S. 1 (2004). His argument that these decisions control the outcome of his removability lacks
merit. Significantly, both of these decisions involved removability under INA section 101(a)(43)(F)
based on an aggravated felony conviction for a “crime of violence.” These decisions did not involve
removability under INA section 101(a)(43)(A) based on an aggravated felony conviction for
“murder.” Wajda was ordered removed under INA section 101(a)(43)(A), not INA section
101(a)(43)(F). The BIA’s decision on reconsideration fully explains the fundamental flaw in
Wajda’s argument:

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We first reject the respondent’s argument that Oyebanji v. Gonzales, supra,
dictates a finding that his conviction for second-degree murder under Michigan law
is not an aggravated felony. Our decision sustaining the charge of removal
determined that the respondent’s second-degree murder conviction under Michigan
law matched the generic definition of “murder” that prevailed at the time that the
“murder” aggravated felony ground of removal (pursuant to sections 237(a)(2)(A)(iii)
and 101(a)(43)(A) of the Act) was added to the Act in 1988. Matter of M-W-, supra,
at 750-58. Oyebanji v. Gonzales, supra, concerned the question whether a New
Jersey conviction for vehicular homicide was a “crime of violence,” rendering the
alien removable under sections 237(a)(2)(A)(iii) and 101(a)(43)(F) of the Act for a
crime of violence.
Therefore, although the factual circumstances of Oyebanji’s and the
respondent’s convictions appear similar, the operative removal charges at issue in the
two cases are different. The critical question in a “crime of violence” analysis for
purposes of an aggravated felony charge of removal is whether the underlying
conviction involves the use of “physical force” as set forth in 18 U.S.C. § 16. See
section 101(a)(43)(F) of the Act (referencing this section of the United States Code).
Specifically, the Third Circuit in Oyebanji v. Gonzales, supra, was concerned with
whether the New Jersey offense “by its nature involves a substantial risk that physical
force against the person or property of another may be used in the course of
committing the offense.” Oyebanji v. Gonzales, supra, at 263 (noting focus on 18
U.S.C. § 16(b)). On this central question, the court found that because New Jersey’s
vehicular homicide statute could be violated through purely reckless conduct, which
accordingly would lack the intentional use of force, a violation of the New Jersey
statute did not constitute a “crime of violence” type of aggravated felony. Id. at
264-65 (citing Leocal v. Ashcroft, 543 U.S. 1 (2004)).
Our prior decision affirming the Immigration Judge’s order of removal for the
respondent analyzed a different type of aggravated felony-i.e, an aggravated felony
arising under section 101(a)(43)(A) of the Act, covering “murder, rape, and sexual
abuse of a minor.” This ground of removal does not cross-reference 18 U.S.C. § 16,
and, therefore, decisions such as Oyebanji v. Gonzales, supra, and Leocal v. Ashcroft,
supra, do not control the outcome of this case. Because few published decisions
construed section 101(a)(43)(A) of the Act, we conducted a categorical analysis
comparing the respondent's conviction under section 750.317 of the Michigan
Compiled Laws to the “murder” aggravated felony. Matter of M-W-, supra, at
750-55. The respondent’s Michigan conviction was a categorical match for the
aggravated felony of murder because both the state law crime and the generic
definition of murder contemplate the killing of another with, inter alia, a depraved
heart or the extreme indifference to human life. Id. at 756. As we specifically found,
in order for an act to constitute murder, a person need not act with the intent to kill
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another person, Id. at 758.
Furthermore, contrary to the respondent’s contention in support of his motion
to reconsider, the Oyebanji v. Gonzales, supra, decision does not conclude that
because the underlying offense contained “no ‘intent to kill;’ therefore [there was]
no aggravated felony.” Respondent’s Reply Brief at 2. Rather, as previously
explained, the Oyebanji v. Gonzales, supra, decision was concerned with whether the
underlying crime required the intentional use of physical force, consistent with a
“crime of violence” analysis arising under 18 U.S.C. § 16(b).
(AR at p. 3–4, internal footnotes omitted).

Similarly, the alien in Leocal was convicted of driving under the influence of alcohol (“DUI”)
and causing serious bodily injury in an accident in violation of Florida law. The Supreme Court held
that the conviction was not a “crime of violence,” and therefore, was not an “aggravated felony”
warranting deportation under section 101(a)(43)(F). See Leocal, 543 U.S. at 10.

Simply stated, although Wajda believes that his circumstances are akin to the aliens in
Oyebanji and Leocal, he is mistaken. Admittedly, the cases are factually similar to the extent that
he, like the aliens in Oyebanji and Leocal, was removed based on convictions relating to drunk
driving. However, unlike the aliens in Oyebanji and Leocal, Wajda was convicted of second-degree
murder, not simply an alcohol-related offense. Moreover, Wajda was ordered removed under a
completely different section of the INA. Thus, the BIA did not err in concluding initially, and on
reconsideration, that these decisions did not control the outcome of his removal.

Wajda’s argument that the BIA misapplied the “categorical approach” to Michigan’s seconddegree murder statute, must also be rejected. The BIA found, after reviewing Michigan’s definition

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of second-degree murder, that his second-degree murder convictions were a categorical match3 to
the generic definition of murder. Wajda has failed to show that the BIA’s approach was contrary to
law.

Wajda also contends that finding him removable violates “Congressional intent” in that it
allows for disparate treatment of aliens. This argument is again premised on the misunderstanding
that the BIA categorized his convictions as a “crime of violence.” It did not. Rather, the BIA found
him removable based on the aggravated felony of “murder.” To the extent there is any disparity, it
would be between the New Jersey and Florida courts and the Michigan court in their treatment of
the conduct involved and the convictions entered against the defendants before them. Although
Wajda argues that the facts surrounding his conviction call for lesser charges, he cannot change the
fact that he pleaded guilty to second-degree murder. Even if Wajda would have been in a better
situation in terms of removability had he been able to plead to a different, lesser offense related to
his drunk driving, it is not for the immigration courts, or this court on review of a decision from
those courts, to revisit the propriety of the state charges to which he pleaded guilty. See Oyebanji,
418 F.3d at 262 (“In a case where, as here, the petitioner pled guilty, we look only to the fact of

3

Title 18 U.S.C. § 16(a) defines “crime of violence” as “an offense that has as an element the use
. . . of physical force against the person or property of another,” and § 16(b) defines it as “any
other offense that is a felony and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the offense.”
Section 16 requires a court to look to the elements and nature of the offense of conviction in
determining whether a conviction falls within its ambit. In this case, the BIA concluded that
Michigan’s second-degree murder statute incorporated the common law definition of murder,
and therefore, was a match to the generic definition of murder in the INA.
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conviction and the statutory definition of the offense, not the person’s actual conduct.” (citing Taylor
v. United States, 495 U.S. 575, 602 (1990) (other citations omitted)).

Finally, Wajda asks this court to hold his petition in abeyance so as to enable him to petition
the Michigan courts on the basis of Padilla v. Kentucky, 599 U.S. 356 (2010). There is no indication
in the record, however, that he has attempted to seek such relief in the Michigan courts. Moreover,
as Respondent points out, he is not likely to prevail in state court given that the Michigan Court of
Appeals has held that Padilla does not apply retroactively under federal or state law. See People v.
Gomez, 820 N.W. 2d 217, 222 (Mich. Ct. App. 2012). Moreover, the Supreme Court has recently
held that Padilla does not apply retroactively under federal law. Chaidez v. United States, 133 S.
Ct. 1103, 1107 (2013). Thus, we decline to hold Wajda’s petition in abeyance.

IV.

For the reasons stated above, the BIA’s decision is AFFIRMED and Wajda’s petition for
review is DENIED.

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