               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0677n.06

                                          No. 12-3978                                 FILED
                                                                                   Jul 23, 2013
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


MARK WAJDA,                                          )
                                                     )
       Petitioner,                                   )
                                                     )
v.                                                   )
                                                     )    PETITION FOR REVIEW OF THE
ERIC H. HOLDER, JR., Attorney General,               )    DECISION OF THE BOARD OF
                                                     )    IMMIGRATION APPEALS
       Respondent.                                   )


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.
Wajda v. Holder
No. 12-3978

       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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No. 12-3978

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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No. 12-3978

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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No. 12-3978

“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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No. 12-3978

       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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No. 12-3978

                                                  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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Wajda v. Holder
No. 12-3978

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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No. 12-3978

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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No. 12-3978

       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 second-

degree murder statute, must also be rejected. The BIA found, after reviewing Michigan’s definition



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No. 12-3978

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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Wajda v. Holder
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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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