                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0222p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                               X
                                                -
 MARK WAJDA,
                                                -
                                           Petitioner,
                                                -
                                                -
                                                    No. 12-3978
           v.
                                                ,
                                                 >
                                                -
                                 Respondent. -
 ERIC H. HOLDER, JR., Attorney General,
                                               N
                      On Petition for Review of a Decision
                      of the Board of Immigration Appeals.
                               No. A024 642 900.
                              Decided and Filed: July 23, 2013*
       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 felony


        *
          This decision was originally issued as an “unpublished decision” filed on July 23, 2013. The
court has now designated the opinion as one recommended for full-text publication.
        **
          The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                  1
No. 12-3978         Wajda v. Holder                                               Page 2


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.

       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 immigration judge on March 30, 2010, Wajda admitted the allegations of fact
No. 12-3978        Wajda v. Holder                                                Page 3


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 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 meet
No. 12-3978            Wajda v. Holder                                                               Page 4


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 “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:




         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).
         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.
No. 12-3978       Wajda v. Holder                                                    Page 5


              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).
No. 12-3978        Wajda v. Holder                                                  Page 6


                                            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 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
No. 12-3978        Wajda v. Holder                                                  Page 7


       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.

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
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).
No. 12-3978        Wajda v. Holder                                                 Page 8


                                           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:

               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
No. 12-3978        Wajda v. Holder                                                   Page 9


       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 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).
No. 12-3978             Wajda v. Holder                                                               Page 10


         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 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


         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.
No. 12-3978         Wajda v. Holder                                                Page 11


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 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.

                                            III.

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