Mark Wajda v. Eric Holder, Jr.
2013 U.S. App. LEXIS 15240
| 6th Cir. | 2013Background
- Mark Wajda, a Polish national and lawful permanent resident since 1983, pleaded nolo contendere in Michigan state court (2003) to two counts of second-degree murder arising from a 2002 drunk-driving crash that killed an elderly couple; sentenced to 8–20 years.
- In 2008 DHS initiated removal proceedings charging Wajda as removable under INA § 237(a)(2)(A)(iii) as an aggravated felon for "murder" (INA § 101(a)(43)(A)) and alternatively as a "crime of violence" (INA § 101(a)(43)(F)).
- Wajda admitted the factual allegations and the immigration judge sustained removability on both grounds, denied his CAT claim, and the BIA affirmed in Matter of M-W- (25 I&N Dec. 748), holding Michigan second-degree murder categorically matches the INA "murder" aggravated felony.
- Wajda moved for BIA reconsideration arguing the BIA should follow Third Circuit precedent (Oyebanji) and Supreme Court authority (Leocal) addressing DUI/vehicular-homicide-type offenses; the BIA denied reconsideration and Wajda timely appealed that denial.
- The Sixth Circuit held it lacked jurisdiction to review the BIA’s underlying final removal order (Wajda did not timely petition for review of the final order) and therefore reviewed only the BIA’s denial of reconsideration for abuse of discretion.
Issues
| Issue | Wajda's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Michigan second-degree murder conviction is an aggravated-felony "murder" under INA § 101(a)(43)(A) | Wajda argued comparable DUI/manslaughter precedents (Oyebanji, Leocal) should control and his conviction should not categorically be "murder" because Michigan does not require specific intent to kill | BIA/Government argued state second-degree murder (malice/wanton/reckless disregard) matches the generic federal definition of "murder" and those precedents concerned §101(a)(43)(F) "crime of violence," not §101(a)(43)(A) "murder" | Denied: BIA did not err; Michigan second-degree murder categorically matches INA "murder." |
| Whether Oyebanji and Leocal control outcome | Wajda contended those cases (vehicular homicide / DUI) show similar convictions are not aggravated felonies | Government/BIA: Oyebanji and Leocal addressed §101(a)(43)(F) (crime of violence) and 18 U.S.C. §16, not the distinct §101(a)(43)(A) murder provision | Denied: Those cases do not control because they concern a different aggravated-felony ground. |
| Whether BIA abused discretion in denying reconsideration | Wajda claimed BIA ignored controlling Third Circuit precedent and misapplied the categorical approach | Government: BIA reasonably rejected identical arguments already addressed; categorical analysis was properly applied | Denied: No abuse of discretion; motion to reconsider raised previously rejected issues. |
| Whether court may stay petition for Wajda to seek Padilla relief in state court | Wajda sought abeyance to pursue Padilla-based challenge to his plea | Government: No state attempt shown; Michigan precedent treats Padilla as nonretroactive; Chaidez confirms Padilla not retroactive federally | Denied: Court declines abeyance; Padilla relief unlikely and not shown pursued. |
Key Cases Cited
- Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) (vehicular-homicide/DUI conviction did not categorically qualify as a "crime of violence" under §101(a)(43)(F) because statute could be violated by purely reckless conduct)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (DUI-causing-serious-injury conviction is not a "crime of violence" under 18 U.S.C. §16 because it does not require the use of force)
- Stone v. INS, 514 U.S. 386 (1995) (pursuing administrative relief does not toll or deprive finality of a BIA order for purposes of judicial-review deadlines)
- Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla rule regarding counsel’s advice on immigration consequences does not apply retroactively to finalized convictions)