M-W-, 25 I&N Dec. 748 (BIA 2012)

Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
Matter of M-W-, Respondent
Decided April 9, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Pursuant to the categorical approach, a conviction for the aggravated felony of murder,
as defined in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(A) (2006), includes a conviction for murder in violation of a statute
requiring a showing that the perpetrator acted with extreme recklessness or a malignant
heart, notwithstanding that the requisite mental state may have resulted from voluntary
intoxication and that no intent to kill was established.
FOR RESPONDENT: George E. Ward, Esquire, Canton, Michigan
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated November 23, 2010, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted
of an aggravated felony, determined that he was not eligible for any relief from
removal, and ordered him removed from the United States. The respondent
has appealed from that decision. The principal issue in this case is whether the
respondent was properly found removable as having been convicted of the
aggravated felony of murder under section 101(a)(43)(A) of the Act, 8 U.S.C.
§ 1101(a)(43)(A) (2006). To answer this question we must define, at least
partially, the scope of the “murder” aggravated felony, in particular where the
State statute allows a conviction under some circumstances that do not
involve an intent to kill. We conclude that the respondent was convicted
of an aggravated felony and will dismiss his appeal.
The respondent is a native and citizen of Poland who was admitted to the
United States on July 20, 1982, as a refugee and adjusted his status to thatCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
1 Both parties make arguments about the extent to which the respondent’s blood alcohol
level was over the legal limit, but we find it unnecessary to address these arguments
in detail. We note that the information reflects that the respondent was also charged under
section 257.625(4) of the Michigan Compiled Laws, which punishes homicides that are
caused by persons driving under the influence of alcohol. Such statutes are commonly
employed by States to cover traffic accidents related to “drunk driving.” But a more serious
charge may also be levied, up to and including second-degree murder. See Delgado
v. Holder, 648 F.3d 1095, 1113 n.11 (9th Cir. 2011) (Reinhardt, J., concurring in part)
(citing People v. Watson, 637 P.2d 279, 286 (Cal. 1981) (rejecting the argument that
a vehicular homicide statute preempted a general murder statute, and finding that evidence
that the defendant was legally intoxicated, drove at excessive speeds, ran a red light, and
struck and killed an occupant in another vehicle was sufficient to show that he acted
“wantonly and with a conscious disregard for human life”)). We have no authority
to go behind a conviction with regard to its validity under State law or to assess whether the
facts met the State’s discretionary criteria for pursuing murder charges, rather than some
lesser charge, such as manslaughter.
of a lawful permanent resident on August 2, 1983. The respondent was
convicted in 2003 based on a no contest plea to two charges of second-degree
murder under section 750.317 of the Michigan Compiled Laws. The two
counts, which contain identical language except for the names of the victims,
charged the respondent with killing an elderly couple. Specifically, the
amended information charged that the respondent acted “with intent to kill,
to do great bodily harm, or to act in wanton and willful disregard of the
likelihood that the natural tendency of said act would cause death or great
bodily harm.”
The offense appears to have resulted from an early morning traffic incident
in which the respondent rear-ended a car, killing the occupants on impact.
Other counts to lesser offenses in the information indicate that the respondent
was driving under the influence of alcohol.1 Before the Immigration Judge
and on appeal, the respondent explained that he pled no contest to the
second-degree murder charges in exchange for a reduced sentence. Guilty
judgments on two counts of second-degree murder were entered against him
on March 18, 2003, and on April 11, 2003, he was sentenced to imprisonment
for a period of 8 to 20 years.
The respondent was charged under section 237(a)(2)(A)(iii) of the Act
as an alien convicted of an aggravated felony, specifically those defined
at section 101(a)(43)(A) as “murder, rape, and sexual abuse of a minor” and
at section 101(a)(43)(F) as a “crime of violence.” The Immigration Judge
found that the respondent’s convictions satisfied both aggravated felony
definitions. For the reasons that follow, we agree with the determination
that a second-degree murder conviction under Michigan law constitutes
an aggravated felony conviction under section 101(a)(43)(A) of the ActCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
Pursuant to our request, the respondent and the DHS each submitted a supplemental brief
addressing the proper approach to be taken in construing the meaning of the term “murder”
as used in section 101(a)(43)(A), and the effect, if any, of evidence of voluntary intoxication
on a defendant’s mens rea.
3 Killings committed in the course of or in flight from certain felonies are considered
“murder” by statute and under the common law in the majority of United States
jurisdictions. See Tom Stacy, Changing Paradigms in the Law of Homicide, 62 Ohio St.
L.J. 1007, 1012 n.20 (2001); see also Enmund v. Florida, 458 U.S. 782 (1982). Although
we have no cause to address this rule, we acknowledge that it is not without controversy.
because it is, categorically, a conviction for “murder.” Since we find that the
respondent is removable as an alien who has been convicted of an aggravated
felony under section 101(a)(43)(A), we need not consider whether the
conviction is also for a crime of violence within the meaning of section
Michigan, like many other States and the Federal Government, defines
murder in two degrees. Section 750.316 of the Michigan Compiled Statutes
defines murder in the first degree, in relevant part, as consisting of three types:
(1) murder perpetrated by means of poison, lying in wait, or any other willful,
deliberate, and premeditated killing; (2) murder committed in the perpetration
of, or attempt to perpetrate, various enumerated offenses; and (3) murder
of a peace officer or corrections officer who was engaged in the performance
of his or her duties.
Second-degree murder is defined by section 750.317 of the Michigan
Compiled Laws as encompassing “[a]ll other kinds of murder.” See also
18 U.S.C. § 1111(a) (2006). The respondent and the Department of Homeland
Security (“DHS”) agree that in this case the murder was not premeditated
or intentional,2
and we observe that the doctrine of felony murder is also not
applicable in this case.3 Accordingly, we address only whether a certain type
of murder conviction, not being of the felony-murder variety and requiring
no intent to kill, satisfies the definition of murder for purposes of the
aggravated felony definition at section 101(a)(43)(A) of the Act.
1. Analytical Framework
When the Act was amended in 1988 to introduce the term “aggravated
felony,” murder was among the first crimes to be listed under the newlyCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
4 Other aggravated felony provisions expressly refer to offenses “described in” certain
enumerated Federal statutes. See, e.g., sections 101(a)(43)(E), (H), (I), (J), (L), (M)(ii), (N),
(O), (P) of the Act.
created deportable offense covering aliens convicted of an aggravated felony.
See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat.
4181, 4469-70 (“ADAA”); Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir.
2000); Matter of A-A-, 20 I&N Dec. 492, 495 (BIA 1992). However, the term
“murder” has been in the Act since1952 as a bar to good moral character. See
Immigration and Nationality Act, Pub. L. No. 82-414, § 101(f)(8), 66 Stat.
163, 172 (1952) (codified at 8 U.S.C. § 1101(f)(8) (1958)); see also Taylor
v. United States, 231 F.2d 856 (5th Cir. 1956). We are aware of no cases
or legislative sources explaining the intended scope of the term “murder”
in these statutes. As regards the ADAA, it was introduced and passed by both
the House of Representatives and the Senate between September and
November 1988. During that period, the relevant legislative history does not
reflect that the inclusion of “murder” as an aggravated felony in the Act was
the subject of any amendment, and there was no extensive reporting
or discussion of the term.
As the Immigration Judge noted, very little precedent construes the term
“murder” in the aggravated felony definition at section 101(a)(43)(A) of the
Act. Murder is a “generic” offense. See Nijhawan v. Holder, 129 S. Ct. 2294,
2298-2300 (2009) (noting that the term “aggravated felony,” as used in the
Act, may refer to so-called “generic” offenses subject to categorical
definition or to “circumstance-specific” crimes that refer to the “specific way
in which an offender committed the crime on a specific occasion”). Unlike
other offenses that have been the subject of analysis by the Federal courts,
murder has not diverged significantly from its common-law roots. Cf. Taylor
v. United States, 495 U.S. 575, 593 (1990) (ascertaining the elements of the
aggravated felony of burglary, which is likewise of common-law origin).
Therefore, while we acknowledge the applicability of the type of analysis
contemplated by the Supreme Court in Taylor, our task is somewhat simpler,
given the existence of (1) a common-law definition of “murder” that remained
stable until the adoption of the Model Penal Code, and (2) a Federal statute
defining murder, namely, 18 U.S.C. § 1111(a). Although this Federal statute
is a significant point of reference in defining the murder aggravated felony,
it is not dispositive to our discussion since section 101(a)(43)(A) of the Act
does not refer to it.4
In invoking the Taylor methodology—examining,
inter alia, common-law and State law to identify the “uniform, categorical
definition[]” of an offense—our touchstone is the definition of the crimeCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
5 We have nevertheless stated that in formulating the “generic” definition of a term
appearing in the Act’s list of “aggravated felonies,” we should rely to a significant degree
on the Federal definition of an offense, where available, because “removal proceedings are
a function of Federal law.” Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 994-95
(BIA 1999). We also note that Congress is presumed to have been familiar with the Federal
definition of murder when it enacted the ADAA. See Dixon v. United States, 548 U.S. 1,
2 (2006) (assuming that, when passing a statute, “Congress was familiar with the
long-established common-law rule”); Matter of Velazquez-Herrera, 24 I&N Dec. 503,
509-10, 515 (BIA 2008) (citing Gozlon-Peretz v. United States, 498 U.S. 395, 407-08 (1991)
(stating that the undefined term “supervised release” used in the 1986 amendments should
be defined with reference to the well-established meaning of that term set forth in earlier
statutes bearing on similar subject matter)).
of “murder” that Congress had in mind when it added that offense to the Act
as an aggravated felony in 1988.5 Taylor v. United States, 495 U.S. at 581-82,
587-77, 590.
2. Common-law and Federal Definitions of “Murder”—Malice
“Murder” is defined as the “killing of a human being with malice
aforethought.” Black’s Law Dictionary 1043 (8th ed. 2004). This dictionary
definition indicates that “state statutes” have adopted a degree structure
through which first-degree murder is characterized by conduct that is “willful,
deliberate, or premeditated,” such as murder “by poisoning or by lying
in wait.” Id. All other types of murder, that is, those not “aggravated by any
of the circumstances of first-degree murder,” are generally considered
to be second degree, or a lesser degree of murder, which is the type of murder
at issue in this case. Id.
The Federal murder statute applicable in the special maritime and territorial
jurisdiction, 18 U.S.C. § 1111(a), is substantially the same. As it did in 1988,
this statute provides in relevant part:
Murder is the unlawful killing of a human being with malice aforethought. Every
murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the perpetration of, or attempt
to perpetrate any [of various enumerated offenses]; or perpetrated from
a premeditated design unlawfully and maliciously to effect the death of any human
being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
The concept of “malice aforethought,” referenced in both the Federal
and dictionary definitions, has been found in the common-law definition
of “murder” since at least before the turn of the 16th century. Mullaney
v. Wilbur, 421 U.S. 684, 692-93 & nn.13, 15 (1975) (distinguishing homicidesCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
6 The presence of malice indicated the absence of justification for the homicide in the
form of “heat of passion” or “sudden provocation.” Patterson v. New York, 432 U.S. 197,
213 (1977).
committed without “‘malice’ prepensed” as being “manslaughter,” which
generally arises out of “sudden provocation”). “Malice aforethought was
designated as the element that distinguished” murder from manslaughter, and
it is integral to both first- and second-degree murder.6
Id. at 693, 694-96
& n.17; see also Davis v. United States, 160 U.S. 469, 484-86 (1895),
superseded by statute on other grounds, Insanity Defense Reform Act
of 1984, Pub. L. No. 98-473, tit. II, § 402(a), 98 Stat. 1837, 2057; Ornelas
v. United States, 236 F.2d 392, 394 (9th Cir. 1956) (construing 18 U.S.C.
§ 1111(a)). Integral to the concept of “malice” at common law was that the
defendant “intended to take life,” or that he had “a wicked, depraved, and
malignant heart.” Davis v. United States, 160 U.S. at 485. The concept was
also understood at common law to encompass the situation where the
defendant intended “to inflict great bodily harm.” Mullaney v. Wilbur,
421 U.S. at 694.
“Malice aforethought” under the Federal murder statute also includes
not only the intent to kill but also an intent to do serious bodily injury
or an extreme recklessness and wanton disregard for human life
(“depraved heart”). United States v. Lemus-Gonzalez, 563 F.3d 88, 92 (5th
Cir. 2009); United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003);
United States v. Velazquez, 246 F.3d 204, 214-15 (2d Cir. 2001) (collecting
cases finding that intent to do serious bodily harm or extreme reckless
disregard for human life can suffice to show malice). “Malice” can be shown
through direct or circumstantial evidence and can be inferred by the jury from
evidence of the nature of the victim’s injuries or other circumstances of the
crime, such as the choice of weapon. United States v. Vallo, 238 F.3d 1242,
1247 (10th Cir. 2001) (second-degree murder prosecution); United States
v. Free, 841 F.2d 321, 325 (9th Cir. 1988) (first-degree murder prosecution).
Contrary to the respondent’s suggestion on appeal, it is clear that
at common law and under the Federal murder statute, a murder conviction
need not be limited to situations where the defendant acted with the “intent
to kill.” This is also true under most, if not all, modern approaches to the term.
In fact, the United States Supreme Court has recognized that from a moral
standpoint, those acting with an “intent to kill” are not necessarily “the most
culpable” murderers. Tison v. Arizona, 481 U.S. 137, 157 (1987) (stating that
“reckless indifference to the value of human life may be every bit as shocking
to the moral sense as an ‘intent to kill’”).Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
7 Examples of States that, in 1988, adhered to an essentially common-law, malice-based
definition of murder consistent with the Federal statute are Arizona, California, the District
of Columbia, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Nevada,
New Jersey, North Carolina, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont,
Virginia, and West Virginia. See, e.g., State v. Walton, 650 P.2d 1264, 1272-73 (Ariz. Ct.
App. 1982) (intentionally causing death, knowingly acting to cause great bodily injury
resulting in death, or engaging in reckless conduct showing extreme indifference to human
life); People v. Murray, 275 Cal. Rptr. 498 (Cal. Ct. App. 1990); Comber v. United States,
584 A.2d 26 (D.C. 1990); State v. Smith, 242 N.W.2d 320 (Iowa 1976); State v. McCown,
957 P.2d 401 (Kan. 1998); Gladden v. State, 330 A.2d 176 (Md. 1974); Commonwealth
v. Sowell, 494 N.E.2d 1359 (Mass. App. Ct. 1986); State v. Thomas, 769 N.W.2d 357, 364
(Neb. 2009) (discussing developments in Nebraska law regarding malice dating back
to 1979); Keys v. State, 766 P.2d 270 (Nev. 1988); State v. List, 636 A.2d 1103 (N.J. Super.
Ct. Law Div. 1990); State v. Wilkerson, 247 S.E.2d 905 (N.C. 1978); Commonwealth
v. Prosdocimo, 578 A.2d 1273 (Pa. 1990); State v. Iovino, 554 A.2d 1037 (R.I. 1989); State
v. Cravens, 764 S.W.2d 754 (Tenn. 1989); State v. Standiford, 769 P.2d 254 (Utah 1988)
3. Reckless Conduct Constituting Murder
A “depraved heart” murder under Federal law is proven by conduct
exhibiting more than gross negligence or ordinary recklessness. United States
v. Browner, 889 F.2d 549, 553 (5th Cir. 1989) (explaining that “gross”
or “criminal” negligence was far more serious than ordinary negligence, but
“still falls short of that most extreme recklessness and wantonness required for
‘depraved heart’ malice”). The standard has been explained as “reckless and
wanton conduct . . . which grossly deviated from a reasonable standard
of care such that [the defendant] was aware of the serious risk of death.”
United States v. Livoti, 22 F. Supp. 2d 235, 243 (S.D.N.Y. 1998) (emphasis
omitted). A person convicted of depraved heart murder under Federal law
disregards a “‘very high degree’ of risk that death or serious bodily injury will
result from the defendant’s conduct.” Id. at 245.
Since the Federal statute is essentially an adoption of the common law, this
was true at common law as well. See United States v. Browner, 889 F.2d
at 551; see also Davis v. United States, 160 U.S. at 484-86. Depraved heart
killings or murders marked by extremely reckless conduct were precipitated
by acts that carried a high likelihood of death or serious bodily injury, but were
not aimed at anyone in particular. Darry v. People, 10 N.Y. 120 (N.Y. 1854)
(discussing “depraved mind” murder prior to statutory amendment). The
classic example of a depraved heart murder is the indiscriminate shooting into
a crowd or an occupied building. See Bethea v. Scully, 834 F.2d 257, 260 (2d
Cir. 1987) (noting that shooting into a crowd is the “archetype of reckless
murder”); see also Tucker v. United States, 151 U.S. 164 (1894).7Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
(intentionally or knowingly causing death, intentionally causing great bodily injury,
depraved indifference); Thomas v. Commonwealth, 41 S.E.2d 476 (Va. 1947); State
v. Starkey, 244 S.E.2d 219 (W. Va. 1978), overruled on other grounds by State v. Guthrie,
461 S.E.2d 163 (W. Va. 1995).
8 Examples of States that, as of 1988, adopted the above Model Penal Code definitions
to a significant degree are Florida, New Hampshire, New York, South Dakota, Washington,
and Wisconsin. See Hooker v. State, 497 So.2d 982 (Fla. Dist. Ct. App. 1986); State
v. Dufield, 549 A.2d 1205 (N.H. 1988); State v. Lyerla, 424 N.W.2d 908 (S.D. 1988); State
v. Dunbar, 817 P.2d 1360 (Wash. 1991); State v. Spears, 433 N.W.2d 595 (Wis. Ct. App.
9 The drafters of the Model Penal Code elected not to include “intent to cause
grievous bodily harm” in their description of the mens rea for murder. See State v. Russell,
733 P.2d 162, 173 (Utah 1987) (Stewart, J., concurring) (citing Model Penal Code § 210.2
cmt. 5 at 28-29 (1980)).
We note that the use of the term “malice” has, at times, engendered
confusion. See State v. Thomas, 769 N.W.2d 357, 364 (Neb. 2009) (discussing
the fact that in 1979 the Nebraska legislature eliminated the requirement that
a prosecutor must prove malice in a murder prosecution, but that courts
continued to read this requirement into the law until 1998); see also People
v. Aaron, 299 N.W.2d 304, 319 (Mich. 1980) (acknowledging confusion
created by use of the term “malice aforethought”); State v. Standiford, 769
P.2d 254, 258 n.1 (Utah 1988) (noting Model Penal Code commentary
on malice). Thus, although it does not alter our analysis, it is relevant
to mention that the Model Penal Code, which has heavily influenced State
legislatures over the last several decades, de-emphasizes reliance on the
term “malice.” See Model Penal Code § 210.2 cmt. 1 (1980) (discussing
offense-specific definitions in Part II of the Model Penal Code in 1980).
The Model Penal Code defines “murder” as a class of criminal homicide
that is committed either (1) purposely or knowingly, or (2) recklessly under
circumstances manifesting extreme indifference to the value of human life.8
Model Penal Code § 210.2(1). The creation of the “reckless/extreme
indifference” definition was viewed by the Model Penal Code drafters
as providing needed clarification to the term “depraved heart.” See O’Brien
v. State, 45 P.3d 225, 231-32 (Wyo. 2002) (citing Model Penal Code
§ 210.2(1)(b) cmt. 4).9 The degree of recklessness sufficient to support
a murder conviction under the Model Penal Code was extreme recklessness
beyond the “ordinary recklessness” that would support a manslaughter
conviction and was all but indistinguishable from homicides that are
committed purposefully or knowingly. Id.Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
10 Several States have stand-alone statutes barring consideration of voluntary intoxication
in the determination of mens rea. See Montana v. Egelhoff, 518 U.S. 37, 48-49 (1996).
11 See infra note 13.
4. Defense of Intoxication Negating Mens Rea
While the mens rea standard for murder under the common law and Federal
law would encompass extremely reckless behavior, generally courts have not
endorsed the position advanced bymanydefendants convicted of murder in the
course of driving under the influence, namely, that they were too intoxicated
to form the requisite mens rea of recklessness. See United States v. Fleming,
739 F.2d 945, 948 (4th Cir. 1984); Kane v. United States, 399 F.2d 730, 736
(9th Cir. 1968) (convicting of manslaughter despite intoxication). The Model
Penal Code also has addressed the viability of a line of defense using evidence
of voluntary intoxication to negate the formation of a reckless state of mind
and has rejected it. The Code provides that “[w]hen recklessness establishes
an element of the offense, if the actor, due to self-induced intoxication,
is unaware of a risk of which he would have been aware had he been sober,
such awareness is immaterial.” See Model Penal Code § 2.08(2).10
The unavailability of the argument that intoxication prevented the
formation of a malicious state of mind has been criticized by some
commentators. See, e.g., Katherine M. White, Note, Drunk Driving
as Second-Degree Murder in Michigan, 41 Wayne L. Rev. 1433 (1995).
However, in many jurisdictions, including Michigan,11 the criticism has been
to no avail. See 2 Wayne R. LaFave, Substantive Criminal Law § 9.5(c)
(2d ed. 2003).
5. Definition of Murder Applicable to Unintentional Killings
Therefore on the basic question whether extremely reckless conduct can
support a murder conviction under a generic definition, we note the
fundamental consistency of the common law, Federal, and Model Penal Code
approaches set forth above. That is, “depraved mind murder,” which has been
described as “outrageously reckless conduct” committed with “wantonness
or total indifference for the value of human life” is substantially similar
to murders marked by “extreme indifference to the value of human life.”
State v. Reed, 120 P.3d 447, 454-55 (N.M. 2005). Furthermore, evidence
of voluntary intoxication does not prevent a conclusion that the defendant had
the capacity to act with a depraved heart or extreme indifference to human life.Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
12 Nothing in the Michigan legislative history indicates that its definition of murder has
substantially changed since 1988. In fact, the definition appears to have remained fairly
constant over at least the last 150 years. See People v. Potter, 5 Mich. at 4 (“Murder
is where a person of sound memory and discretion unlawfully kills any reasonable creature
in being, in the peace of the state, with malice prepense or aforethought, either express
or implied.”). Jury instructions were amended in or about 1983, however, to de-emphasize
use of the word “malice” and to use instead the statutory mens rea terms: intent to kill,
to cause great bodily harm, or to do 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. People
v. Woods, 331 N.W.2d 707, 727 (Mich. 1983).
6. Michigan Statute and Jurisprudence on Murder
Although the Michigan murder statutes do not contain the term “malice
aforethought,” applicable precedent has long dictated that every murder
conviction under either section 750.316 or 750.317 of the Michigan Compiled
Laws includes, as an element, proof that the defendant acted with “malice
aforethought.” People v. Brown, 358 N.W.2d 592, 597 (Mich. Ct. App. 1984)
(citing People v. Aaron, 299 N.W.2d 304 (Mich. 1980); People v. Potter,
5 Mich. 1 (1858)). Malice aforethought is as much an element of second-degree
murder in Michigan as it is an element of first-degree murder. People v. Roper,
777 N.W.2d 483, 490 (Mich. Ct. App. 2009).12
Under Michigan law, malice is defined as “the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and wilful
disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm.” Id. at 490 (quoting People v. Goecke,
579 N.W.2d 868, 878 (Mich. 1998)) (internal quotation marks omitted).
“The offense of second-degree murder does not require an actual intent
to harm or kill, but only the intent to do an act that is in obvious disregard
of life-endangering consequences.” Id. (quoting People v. Mayhew, 600
N.W.2d 370, 379 (Mich. Ct. App. 1999)) (internal quotation marks omitted).
Proof of malice can be obtained through circumstantial evidence, as well
as by direct evidence. People v. Goecke, 579 N.W.2d at 880; see also Dillard
v. Prelesnik, 156 F. Supp. 2d 798, 805-06 (E.D. Mich. 2001). The Michigan
Supreme Court has recognized that malice can be implied from the
circumstances of a crime, stating that if the circumstances “demonstrate
an abandoned and malignant heart, [t]his simply means that malice may
be implied when the defendant does an act with a high probability that it will
result in death and does it with a base antisocial motive and with wanton
disregard for human life.” People v. Goecke, 579 N.W.2d at 880 (quoting
People v. Fuller, 150 Cal. Rptr. 515, 521 (Cal. Ct. App. 1978)) (internal
quotation mark omitted).Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
13 The Michigan Supreme Court noted that this was true regardless of whether it treated the
wanton and willful disregard standard as an objective one (as the prosecution urged in that
case) or as a subjective one. People v. Goecke, 579 N.W.2d at 878-79 & n.26. We note that
the case did not turn on the question whether the standard is subjectively or objectively
derived and that in addressing it, the court appeared mainly concerned with establishing the
unavailability of an intoxication-related defense to a charge of second-degree murder that
arose out of grossly reckless conduct.
Establishing malice under Michigan law does not require the showing
of a specific intent to kill, yet the courts have stated that proving wanton and
willful disregard of the likelihood of death or great bodily harm “differs little
in the scale of moral blameworthiness from an actual intent to cause such
harm.” Id. at 879. The recklessness required for a murder conviction
is of a degree greater than that required for a manslaughter conviction, in that
for murder, the prosecutor must show that the defendant performed an act
in wanton and willful disregard of the risk that the natural tendency of such act
was death or great bodily injury. Id. at 880 (noting also that “malice requires
egregious circumstances”). For manslaughter, the defendant is only reckless
as to the possibility that death or serious bodily harm may ensue. In Michigan,
a defendant’s evidence of voluntary intoxication does not prevent the
prosecution from proving that the defendant acted with extreme recklessness.
Id. at 878-79 & n.26.13
7. Respondent’s Appeal
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 longCite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
14 We also cannot credit the respondent’s argument that attacks the validity of his
convictions on the basis of an asserted violation of the Supreme Court’s decision in Padilla
v. Kentucky, 130 S. Ct. 1473 (2010). Any challenge to the convictions that rests
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.
We are also unpersuaded by the respondent’s argument that the
Immigration Judge’s decision to sustain the charge of removability under
section 237(a)(2)(A)(iii) of the Act violates the Supreme Court’s decision
in Leocal v. Ashcroft, 543 U.S. 1 (2004). As to the question whether
a second-degree murder conviction in Michigan constitutes an aggravated
felony conviction under section 101(a)(43)(A) of the Act, the Leocal decision
has no impact. Indeed, one of the reasons for having separate aggravated
felony branches covering murder and crimes of violence is that murder may
be committed through nonviolent means. See Rummel v. Estelle, 445 U.S.
263, 282 n.27 (1980) (“Caesar’s death at the hands of Brutus and his fellow
conspirators was undoubtedlyviolent; the death of Hamlet’s father at the hands
of his brother, Claudius, by poison, was not.”). Furthermore, the respondent’s
argument would appear to exclude felony murder provisions, which were
in 1988, and currently are, part and parcel of the Federal approach, as well
as a great majority of State murder statutes. We therefore reject the
respondent’s argument since it appears to confuse the requirements for finding
an aggravated felony under section 101(a)(43)(A) of the Act with Leocal’s
analysis of crimes of violence under section 101(a)(43)(F).14Cite as 25 I&N Dec. 748 (BIA 2012) Interim Decision #3746
on ineffective assistance of counsel must be brought to the State of Michigan
in an appropriate motion seeking to overturn or vacate the convictions based
on constitutional defects. We are unable to go beyond the convictions to assess their
validity. See Matter of Roberts, 20 I&N Dec. 294, 301 (BIA 1991).
15 We note that the respondent does not specifically address this issue in his brief on appeal.
In light of the foregoing and the Immigration Judge’s finding that the
respondent was sentenced to concurrent sentences of 8 to 20 years for the two
second-degree murder convictions, we agree with the Immigration Judge that
the respondent has been convicted of an aggravated felony and a particularly
serious crime. He is therefore ineligible for asylum or withholding of removal
under the Act. Sections 208(b)(2)(B)(i), 241(b)(3)(B)(ii) of the Act, 8 U.S.C.
§§ 1158(b)(2)(B)(i), 1231(b)(3)(B)(ii) (2006).
The respondent’s remaining application for relief is for deferral of removal
to Poland under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the
United States Apr. 18, 1988). We concur with the Immigration Judge’s
finding that the respondent failed to offer sufficient evidence to show that
he faces a clear probability of torture at the instigation of, or with the consent
or acquiescence of, government officials or persons acting in an official
capacity.15 A public official’s acquiescence to torture “requires that the public
official, prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to intervene
to prevent such activity.” 8 C.F.R. § 1208.18(a)(7) (2011). The respondent
has not shown that anyone in the Polish Government would consent
or acquiesce (including the concept of willful blindness) to his torture, and
he is therefore not entitled to relief under the Convention Against Torture.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.