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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

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brian C. Burgtorf, Assistant

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.

I. FACTUAL AND PROCEDURAL HISTORY

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 that

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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 Act

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.

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Interim Decision #3746

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

101(a)(43)(F).

II. STATUTE INVOLVED

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.

III. ANALYSIS

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 newly

2

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.

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Interim Decision #3746

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 crime

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.

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Interim Decision #3746

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 homicides

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)).

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Interim Decision #3746

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’”).

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).

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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).7

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)

(continued...)

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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.

(...continued)

(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.

1988).

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)).

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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 by many defendants 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.

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.

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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).

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).

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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 long

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.

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Interim Decision #3746

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 undoubtedly violent; 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).14

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

(continued...)

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Interim Decision #3746

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.

(...continued)

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.

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