On Petition for Review of a Decision of the Board of Immigration Appeals. No. A024 642 900.
George E. Ward, Canton, Michigan, for Petitioner.
Erica B. Miles, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before GIBBONS and WHITE, Circuit Judges; [**]
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 offense of "murder" under immigration law. For the reasons that follow, we affirm the BIA's decision and deny Wajda's petition for review.
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 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 ...