BIA: Murder without intent to kill is aggravated felony

By University of Denver Sturm College of Law

Apr 11, 2013

The BIA held that murder that does not require intent to kill constitutes “murder” as used in the INA’s aggravated felony definition. Matter of M-W-, 25 I&N Dec. 748 (BIA April 9, 2012) (Cole, Pauley, and Wendtland, Board Members). Reckless and wanton disregard for human life is sufficient. Board member Pauley wrote the panel’s opinion.

This case involves an LPR who was convicted of Michigan’s second-degree murder offense, Mich. Comp. Law § 750.317. According to the BIA, “[t]he offense appears to have resulted from an early morning traffic incident in which the respondent rear-ended a car, killing the occupants on impact.” Matter of M-W-, 25 I&N Dec. at 749. The Michigan statute does not require intent to kill; “act[ing] in wanton and willful disregard of the likelihood that the natural tendency of said act would cause death or great bodily harm” is sufficient for a conviction. Matter of M-W-, 25 I&N Dec. at 749. The IJ determined that this offense is an aggravated felony pursuant to INA § 101(a)(43)(A). Matter of M-W-, 25 I&N Dec. at 749.

The BIA began its analysis by considering the common law and federal statutory definitions of murder. Both, it concluded, allow convictions when the defendant acted with willful disregard for human life.

The federal murder statute applicable to some maritime and territorial prosecutions includes “malice aforethought” as an element of murder. Matter of M-W-, 25 I&N Dec. at 752 (quoting 18 U.S.C. §1111(a)). This concept, the BIA explained, has been part of the common law since before the sixteenth century. Matter of M-W-, 25 I&N Dec. at 752. At common law, malice required either that the defendant “‘intended to take life’ or ‘ that he had ‘a wicked, depraved, and malignant heart.’” Matter of M-W-, 25 I&N Dec. at 753 (quoting Davis v. United States, 160 U.S. 469, 485 (1895)).

Furthermore, under federal law malice aforethought includes “an intent to do serious bodily injury or an extreme recklessness and wanton disregard for human life (‘depraved heart’).” Matter of M-W-, 25 I&N Dec. at 753. Importantly, a depraved heart requires more than gross negligence or ordinary recklessness. Matter of M-W-, 25 I&N Dec. at 754. Rather, “[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.’” Matter of M-W-, 25 I&N Dec. at 754 (quoting United States v. Livoti, 22 F. Supp. 2d 235, 245 (S.D.N.Y. 1998)).

Turning next to the Michigan murder statute, the Board noted that Michigan requires malice aforethought for first and second-degree murder. Matter of M-W-, 25 I&N Dec. at 757. And like the federal definition, Michigan courts have defined malice aforethought to include “‘the intent to cause great bodily harm, or the intent 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.’” Matter of M-W-, 25 I&N Dec. at 757 (quoting People v. Roper, 777 N.W. 2d 483, 490 (Mich. Ct. App. 2009)).

Accordingly, because the mental state required for a murder conviction under federal law is identical to the mental state required under Michigan law, the Board concluded that conviction for committing second-degree murder in Michigan constitutes a “murder” type of aggravated felony. Matter of M-W-, 25 I&N Dec. at 758-759.