USCA11 Case: 21-12951 Date Filed: 05/25/2022 Page: 1 of 8 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-12951 Non-Argument Calendar ____________________ JOSE RUMILDO CANALES HERNANDEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A044-006-492 ____________________ USCA11 Case: 21-12951 Date Filed: 05/25/2022 Page: 2 of 8 2 Opinion of the Court 21-12951 Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM, Circuit Judges. PER CURIAM: This appeal presents the issue whether a conviction for sec- ond degree murder under North Carolina law, N.C. Gen. Stat. § 14- 17(b), categorically qualifies as an aggravated felony under the Im- migration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A). Jose Canales Hernandez petitions for review of an order affirming his removal to Honduras on the ground that his prior conviction un- der section 14-17(b) satisfied the generic definition of murder in Matter of M-W-, 25 I. & N. Dec. 748 (BIA 2012), pet. for review denied, Wadja v. Holder, 727 F. 3d 457 (6th Cir. 2013). See 8 U.S.C. § 1227(a)(2)(A)(iii). Hernandez argues that the generic definition, which requires malice aforethought, does not encompass his prior conviction for second degree murder, which requires malice and excludes premeditation and deliberation. Because both malice and malice aforethought include homicide with an intent to kill and willful acts perpetrated with extreme recklessness and wanton dis- regard for human life that cause the death of another, Hernandez’s prior conviction categorically qualifies as an aggravated felony. We deny his petition. Hernandez, a native and citizen of Honduras, became a law- ful permanent resident of the United States in 1993. In 2013, Her- nandez pleaded guilty in a North Carolina court to second degree murder for “kill[ing] another living human being, Carlos USCA11 Case: 21-12951 Date Filed: 05/25/2022 Page: 3 of 8 21-12951 Opinion of the Court 3 Velasquez, with malice.” N.C. Gen. Stat. § 14-17(b)(1). Hernandez also pleaded guilty to felony hit and run for “fail[ing] to immedi- ately stop the vehicle [he] was driving at the scene of an accident and collision” with Velasquez. Id. § 20-166. The Department of Homeland Security charged Hernandez as removable for being “convicted of an aggravated felony, . . . a crime of violence . . . for which the term of imprisonment ordered is at least one year . . . after [his] admission” to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). Hernandez contested removability and moved to terminate his removal proceedings. The immigration judge denied Hernandez’s motion to ter- minate on the ground that his prior conviction qualified as an ag- gravated felony. “[T]urning to [Hernandez’s] conviction . . . [of] second degree murder in North Carolina as defined . . . as the un- lawful killing of a human being with malice but without premedi- tation and deliberation,” the immigration judge found that “defini- tion . . . [was] a categorical match” to “the generic definition of murder.” See …
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