Malilia v. Eric H. Holder Jr.

• Decision Date: 03 February 2011
• Docket Number: No. 05–77397.,05–77397.
• Parties: Pierre Nicholas MALILIA, aka David Fox, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

632 F.3d 598

11 Cal. Daily Op. Serv. 1625

2011 Daily Journal D.A.R. 2008

Pierre Nicholas MALILIA, aka David Fox, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05–77397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 2010.Filed Feb. 3, 2011.

Thomas K. Ragland, Duane Morris LLP, Washington, D.C., for the petitioner.Jesse M. Bless, Trial Attorney, Office of Immigration Litigation Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A029–554–456.Before: ROBERT R. BEEZER, ANDREW J. KLEINFELD, and SUSAN P. GRABER, Circuit Judges.

OPINION

BEEZER, Circuit Judge:

Pierre Nicholas Malilia (“Malilia”) petitions for review of two decisions by the Board of Immigration Appeals (“BIA”). First, Malilia argues that a conviction for improper delivery of a firearm is not a deportable firearms offense under 8 U.S.C. § 1227(a)(2)(C). Second, Malilia appeals the immigration judge's (“IJ”) decision to deny Malilia's request for a continuance while his I–130 application was pending.

We dismiss Malilia's first ground for appeal for lack of jurisdiction, because a conviction for improper delivery of a firearm is a deportable offense. However, we conclude that the IJ abused his discretion in denying Malilia's continuance request, because the IJ failed to follow the BIA's guidelines when considering the request.

Accordingly, we dismiss in part, grant in part, and remand to afford Malilia an opportunity to apply for adjustment of status based on his now approved I–130.

I

Malilia is a native and citizen of Malta who was admitted as a lawful permanent resident of the United States on July 22, 1991. On March 1, 1993, Malilia pleaded guilty to delivering a package containing firearms, in violation of 18 U.S.C. § 922(e). Malilia's plea agreement stipulated the following facts: (1) Malilia “knowingly and willfully delivered a crate or package containing approximately 80 firearms” to the Sky Harbor International Airport in Phoenix, Arizona; (2) Malilia “marked the package as containing machine parts” and falsified a receipt; (3) Malilia “presented this crate or package to the airline as machinery parts” to ship to Malta; (4) Malilia intended to ship the package “to a person who was not licensed as a firearms dealer, manufacturer, or importer”; and (5) Malilia did not give TWA Airlines written notice that the package contained firearms. Pursuant to Malilia's plea arrangement, the district judge sentenced Malilia to 12 months' probation.

On December 30, 2002, the Immigration and Naturalization Service ¹ issued Malilia a Notice to Appear, alleging that Malilia was removable under 8 U.S.C. § 1227(a)(2)(C) because of the firearms conviction. While removal proceedings were pending, Malilia married Ms. Vilaykone Southasarn, a United States citizen, who immediately filed an I–130 Adjustment of Status Application on Malilia's behalf. Malilia requested that the IJ grant Malilia a continuance to afford USCIS the time to adjudicate the pending I–130 application.

On August 12, 2004, the IJ issued an oral judgment, ruling that Malilia's conviction was a removable offense and denying Malilia's oral request for a continuance. The IJ provided two reasons for denying the continuance. First, the IJ stated that Malilia's marriage to a U.S. citizen was “subject to a presumption [that the marriage] was entered into for the purpose of obtaining an immigration benefit.” Second, the IJ could not “justify delaying [Malilia's] removal proceeding for an unpredictable period of time, certainly involving months, perhaps involving years” waiting for USCIS to adjudicate the I–130. Id.

Malilia appealed to the BIA, which issued an opinion affirming the IJ. The BIA held that because “possession” is a necessary element of “delivery,” Malilia's conviction was a removable offense. The BIA also agreed with the IJ that there was a “presumption that the marriage was not entered into in good faith.” Following the BIA's decision, Malilia filed a Petition for Review with this court. Shortly thereafter, USCIS determined that Malilia's marriage to Ms. Southasarn was bona fide and approved the couple's I–130 application.

II

The parties dispute whether we have jurisdiction to consider either of Malilia's claims. When a petitioner's conviction is a deportable firearms offense under 8 U.S.C. § 1227(a)(2)(C), this court does not have jurisdiction to consider challenges to removal orders based on that conviction. 8 U.S.C. § 1252(a)(2)(C).² In other words, an alien who is convicted of a firearms offense covered by § 1227 is deportable and is not entitled to an appeal. Valerio–Ochoa v. INS, 241 F.3d 1092, 1094 (9th Cir.2001). However, we still have jurisdiction to determine our own jurisdiction. Id. We also have jurisdiction over questions of law. 8 U.S.C. § 1252(a)(2)(D).

Federal courts afford the BIA substantial deference when the BIA interprets a statute that it is charged with administering. INS v. Cardoza–Fonseca, 480 U.S. 421, 446–48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). However, when reviewing a removal decision, federal courts owe no deference to the BIA's interpretation of a criminal statute. Marmolejo–Campos v. Holder, 558 F.3d 903, 907–08 (9th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 1011, 175 L.Ed.2d 620 (2009). Where the BIA has determined that a particular criminal offense renders an alien removable, we review that determination de novo.

The government is incorrect to assert that the BIA's interpretation of § 1227 merits deference. The BIA is not just interpreting § 1227 when making the determination that delivery of firearms is a removable offense. To make that determination, the BIA must first interpret 18 U.S.C. § 922(e), a criminal statute, and then apply § 1227 to this interpretation. We review that initial interpretation of § 922(e) de novo, with no deference to the BIA's determination. INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

We review the IJ's denial of a continuance for an abuse of discretion. Karapetyan v. Mukasey, 543 F.3d 1118, 1121 (9th Cir.2008).

III

Malilia pleaded guilty to knowingly delivering a firearm without first providing written notice to the carrier. 18 U.S.C. § 922(e).³ At issue is whether Malilia's firearms offense renders him removable under 8 U.S.C. § 1227(a)(2)(C).⁴

Malilia argues that a conviction for improper delivery of a firearm under 18 U.S.C. § 922(e) does not qualify as a predicate firearms offense under § 1227 because the enumerated list does not mention delivery. Based on that fact, Malilia asserts that Congress did not intend to include “delivery” as a qualifying offense. But the history of § 1227 belies this claim. Congress intended the provision to apply broadly. Before 1990 the provision only listed two generic categories as bases for deportation: “possessing or carrying.” 8 U.S.C.A. § 1251(a)(14) (1990). During the early 1990s Congress repeatedly expanded the list of deportable firearms offenses. Congress' first major revision added to the list of deportable offenses “purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying” any firearm illegally. Pub.L. No. 101–649, § 602(a)(2)(C) (1990). Four years later Congress added inchoate offenses to the list. See Immigration and Nationality Technical Corrections Act of 1994, Pub.L. No. 103–406, § 203(b) (1994). Each revision stretched the scope of deportable firearms offenses, closing gaps and expanding § 1227's reach.

As we have previously stated, § 1227's

comprehensive list of gerunds captures all varieties of conduct relating to firearms transactions. [Section 1227] includes inchoate as well as completed offenses, enumerating not only the sale, use, ownership, or possession of firearms, but also any attempt or conspiracy to do so. Finally, [section 1227] encompasses convictions “under any law” of engaging or attempting to engage in such transactions. This wide-ranging text evinces an expansive purpose—to render deportable those aliens that commit firearms offenses of any type.

Valerio–Ochoa, 241 F.3d at 1095 (quoting Hall v. INS, 167 F.3d 852, 855 (4th Cir.1999)). For instance, § 1227 includes the following phrases: “any alien,” “any time,” “under any law,” and “in violation of any law.” 8 U.S.C. § 1227(a)(2)(C). This repetitive use of unqualified language demonstrates Congress' intent to embrace the panoply of firearms offenses. Valerio–Ochoa, 241 F.3d at 1095. The Second and Fourth Circuits both agree with this reading. Kuhali v. Reno, 266 F.3d 93, 103 (2d Cir.2001); Hall, 167 F.3d at 855.

However, it is true that § 922 clearly regulates the delivery of both firearms and ammunition. Because only the improper delivery of firearms would constitute a removable offense, a violation of § 922 is not categorically a removable offense. For instance, improperly delivering ammunition would not render an alien removable under § 1227. In circumstances in which the criminal statute is categorically overbroad, we proceed to a modified categorical approach. In addition to the statute of conviction, we consider “ ‘a narrow, specified set of documents that are part of the record of conviction,’ ” to determine whether the defendant was convicted of the necessary elements of the generic crime. Suazo Perez v. Mukasey, 512 F.3d 1222, 1226 (9th Cir.2008) (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)). These documents include the indictment, the judgment of conviction, the jury instructions, a signed guilty plea, and the transcript from the plea proceedings. Tokatly, 371 F.3d at 620.

In particular, when determining whether a guilty plea admits the necessary elements of the generic offense, a modified categorical inquiry...