Malilia v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PIERRE NICHOLAS MALILIA, aka 

David Fox,

No. 05-77397

Petitioner,

v.  Agency No.

A029-554-456

ERIC H. HOLDER JR., Attorney

OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 6, 2010—San Francisco, California

Filed February 3, 2011

Before: Robert R. Beezer, Andrew J. Kleinfeld, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Beezer

2135

MALILIA v. HOLDER 2139

COUNSEL

Thomas K. Ragland, Duane Morris LLP, Washington, D.C.,

for the petitioner.

Jesse M. Bless, Trial Attorney, Office of Immigration Litiga-

tion Civil Division, U.S. Department of Justice, Washington,

D.C., for the respondent.

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 immigra-

tion 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.

2140 MALILIA v. HOLDER

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 deliv-

ering 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 falsi-

fied 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

Service1 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 proceed-

ings were pending, Malilia married Ms. Vilaykone Southa-

sarn, 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 deny-

ing Malilia’s oral request for a continuance. The IJ provided

two reasons for denying the continuance. First, the IJ stated

1

The INS ceased to exist on March 1, 2003, and its functions were

transferred to U.S. Citizenship and Immigration Services (“USCIS”), part

of the newly formed Department of Homeland Security (“DHS”).

MALILIA v. HOLDER 2141

that Malilia’s marriage to a U.S. citizen was “subject to a pre-

sumption [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 unpre-

dictable 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

[1] The parties dispute whether we have jurisdiction to

consider either of Malilia’s claims. When a petitioner’s con-

viction is a deportable firearms offense under 8 U.S.C.

§ 1227(a)(2)(C), this court does not have jurisdiction to con-

sider 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 deport-

able and is not entitled to an appeal. Valerio-Ochoa v. INS,

241 F.3d 1092, 1094 (9th Cir. 2001). However, we still have

2

Section 1252(a)(2)(C) reads as follows:

Notwithstanding any other provision of law . . . no court shall

have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal

offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B),

(C), or (D) of this title for which both predicate offenses are,

without regard to their date of commission, otherwise covered by

section 1227(a)(2)(A)(i) of this title.

2142 MALILIA v. HOLDER

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 administer-

ing. INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987)

(citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843 (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, 130

S.Ct. 1011 (2009). Where the BIA has determined that a par-

ticular criminal offense renders an alien removable, we

review that determination de novo.

The government is incorrect to assert that the BIA’s inter-

pretation of § 1227 merits deference. The BIA is not just

interpreting § 1227 when making the determination that deliv-

ery of firearms is a removable offense. To make that determi-

nation, 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 (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

[2] Malilia pleaded guilty to knowingly delivering a fire-

arm without first providing written notice to the carrier. 18

U.S.C. § 922(e).3 At issue is whether Malilia’s firearms

3

Section 922(e) states in part:

MALILIA v. HOLDER 2143

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 predi-

cate 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.

It shall be unlawful for any person knowingly to deliver or cause

to be delivered to any common or contract carrier for transporta-

tion or shipment in interstate or foreign commerce . . . any pack-

age or other container in which there is any firearm or

ammunition without written notice to the carrier that such firearm

or ammunition is being transported or shipped . . . .

4

Section 1227(a)(2)(C) reads as follows:

Any alien who at any time after admission is convicted under any

law of purchasing, selling, offering for sale, exchanging, using,

owning, possessing, or carrying, or of attempting or conspiring to

purchase, sell, offer for sale, exchange, use, own, possess, or

carry, any weapon, part, or accessory which is a firearm or

destructive device . . . in violation of any law is deportable.

2144 MALILIA v. HOLDER

[3] 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, owner-

ship, or possession of firearms, but also any attempt

or conspiracy to do so. Finally, [section 1227]

encompasses convictions “under any law” of engag-

ing or attempting to engage in such transactions.

This wide-ranging text evinces an expansive purpose

— to render deportable those aliens that commit fire-

arms 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.” 18 U.S.C.

§ 1227(a)(2)(C). This repetitive use of unqualified language

demonstrates Congress’ intent to embrace the panoply of fire-

arms 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.

[4] 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 circum-

stances in which the criminal statute is categorically over-

broad, 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 con-

viction,’ ” 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

MALILIA v. HOLDER 2145

documents include the indictment, the judgment of convic-

tion, the jury instructions, a signed guilty plea, and the tran-

script from the plea proceedings. Tokatly, 371 F.3d at 620.

[5] In particular, when determining whether a guilty plea

admits the necessary elements of the generic offense, a modi-

fied categorical inquiry is limited “to the terms of the charg-

ing document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” Shepard v.

United States, 544 U.S. 13, 26 (2005). The issue here is not

whether every guilty plea under § 922 demonstrates (or

encompasses) exchange, possession, sale, or use of firearms,

but rather whether Malilia’s particular guilty plea constitutes

a violation of “any law” prohibiting exchange, possession,

sale, or use of firearms. The record of conviction demon-

strates that Malilia “knowingly and willfully delivered” 80

firearms in violation of 18 U.S.C. § 922(e).

[6] Malilia asserts that his conviction is not a removable

offense because § 922 criminalizes only improper delivery.

Essentially, Malilia argues that, because delivery is not pos-

session, a conviction for delivery is not a predicate offense

under § 1227. But to establish the elements of a § 922 viola-

tion, the government must prove that the defendant had actual

or constructive possession of the firearm. As the Second Cir-

cuit has commented, “the power to send or take a commodity

out of the country necessarily implies — because of the exer-

cise of dominion or control — at least constructive possession

of the commodity.” Kuhali, 266 F.3d at 105. Possession is a

necessary part of delivery. “[I]t would be incongruous to read

the statute to encompass the possession or carrying of fire-

arms when committed as crimes in their own right, but not

when committed as necessary elements of other crimes.” Id.

at 103.

Congress did not write the law so that an alien who unlaw-

fully possesses a firearm may be removed while an alien who

2146 MALILIA v. HOLDER

possesses a firearm and then unlawfully delivers that firearm

may not be removed.

The Supreme Court dealt with a similar issue in United

States v. Bass, 404 U.S. 336 (1971). In Bass, the Court con-

sidered a statute that imposed criminal sanctions on a person

who “receives, possesses, or transports in commerce or affect-

ing commerce . . . any firearm.” Id. at 337 (internal quotation

marks omitted). The question was whether a conviction for

possession alone would require further proof that the firearm

had been “in commerce or affecting commerce.” Id. at 339.

The Court said that the conviction would require further

proof, reasoning that “[s]ince virtually all transportations,

whether interstate or intrastate, involve an accompanying pos-

session or receipt, it is odd indeed to argue that on the one

hand the statute reaches all possessions and receipts, and on

the other hand outlaws only interstate transportations.” Id. at

340-41. The Bass Court concluded that establishing posses-

sion does not, without more, prove that a firearm traveled

interstate, but establishing that a firearm traveled interstate

necessarily requires some element of possession. See id. at

340-41, 350-51.

[7] In the same way that transportation in Bass included an

element of possession, Malilia’s delivery necessarily required

some form of possession, which means that Malilia’s convic-

tion renders him removable under 8 U.S.C. § 1227(a)(2)(C).

[8] We therefore dismiss Malilia’s first challenge for lack

of jurisdiction. Valerio-Ochoa, 241 F.3d at 1094. This, how-

ever, does not mean that we cannot consider Malilia’s sepa-

rate challenge that the IJ’s denial of Malilia’s request for a

continuance was based on an error of law. We retain jurisdic-

tion to review errors of law pursuant to 8 U.S.C.

§ 1252(a)(2)(D).

IV

[9] Malilia’s second claim is that the IJ abused his discre-

tion when the court denied Malilia’s request for a continu-

MALILIA v. HOLDER 2147

ance. Malilia had requested the continuance to afford USCIS

the opportunity to adjudicate an I-130 filed by Malilia’s wife.

Approval of an I-130 enables an alien in removal proceedings

to apply for adjustment of status to lawful permanent resident.

Even an alien who is removable for a firearms conviction is

eligible for adjustment of status if the alien presents an

approved I-130. See In re Rainford, 20 I. & N. Dec. 598, 602

(B.I.A. 1992).

The IJ denied Malilia’s request for a continuance for two

reasons. First, the IJ stated that Malilia’s marriage was subject

to a “presumption” that the marriage was entered into in bad

faith. Second, the IJ stated that the DHS approval process

could take years, and that the immigration court could not jus-

tify a long delay in the proceedings. The IJ’s first justification

is well-grounded in legislative history and precedent. The sec-

ond, however, constitutes reversible error.

[10] Malilia suggests that we distinguish between “burden

of proof” and “presumption.” However, a heightened burden

of proof creates a rebuttable presumption. In re Aurthur, 20

I. & N. Dec. 475 (B.I.A. 1992), modified on other ground by

In re Velarde, 23 I. & N. Dec. 253 (B.I.A. 2002). Malilia had

the burden of proof to show, through “clear and convincing

evidence,” that his marriage was not fraudulent. Therefore,

the IJ did not make an error of law in characterizing Malilia

as presumptively not entitled to an adjustment of status.

The legislative history supports this holding. Traditionally,

the Immigration and Nationality Act (“INA”) has granted spe-

cial rights to an alien who is married to a U.S. citizen or law-

ful permanent resident. In 1986, Congress enacted several

amendments to the INA in an effort to deter fraud by aliens

seeking to adjust their status based upon their marriage to a

United States citizen or lawful permanent resident. In re

Arthur, 20 I. & N. Dec. at 478. One such amendment pre-

cluded an alien from adjusting his status based on a marriage

entered into during removal proceedings unless the alien

2148 MALILIA v. HOLDER

resided outside the United States “for a 2-year period begin-

ning after the date of the marriage.” Immigration Marriage

Fraud Amendments of 1986, Pub. L. No. 99-639, § 5(a) (codi-

fied as amended at section 245(e) of the INA, 8 U.S.C.

§ 1255(e)(1)-(2) (2006)). The provision was not only easy to

administer, but was also very effective at screening out sus-

pect marriages, because every marriage entered into during

removal proceedings fell within its scope.

However, critics began to note that the provision’s exceed-

ingly broad applicability unnecessarily excluded from adjust-

ment aliens whose marriages were bona fide, “with obvious

resulting hardship to citizens and lawful permanent residents

of this country.” In re Velarde-Pacheco, 23 I. & N. at 258

(Holmes, Board Member, concurring). Congress responded

with additional amendments in 1990, including an exception

to the 2-year bar for those aliens who could establish “by

clear and convincing evidence . . . that the marriage was

entered into in good faith and . . . was not entered into for the

purpose of procuring the alien’s entry as an immigrant.”

Immigration Act of 1990, Pub. L. No. 101-649, § 702(a) (cod-

ified as amended at section 245(e)(3) of the INA, 8 U.S.C.

§ 1255(e)(3) (2006)). See also Melnitsenko v. Mukasey, 517

F.3d 42, 48-49 (2d Cir. 2008); Conteh v. Gonzales, 461 F.3d

45, 64-65 (1st Cir. 2006).

[11] Because Congress first enacted an absolute bar to

adjustment of status based on a marriage entered into during

removal proceedings, and then enacted an exception to this

bar with a heightened evidentiary burden to establish the bona

fides of the marriage, the BIA reasoned that “Congress rather

clearly created a presumption that marriages contracted after

the institution of exclusion or deportation proceedings are

fraudulent.” In re Arthur, 20 I. & N. at 478-479. Given this

legislative history, it appears that Congress’s intent in amend-

ing the marriage fraud provisions was to provide aliens who

marry during removal proceeds “one opportunity to present

clear and convincing evidence that their marriage is bona

MALILIA v. HOLDER 2149

fide.” In re Velarde-Pacheco, 23 I. & N. Dec. at 257. Absent

a showing of clear and convincing evidence, the marriage is

presumed fraudulent. In re Arthur, 20 I. & N. at 479.

[12] Though Malilia would have us characterize the

heightened burden of proof on the alien as something differ-

ent from a presumption, it is not. All a presumption does, if

it is rebuttable, as this one is, is to establish which side has the

burden of proof. In this case, the burden of proof is height-

ened by the “clear and convincing evidence” requirement.

Therefore, the IJ did not make an error of law in characteriz-

ing Malilia’s marriage as presumptively fraudulent.

[13] Second, Malilia’s continuance request was denied

partly because the IJ speculated that the approval process

could take months or even years. But delays in the USCIS

approval process are no reason to deny an otherwise reason-

able continuance request. As we have stated before, basing a

denial on such grounds is akin to “blaming a petitioner for an

administrative agency’s delay.” Ahmed v. Holder, 569 F.3d

1009, 1013 (9th Cir. 2009). Malilia should not have to bear

the ultimate cost for USCIS’s inefficiencies. If approval can

wait, then surely removal can also wait. There is no evidence

that Malilia was dangerous or that Malilia needed to be

removed quickly. In fact, the government waited nearly 10

years before serving Malilia with a Notice to Appear. In that

context, one continuance to afford USCIS the opportunity to

adjudicate a pending I-130 application is surely reasonable.

Although it came down subsequently, the BIA decision in

In re Hashmi informs us of the standards the agency has

approved for discretion in such a matter. 24 I. & N. 785

(B.I.A. 2009). The facts in In re Hashmi are similar to the

facts at issue here. In In re Hashmi the respondent was in

removal proceedings and had asked the IJ for a series of con-

tinuances to allow DHS to process a pending I-130 applica-

tion. Id. at 786. The IJ granted four continuances over a 13-

month period while USCIS considered the I-130. But the I-

2150 MALILIA v. HOLDER

130 adjudication process dragged on with numerous delays

because at certain points DHS did not have the file, and at

other points USCIS did not have the file. Id. Owing to these

delays, respondent sought a fifth continuance, which DHS did

not oppose. Id. Nevertheless, the IJ denied the request,

explaining “that he was expected to complete cases in a rea-

sonable period of time by meeting certain ‘case completion

goals’ set by the Department of Justice.” Id. The BIA

affirmed the IJ’s decision to deny the continuance.

The Third Circuit, however, reversed. Hashmi v. Att’y Gen.

of U.S., 531 F.3d 256 (3d Cir. 2008). The Third Circuit

pointed out that Hashmi “ha[d] been mired in a bureaucratic

morass caused by the government’s failure to ensure that nec-

essary information about his case ha[d] been available to both

those adjudicating his removal proceedings and those adjudi-

cating his I-130 petition.” Id. at 258. The court also noted that

a “ruling in favor of the government here would leave DHS

with no incentive to fix its procedures to avoid such a situa-

tion in the future and would allow the deportation of

similarly-situated individuals, who may well be entitled to an

adjustment of status, simply because [of agency delay].” Id.

at 261-62.

On remand, the BIA articulated five factors that an IJ

should consider when determining whether to continue pro-

ceedings to afford the respondent an opportunity to apply for

adjustment of status premised on a pending visa petition. The

factors are: “(1) the DHS response to the motion; (2) whether

the underlying visa petition is prima facie approvable; (3) the

respondent’s statutory eligibility for adjustment of status; (4)

whether the respondent’s application for adjustment [of sta-

tus] merits a favorable exercise of discretion; and (5) the rea-

son for the continuance and other procedural factors.” In re

Hashmi, 24 I. & N. Dec. at 790. These commonsense stan-

dards should be applied in this case.

[14] In In re Hashmi the BIA made clear that where DHS

does not oppose the continuance, “the proceedings ordinarily

MALILIA v. HOLDER 2151

should be continued by the Immigration Judge in the absence

of unusual, clearly identified, and supported reasons for not

doing so.” Id. at 791. Here, the IJ denied Malilia’s continu-

ance request, in part, because of agency delay, a reason that

is hardly unusual, given the routine delays involved in the

USCIS approval process. The BIA also emphasized that,

when determining the reasons for the continuance, “a critical

inquiry will revolve around which party is most responsible

for the delay in the proceedings.” Id. at 793. Much like the sit-

uation in In re Hashmi, the delays in adjudicating Malilia’s I-

130 stemmed primarily from USCIS. “Delay that is not attrib-

utable to the respondent augurs in favor of a continuance.” Id.

[15] Moreover, In re Hashmi also holds that

[f]actors relevant to determining whether a favorable

exercise of discretion is warranted include, but are

not limited to, the existence of family ties in the

United States; the length of the respondent’s resi-

dence in the United States; the hardship of traveling

abroad; and the respondent’s immigration history,

including any preconceived intent to immigrate at

the time of entering as a nonimmigrant.

Id. at 793. Malilia’s long residence in the United States and

his family ties in the United States both weighed substantially

in his favor.

[16] Additionally, USCIS has since determined that

Malilia’s marriage was not entered into in bad faith and has

approved the I-130. This means that the government now

acknowledges that Malilia’s marriage is bona fide, so Malilia

would have been allowed to apply for an adjustment of status

had the continuance been granted. See Ahmed v. Holder, 569

F.3d 1009, 1013 (9th Cir. 2009) (noting in a similar situation

that had a continuance been granted to allow the adjudication

of an ultimately successful I-140 “[the petitioner] could have

2152 MALILIA v. HOLDER

filed a Form I-485 to adjust his status to that of a permanent

resident”).

[17] It is generally an abuse of discretion to deny an unop-

posed request for a continuance where the delay is not attrib-

utable to the respondent and is needed solely so that an

agency ruling likely to be determinative, already timely

applied for, can be issued prior to removal.

[18] Because the IJ’s decision to deny Malilia a continu-

ance was an abuse of discretion, we reverse and remand to

afford Malilia the opportunity to apply for adjustment of sta-

tus based on the now-approved I-130 application.

DISMISSED in part, GRANTED in part, and

REMANDED to the immigration court. Costs on appeal

awarded to Petitioner.