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Pierre Nicholas Malilia v. Eric H.

February 3, 2011

PIERRE NICHOLAS MALILIA, AKA DAVID FOX,
v.
ERIC H. HOLDER JR., ATTORNEY
GENERAL, RESPONDENT.



Petitioner, Agency No.A029-554-456 On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted

The opinion of the court was delivered by: Judge Beezer

FOR PUBLICATION

October 6, 2010-San Francisco, California

Before: Robert R. Beezer, Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

Opinion by Judge Beezer

OPINION

COUNSEL

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*fn1 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 ...


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