Malilia v. Holder, 632 F.3d 598

Malilia is a native and citizen of Malta and has been a lawful permanent resident since 1991.
In 1993 Malilia pled guilty to delivering a package containing firearms in violation of 18 U.S.C. § 922(e), with facts showing delivery of ~80 firearms and mislabeling the shipment.
The district court sentenced Malilia to 12 months' probation in connection with the § 922(e) plea.
In 2002 the INS issued a Notice to Appear alleging removability under § 1227(a)(2)(C) based on the firearms conviction.
While removal proceedings were pending, Malilia married a U.S. citizen who filed an I-130 on his behalf and sought a continuance to allow adjudication.
The IJ denied the continuance, reasoning the marriage was presumptively fraudulent and that waiting for USCIS could be lengthy; the BIA affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the conviction is a deportable firearms offense	Malilia contends § 922(e) delivery is not a predicate offense under § 1227.	Holder argues delivery with possession fits § 1227(a)(2)(C) as a firearms offense.	The conviction renders Malilia removable; jurisdiction to review is limited, but issue resolved in favor of the government.
Whether the IJ abused discretion in denying a continuance for the I-130	Malilia asserts denial was an abuse of discretion; delays due to DHS/USCIS should be weighed in his favor.	DHS argued financial and timing considerations, including presumptions about marriage, justify denial.	IJ abused discretion; remand to permit adjustment based on the now-approved I-130.

Valerio-Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001) (deportability determination reviewed de novo; deference limited in criminal statutes)
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (deference to BIA where interpreting statutes; standard for agency interpretation)
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (no deference to BIA's interpretation of criminal statutes in removal)
Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (initial interpretation of criminal statutes reviewed de novo)
Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (modified categorical approach for overbroad statutes)
Shepard v. United States, 544 U.S. 13 (2005) (limits on the documents used in the modified categorical inquiry)
Bass v. United States, 404 U.S. 336 (1971) (possession and transport elements in firearm statutes; relevance to delivery)
In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (five-factor test for continuances where DHS not opposed)
In re Arthur, 20 I. & N. Dec. 478 (BIA 1986) (presumption framework for marriages entered during removal proceedings)
Velarde-Pacheco, 23 I. & N. Dec. 256 (BIA 1980s) (presumptions regarding marriage fraud and adjustment eligibility)
Hall v. INS, 167 F.3d 852 (4th Cir. 1999) (broad reading of § 1227 to encompass various firearm offenses)