Opinion
Civil Action No. 03-3566.
July 28, 2004
ORDER-MEMORANDUM
AND NOW, this 28th day of July, 2004, the "Petition for Writ of Habeas Corpus and Stay of Removal" of Jimmy Mallari is granted in part and denied in part.
On July 30, 2003, removal was stayed pending this litigation and any appeal.
On March 21, 1995, petitioner, a Phillipines national, entered the United States as a legal permanent resident. On September 28, 1998, a state grand jury in Delaware indicted petitioner for "Unlawful Sexual Intercourse in the Third Degree," a felony. Upon pleading guilty to "Unlawful Sexual Contact in the Third Degree," a misdemeanor, he received a one-year suspended sentence. On January 12, 2001, based on the conviction, the Bureau of Immigration and Customs Enforcement charged Mallari with removability under INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I) (conviction of "crime involving moral turpitude") and INA § 237(a)(2)(E)(I), 8 U.S.C. § 1227(a)(2)(E)(I) (conviction of "crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment"). The Immigration Judge sustained both charges and the Board of Immigration Appeals affirmed.
Petitioner, then 18, allegedly engaged in intercourse with his girlfriend, age 14.
The relevant statute states:
A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim's consent.11 Del. C. § 767 (2001).
The BICE originally served a "Notice to Appear" on Mallari on June 22, 2000, charging him as removable for having committed an "aggravated felony," because his crime constituted "murder, rape or sexual abuse of a minor," see INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) and INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), respectively. That charge was withdrawn.
Because the BIA adopted the IJ's opinion, the IJ's decision, in addition to the decision of the BIA, must be considered in this review. Zhelyatdinov v. Ashcroft, 2002 WL 31957526, at *4 (E.D. Pa., Dec. 27, 2002), citing Najir v. Ashcroft, 257 F.3d 1262, 1284 (3d Cir. 2001). "Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited." Sulaiman v. Attorney General, 212 F. Supp.2d 413, 415 (E.D Pa. 2002).
Petitioner argues that the IJ erred by looking beyond the plain language of the Delaware statute that defines "Unlawful Sexual Contact in the Third Degree" in order to determine whether conviction required removal under the INA. His position is that the elements of the crime did not expressly involve contact with a child, or abusive contact — therefore, conviction did not necessitate removal. Further, the IJ should not have reviewed the attendant facts, given the clear language of the statute in question. That argument, ultimately, is without merit.
The "Oral Decision and Order of the Immigration Judge" establishes that the IJ reviewed the indictment and the Delaware sentencing judge's order, both of which referred to the age of the victim. See Petitioner's Exhibit "G", at 3.
Though the statute does not specify that the crime be committed against a minor, its silence regarding the victim's age leaves open that possibility. See In re Crammond, 23 I.N. Dec. 9 (BIA 2001) (lesser sexual offenses — not involving felonies — are covered under § 237(a)(2)(E)). Where, as here, a criminal statute includes some offenses that call for removal and some that do not, the IJ may look to the record of conviction to ascertain the nature of the offense. See In re Beckford, 22 I.N. Dec. 1216 (BIA Jan. 19, 2000), citing In re Short, 20 I.N. Dec. 136 (BIA 1989). The IJ in this case properly looked to the indictment and record of conviction — which disclosed the victim's age.
The petition for habeas relief must be denied.