United States District Court, E.D. Pennsylvania
July 28, 2004.
WILLIAM RILEY, ET AL.
The opinion of the court was delivered by: EDMUND LUDWIG, Senior District Judge
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.*fn1
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.*fn2 Upon pleading guilty to "Unlawful Sexual Contact
in the Third Degree," a misdemeanor, he received a one-year
suspended sentence.*fn3 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").*fn4 The Immigration Judge sustained both
charges and the Board of Immigration Appeals affirmed.
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.*fn5 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. 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
The petition for habeas relief must be denied.