In 2007, Nancy Arabillas Morales, a.k.a. Juan Manuel Arabillas Morales, a male-to-female transsexual, petitioned for review of the Board of Immigration Appeals’ (“BIA”) decision summarily affirming an Immigration Judge’s (“IJ”) removal order and denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
The IJ concluded that Morales was removable both because he was an alien present in the United States without admission or parole and because he had been convicted of a crime involving moral turpitude-communication with a minor for immoral purposes. The IJ further found Morales would have been eligible for asylum but for his conviction, which the IJ determined was a particularly serious crime. Having made that decision, the IJ denied Morales’s applications for asylum and for withholding of removal. The IJ also denied Morales’s application for CAT relief on the merits, holding that Morales had not shown it was more likely than not he would be tortured if he were returned to Mexico.
The U.S. Court of appeals for the Ninth Circuit concludes the IJ improperly relied on a recitation of facts in the Washington appellate court’s opinion affirming Morales’s conviction. Relying on those facts, the IJ determined that Morales’s conviction was for a particularly serious crime. A substantial portion of the facts the IJ relied upon, however, applied to offenses for which Morales had not been convicted. Therefore, the court remanded to the BIA with instructions to remand to the IJ for a redetermination of the “particularly serious crime” issue.
Here is a statement of what Morales did:
On December 4, 2001, 15-year-old J.F. and 14-year-old W.P. went to the McDonald’s restaurant on Queen Anne at approximately four o’clock in the afternoon. After placing their orders with 33-year-old Nancy Morales, they sat down to eat. Several minutes later, J.F. went to the bathroom. Before entering the bathroom, he saw Morales pull his shirt down, exposing his breast to him. Thinking J.F. was about to speak, he pointed to the back of the restaurant and motioned for him to be quiet by placing his finger over his lips and saying “shhh”. He continued into the bathroom alone. He then exited the bathroom and sat back down with W.P., and Morales was back behind the cash register.
1 2/27/02 RP 40.
Several minutes later, J.F. went to the back of the restaurant. After returning inside, he left again for the back of the restaurant. There, he met up with Morales and they briefly spoke. He was returning from making a deposit with Bank of America. He asked if he wanted a “blow job” and to have sexual intercourse with him. He told him to meet him outside at 5:30 p.m. near the Bank of America after his shift ended. J.F. rejoined W.P. inside the restaurant. The boys then left the restaurant and walked about twenty feet to a place where they could see if the bus was coming. While waiting there, J.F. told W.P. what had happened between him and the defendant.
2 2/27/02 RP 46.
Approximately ten to fifteen minutes later, Morales walked past the boys and nodded for them to follow him. They went with him to his apartment, which was a few blocks away. He did not say anything to them, and they did not say anything to him on the way to the apartment. Once inside, he whispered, “come here”, unbuttoned his blouse and began to fondle J.F.’s genitals through his pants. He fondled W.P.’s genitals for a second before he backed away and stood near the apartment’s entrance until he and J.F. left. He said he was going to leave, but the defendant shook his head. Morales unzipped J.F.’s pants and performed fellatio. After several minutes, J.F. stopped Morales and he and W.P. left the apartment.
3 2/26/02 RP 62.
The State charged Morales with third degree rape of a child, third degree child molestation, and communication with a minor for immoral purposes. Although he had a translator throughout the proceedings, Morales testified that he understood and spoke some English. He has lived in the United States for nine to ten years and has worked for the Queen Anne McDonald’s for six or seven of those years. A jury convicted him of communication with a minor for immoral purposes. It acquitted him of the child molestation charge, and there was a hung jury on the rape of a child charge.