Salviejo-Fernandez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILANDER SALVIEJO-FERNANDEZ, 
aka Philander Salviejo,
No. 04-76383
Petitioner,
v.  Agency No.
A19-193-784
ALBERTO R. GONZALES, Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2006*
Pasadena, California
Filed July 31, 2006
Before: Harry Pregerson and Edward Leavy, Circuit Judges,
and Ralph R. Beistline,** District Judge.
Opinion by Judge Leavy;
Dissent by Judge Pregerson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Ralph R. Beistline, United States District Judge for
the District of Alaska, sitting by designation.
8503
8506 SALVIEJO-FERNANDEZ v. GONZALES
COUNSEL
Philander F. Salviejo, San Ysidro, California, for the peti-
tioner, pro se.
Jennifer L. Lightbody, U.S. Department of Justice, Washing-
ton, DC, for the respondent.
OPINION
LEAVY, Circuit Judge:
Philander Salviejo-Fernandez (Salviejo), a native and citi-
zen of the Philippines, petitions pro se for review of the Board
SALVIEJO-FERNANDEZ v. GONZALES 8507
of Immigration Appeals’ (BIA) dismissal of his appeal of the
immigration judge’s (IJ) decision finding him ineligible for
cancellation of removal. The BIA held that Salviejo’s convic-
tion under Cal. Health and Safety Code § 11366 for opening
or maintaining a place for the purpose of unlawfully selling
a controlled substance was an aggravated felony barring the
relief of cancellation of removal under 8 U.S.C.
§ 1229b(a)(3). We have jurisdiction under 8 U.S.C. § 1252
and, after de novo review, we deny the petition.
FACTS AND PRIOR PROCEEDINGS
Salviejo was admitted to the United States as a legal perma-
nent resident on August 20, 1969. On March 24, 2001, he was
convicted of maintaining a place for selling or using con-
trolled substances in violation of Cal. Health & Safety Code
§ 11366, and, on March 7, 2002, he pled guilty to possession
of a controlled substance in violation of Cal. Health & Safety
Code § 11377.
On April 13, 2003, the Department of Homeland Security
(DHS) issued a Notice to Appear (NTA), charging Salviejo
with being removable under 8 U.S.C. § 1227(a)(2) based on
his § 11377 conviction. The NTA alleged that this conviction
constituted an aggravated felony under 8 U.S.C. § 1227(a)(2)
(A)(iii) and a conviction relating to a controlled substance
under 8 U.S.C. § 1227(a)(2)(B)(i).
Salviejo applied for cancellation of removal. A hearing was
held on the charge of removeability and the application for
cancellation of removal. At the hearing, the government
sought to introduce Exhibit 4, which was an abstract of judg-
ment showing both the § 11377 and the § 11366 convictions.
Salviejo objected on the grounds that the § 11366 conviction
was not mentioned in the NTA. The IJ stated, “Yes, that’s not
relevant to anything here today.”
In his oral decision the IJ noted,
8508 SALVIEJO-FERNANDEZ v. GONZALES
Counsel pointed out that the 11366 was not being
charged or dealt with in the NTA, and he didn’t want
it to have an adverse affect on his client for purposes
of relief, because he was asserting it was not an
aggravated felony.
The Court held that the Court was not taking the
11366 conviction set forth in Exhibit 4 into consider-
ation for any purpose as it related to the allegations
charged against the respondent in [the NTA], or on
the grounds of deportability as it related to those set
forth in [the NTA].
The Court pointed out the way the Court bifur-
cates the hearings, that if the Service is going to
assert that it’s an aggravated felony, that would bar
relief depending on how the Court rules whether this
conviction for 11377 . . . is an aggravated felony or
not. We would deal with it at that time.
The IJ then found that Salviejo was (1) removable because
the § 11377 conviction was both an aggravated felony and a
controlled substance conviction1 and (2) ineligible for cancel-
lation of removal because it was an aggravated felony convic-
tion. Salviejo appealed the IJ’s decision to the BIA. The BIA
sustained the appeal and reversed the IJ, concluding that Sal-
viejo’s conviction under § 11377 was not an aggravated fel-
ony because it was not an “illicit trafficking” offense within
the meaning of the 8 U.S.C. § 1101(a)(43)(B) and remanded
for the IJ to consider whether Salviejo was eligible for cancel-
lation of removal.
1
The definition of aggravated felony under 8 U.S.C. § 1101(a)(43)(B)
does not include all controlled substance convictions covered by 8 U.S.C.
§ 1227(a)(2)(B), but only includes “illicit trafficking in a controlled sub-
stance (as defined in section 802 of Title 21), including a drug trafficking
crime (as defined in section 942(c) of Title 18.” 8 U.S.C. § 1101(a)
(43)(B).
SALVIEJO-FERNANDEZ v. GONZALES 8509
At the second hearing, DHS asserted and the IJ agreed that
Salviejo’s § 11366 conviction constituted an aggravated fel-
ony barring cancellation of removal. Salviejo appealed to the
BIA. The BIA held that the § 11366 conviction was analo-
gous to a federal conviction under 21 U.S.C. § 856 and, there-
fore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(B).
Therefore, the BIA dismissed the appeal.
Salviejo timely petitioned for review.
JURISDICTION
We have jurisdiction to review the petition under 8 U.S.C.
§ 1252 as amended by § 106(a) of the REAL ID Act of 2005,
Pub. L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119 Stat.
231, 310 (2005). See Notash v. Gonzales, 427 F.3d 693, 695-
96 (9th Cir. 2005). While we have no jurisdiction to review
“any final order of removal against an alien who is removable
by reason of having committed a criminal offense,” including
a conviction relating to a controlled substance, 8 U.S.C.
§§ 1252(a)(2)(C) and 1227(a)(2)(B), we are not barred from
hearing the constitutional claims or questions of law raised in
Salviejo’s petition. 8 U.S.C. § 1252(a)(2)(D).
ANALYSIS
A. Due Process
[1] Salviejo contends that his due process rights were vio-
lated when the BIA found him ineligible for cancellation of
removal based on his § 11366 conviction because it was not
alleged in the NTA. We review due process claims de novo.
See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).
The NTA served on an alien in removal proceedings must
contain “the nature of the proceedings against the alien,” the
“legal authority under which the proceedings are conducted,”
the “acts or conduct alleged to be in violation of the law,” and
the “charges against the alien and the statutory provisions
8510 SALVIEJO-FERNANDEZ v. GONZALES
alleged to have been violated.” 8 U.S.C. § 1229(a)(1); see
also 8 C.F.R. § 1003.15(b) & (c). At anytime during the
removal proceedings “additional or substituted charges of
inadmissibility and/or deportability and/or factual allegations
may be lodged by the [INS] in writing” and must be served
on the alien. 8 C.F.R. § 1240.10. Although the government
bears the burden of proof with respect to any conviction that
supports a charge of removability, 8 U.S.C. § 1229a(c)(3), an
alien who applies for cancellation of removal bears the burden
of demonstrating that he is eligible for such relief. 8 U.S.C.
§ 1229a(4)(A)(I); 8 C.F.R. § 1240.8(d). “If the evidence indi-
cates that one or more of the grounds for mandatory denial of
the application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that
such grounds do not apply.” 8 C.F.R. § 1240.8(d) (2006).
[2] Both the Second and Fifth Circuits have held that due
process does not require that the NTA include a conviction
that is not a ground of removability but is a ground for denial
of relief from removal. In Brown v. Ashcroft, 360 F.3d 346
(2d Cir. 2004), the Second Circuit rejected petitioner’s con-
tention that the Immigration and Naturalization Service (INS)
had violated his due process rights when it relied on a convic-
tion that was not included in the NTA to deny a waiver of
inadmissability under former INA § 212(c), previously codi-
fied at 8 U.S.C. § 1182(c):
The . . . conviction was not presented as a substan-
tive ground supporting the INS’s contention that
Brown could be removed. Rather, it was presented as
a response to Brown’s defense to removability — the
contention that he was eligible for section 212(c)
relief. On this defense, Brown had the burden of
proof, and had to at least have been aware of the pos-
sibility that the INS would try to rely on his convic-
tion to bar him from relief.
Id. at 351 (citations and footnotes omitted); see also Aalund
v. Marshall, 461 F.2d 710 (5th Cir. 1972).
SALVIEJO-FERNANDEZ v. GONZALES 8511
[3] We join the Second and Fifth Circuits and hold that due
process does not require inclusion of charges in the NTA that
are not grounds for removal but are grounds for denial of
relief from removal. Thus, we reject Salviejo’s due process
claim.
B. Aggravated Felony
[4] Salviejo asserts that the BIA erred when it held that his
conviction under Cal. Health & Safety Code § 11366 was
analogous to a federal conviction under the Controlled Sub-
stances Act, 21 U.S.C. § 856(a) and, therefore, an aggravated
felony. This court reviews de novo the legal question whether
a particular conviction constitutes an aggravated felony. Li v.
Ashcroft, 389 F.3d 892, 895 (9th Cir. 2004). A state drug
offense is an “aggravated felony” for immigration purposes
only if it would be punishable as a felony under federal drug
laws, or if it contains a trafficking element. Cazarez-Gutierrez
v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004). The parties do
not dispute that a conviction under 21 U.S.C. § 856(a) consti-
tutes a felony conviction. The penalty for violation of this
provision is a sentence of not more than 20 years, 21 U.S.C.
§ 856(b), which makes it a felony under federal law. United
States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir.
2003) (offense classified as a felony for purposes of the Con-
trolled Substances Act only if it is “punishable by more than
one year’s imprisonment under applicable state or federal
law.”). Their dispute concerns whether Salviejo’s § 11366
conviction is analogous to a conviction under 21 U.S.C.
§ 856(a).
[5] We use the two-step test set forth in Taylor v. United
States, 495 U.S. 575 (1990), to determine whether a convic-
tion is an “aggravated felony” under the INA. See Penuliar v.
Gonzales, 435 F.3d 961, 966 (9th Cir. 2006). First, we “look
to the statute under which the person was convicted and com-
pare its elements to the relevant definition of an aggravated
felony in 8 U.S.C. § 1101(a)(43).” Id. (citation and quotation
8512 SALVIEJO-FERNANDEZ v. GONZALES
omitted). “Under this categorical approach, an offense quali-
fies as an aggravated felony if and only if the full range of
conduct covered by the [statute of conviction] falls within the
meaning of that term.” Id. (citations and quotations omitted).
If the statute of conviction reaches both conduct that would
constitute an aggravated felony and conduct that would not,
we follow a “modified categorical approach.” See United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.
2002) (en banc).
The statute of conviction, Cal. Health & Safety Code
§ 11366, provides:
Every person who opens or maintains any place for
the purpose of unlawfully selling, giving away, or
using any controlled substance which is (1) specified
in subdivision (b), (c), or (e), or paragraph (1) of
subdivisions (1) of Section 11054, specified in para-
graph (13), (14), (15), or (20) of subdivision (d) of
Section 11054, or specified in subdivision (b), (c),
paragraph (1) or (2) of subdivision (d), or paragraph
(3) of subdivision (c) of Section 11055, or (2) which
is a narcotic drug classified in Schedule III, IV, or V,
shall be punished by imprisonment in the county jail
for a period of not more than one year or the state
prison.
[6] Under the federal Controlled Substances Act, it is
unlawful to “knowingly open, lease, rent, use, or maintain any
place, whether permanently or temporarily, for the purpose of
manufacturing, distributing, or using any controlled sub-
stance.” 21 U.S.C. § 856(a). A conviction for violation of
§ 856(a) requires proof that the defendant (1) knowingly (2)
opened, rented, used or maintained a place (3) for the purpose
of manufacturing, distributing, or using a controlled sub-
stance. See United States v. Basinger, 60 F.3d 1400, 1404 (9th
Cir. 1995).
SALVIEJO-FERNANDEZ v. GONZALES 8513
[7] Salviejo asserts that § 11366 does not contain the
“knowingly” element found in the federal statute. “The ele-
ments of the [§ 11366] offense are that the defendant (a)
opened or maintained a place (b) with a purpose of continu-
ously or repeatedly using it for selling, giving away, or using
a controlled substance.” People v. Hawkins, 21 Cal. Rptr. 3d
500, 503 (Cal. Ct. App. 2004) (citations omitted). To act
“with a purpose” is to “consciously desire” the result. United
States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir.
2000). In Gracidas-Ulibarry, we concluded that “purpose”
was the highest of four levels of culpable states of mind: pur-
pose, knowledge, recklessness, and negligence. “In general,
‘purpose’ corresponds to the concept of specific intent, while
‘knowingly’ corresponds to general intent.” Id. (citing United
States v. Bailey, 444 U.S. 394, 405 (1980); Model Penal Code
& Commentaries, § 2.02 cmt. at 233-34.) Thus, there is no
such thing as an unknowing purpose.
[8] Because a conviction under § 11366 requires that the
defendant act “with the purpose,” the full range of conduct
covered by § 11366 falls within the meaning of 21 U.S.C.
§ 856(a). Under the categorical approach, the BIA did not err
when it concluded that Salviejo’s § 11366 conviction consti-
tuted an aggravated felony.
PETITION FOR REVIEW DENIED.
PREGERSON, Circuit Judge, dissenting:
This case presents two important questions of first impres-
sion. First, the majority holds that a Notice to Appear need
not charge all relevant criminal conduct, despite a DHS regu-
lation to the contrary. See Maj. Op. at 8510. Second, it also
concludes after only sparse analysis that California Health and
Safety Code section 11366, that prohibits opening or main-
taining a place for unlawfully selling or using a controlled
8514 SALVIEJO-FERNANDEZ v. GONZALES
substance, is categorically an aggravated felony. See Maj. Op.
at 8512-13. Because I disagree with the majority’s legal anal-
ysis and its harsh conclusion that removal is appropriate for
Philander Salviejo, a long-term legal permanent resident, I
respectfully dissent.
Salviejo was born in the Philippines in 1951. At the age of
18, he lawfully immigrated to the United States; Salviejo was
admitted as a lawful permanent resident on August 20, 1969.
Salviejo married in 1973, and he and his wife have two
United States citizen children who are now thirty-two and
twenty-seven years old. After thirty-seven years in this coun-
try, Salviejo is threatened with removal from the country that
he has called home for more than two-thirds of his life.1
A. Due Process
“The . . . Notice to Appear [for a removal proceeding] must
also include . . . (3) The acts or conduct alleged to be in viola-
tion of law.” 8 C.F.R. § 1003.15(b), (b)(3) (emphasis added).
Interpreting this language, the majority holds that “due pro-
cess does not require inclusion of charges in the N[otice] [to]
A[ppear] that are not grounds for removal but are grounds for
denial of relief from removal.” Maj. Op. at 8511. The major-
ity dismisses the unambiguous language of the regulation out
of hand and reaches the conclusion that some allegedly
unlawful conduct need not be charged in the Notice to
Appear.
It is true that the Second and Fifth Circuits have come to
the same counterintuitive conclusion. Although our sister cir-
cuits held that “notice was neither statutorily nor constitution-
ally mandated,” both courts conceded that “it would have
been better for the INS to have given . . . advance notice in
1
I also observe that Salviejo proceeds before us without counsel.
Because Salviejo is a pro se petitioner, we should take the utmost care that
he gets a fair shake on appeal.
SALVIEJO-FERNANDEZ v. GONZALES 8515
writing.” Brown v. Ashcroft, 360 F.3d 346, 353 (2d Cir.
2004); see also Aalund v. Marshall, 461 F.2d 710, 712-13
(5th Cir. 1972). In disregarding what it had identified as the
“better” approach, the Second Circuit reasoned that charging
all unlawful conduct in the Notice to Appear “would prove
unmanageable for the government, as the variety of defenses
and strategies in removal proceedings is innumerable.”
Brown, 360 F.3d at 351 (internal quotations omitted).
I am not persuaded by the Second Circuit’s reasoning — or
the majority’s — that the government should not have to
charge all illegal conduct in the Notice to Appear. Far from
being “unmanageable,” the government would simply need to
put the alien on notice of the criminal convictions against
which the alien would have to defend. It would not be “virtu-
ally impossible” to foresee every defense to removal, Brown,
360 F.3d at 351; the government would simply have to charge
“[t]he acts or conduct alleged to be in violation of law.” 8
C.F.R. § 1003.15(b)(3).
It is axiomatic that due process require fair notice of
charges to enable the defendant to prepare a defense. See Zitto
v. Crabtree, 185 F.3d 930, 931-32 (9th Cir. 1999) (parolees);
Aponte v. Gomez, 993 F.2d 705, 708 (9th Cir. 1993) (criminal
defendants); Barnes v. Healy, 980 F.2d 572, 579 (9th Cir.
1992) (defendants in administrative action). This makes
sense: if an individual is going to be deprived of some right,
due process requires that the individual have an adequate
opportunity to mount a defense.
Here, the majority draws a distinction between unlawful
conduct that triggers removal and unlawful conduct that bars
affirmative relief from removal. See Maj. Op. at 8510. The
artificial distinction results is precisely the type of surprise
charges against which due process protects. In the instant
case, Salviejo was charged with removability for violating
California Health and Safety Code section 11377. After the
immigration judge’s removal order was reversed by the Board
8516 SALVIEJO-FERNANDEZ v. GONZALES
of Immigration Appeals, the government surprised Salviejo
on remand by claiming for the first time that he was ineligible
for cancellation of removal because of his conviction under
section 11366 that had not been charged in Salviejo’s Notice
to Appear. It is understandable that Salviejo was ill-equipped
to mount a defense to this unexpected new charge. Whether
the uncharged misconduct results in a finding of removability
or a bar from cancellation of removal, the outcome is the
same: Salviejo was not permitted adequately to defend him-
self.
The regulation states that the Notice to Appear must
include the “acts or conduct alleged to be in violation of the
law.” 8 C.F.R. § 1003.15(b)(3). I cannot join the majority in
adopting a rule in this circuit that plainly misreads the unam-
biguous language of that regulation. Accordingly, I respect-
fully dissent.
B. Aggravated Felony
The majority holds that Salviejo is barred from cancellation
of removal because his state law drug conviction is an aggra-
vated felony for immigration purposes because it is punish-
able as a felony under federal drug laws. See Maj. Op. at
8513. I do not take issue with the majority’s statement of the
law and its understanding of the Taylor approach. But I dis-
agree with the majority’s hasty conclusion that the full range
of conduct covered in California Health and Safety Code sec-
tion 11366 falls within the meaning of 21 U.S.C. § 856(a).
The two statutes are similar. Each imposes liability on a
person who (1) opens or maintains any place (2) for the pur-
pose of (3) selling, giving away, or using (4) any controlled
substance. See Cal. Health & Safety § 11366; 8 U.S.C.
§ 856(a). The majority recognizes that the only apparent dif-
ference between the two is that the federal statute requires that
a person knowingly open or maintain any place, while the Cal-
ifornia statute codifies no mens rea for that element. See Maj.
SALVIEJO-FERNANDEZ v. GONZALES 8517
Op. at 8512-13. The majority concludes that the difference is
immaterial because “there is no such thing as an unknowing
purpose.” Maj. Op. at 8513.
The majority’s error is in its failure to consider the impor-
tance of the different mentes reae that Congress deliberately
applied to the different elements of 21 U.S.C. § 856(a). See 1
Wayne R. LaFave, Substantive Criminal Law § 5.1(d) at 338
(2d ed. 2003) (noting “that the mental ingredients of a particu-
lar crime may differ with regard to different elements of the
crime”).
Under the federal offense, an individual must knowingly
open or maintain the place, for the purpose of selling, giving
away, or using a controlled substance. See 8 U.S.C. § 856(a).
The federal statute deliberately assigns a different mens rea to
each element. This is because a building owner can be con-
victed under this statute if the owner knowingly makes a place
available to someone else who has the purpose of using or
selling drugs. See United States v. Chen, 913 F.2d 183, 191
(5th Cir. 1990) (noting that section 856(a) “does not require
the person who makes the place available to others for drug
activity to possess the purpose of engaging in illegal activity;
the purpose in issue is that of the person renting or otherwise
using the place”). That is, a defendant owner may be liable
even though the owner exhibited no purposeful conduct.
Indeed, courts have focused on the importance of the “knowl-
edge” mens rea as to the first element to preclude a deliberate
ignorance theory of liability. See United States v. Soto-Silva,
129 F.3d 340, 344-45 (5th Cir. 1997), cert. denied, 523 U.S.
1130 (1998).
In contrast, the California offense is considerably broader.
If a renter were to have the purpose of using a controlled sub-
stance, satisfying the second element of the offense, any
owner who opened or maintained the place could be liable
under section 11366.2 Whereas under the federal law an
2
Although section 11366.5 of the California Health and Safety Code
separately creates liability for owners who knowingly make space avail-
8518 SALVIEJO-FERNANDEZ v. GONZALES
owner would only be liable if the owner knew of the crime,
under the California law an owner would be liable even if the
owner were reckless or negligent as to the existence of crimi-
nal activity.
Contrary to the majority’s conclusion, the difference
between the two crimes is significant.3 The full range of con-
duct covered by the California statute — including negligent
or reckless provision of a place for drug use — is not covered
by the federal statute. Accordingly, I would hold that a viola-
tion of California Health and Safety Code section 11366 is not
categorically an aggravated felony. Because the record is
incomplete as to whether Salviejo’s conviction is an aggra-
vated felony under the modified categorical approach, I would
remand this case for further development of the factual
record.
For the foregoing reasons, I respectfully dissent.
able for the unlawful manufacture, storage, or distribution of any con-
trolled substance, that section does not include liability for an owner who
makes space available for drug use. Instead, it is section 11366 — the sec-
tion that lacks the knowledge element — that makes an owner liable
“merely by providing a place for drug abusers to gather and share their
experience.” People v. Vera, 82 Cal. Rptr. 2d 128, 129 (Cal. Ct. App.
1999) (quoting People v. Green, 246 Cal. Rptr. 164, 167 (Cal. Ct. App.
1988)).
3
Indeed, we should not lightly conclude, as the majority does, that the
legislature’s inclusion of an additional element to a crime is mere surplus-
age. “[W]e strive to avoid constructions that render words meaningless.”
United States v. LSL Biotechnologies, 379 F.3d 672, 679 (9th Cir. 2004)
(citation omitted).