Salviejo-Fernandez v. Gonzales

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).