Philander Salviejo-Fernandez, AKA Philander Salviejo v. Alberto R. Gonzales, Attorney General

PREGERSON, Circuit Judge,

dissenting:

This case presents two important questions of first impression. First, the majority holds that a Notice to Appear need not charge all relevant criminal conduct, despite a DHS regulation to the contrary. See Maj. Op. at 1066. Second, it also concludes after only sparse analysis that California Health and Safety Code section 11366, that prohibits opening or maintaining a place for unlawfully selling or using a controlled substance, is categorically an aggravated felony. See Maj. Op. at 1067-68. Because I disagree with the majority’s legal analysis and its harsh conclusion that removal is appropriate for Philander Sal-viejo, 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 country, 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 violation of law.” 8 C.F.R. § 1003.15 (b), (b)(3) (emphasis added). Interpreting this language, the majority holds that “due process does not require inclusion of charges in the N[otiee] [to] A[ppear] that are not grounds for removal but are grounds for denial of relief from removal.” Maj. Op. at 1066. The majority 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 counterin-tuitive conclusion. Although our sister circuits held that “notice was neither statutorily nor constitutionally mandated,” both courts conceded that “it would have been better for the INS to have given ... advance notice in 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 “virtually 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).

*1069 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 1066. 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 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 himself.

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 unambiguous language of that regulation. Accordingly, I respectfully dissent.

B. Aggravated Felony

The majority holds that Salviejo is barred from cancellation of removal because his state law drug conviction is an aggravated felony for immigration purposes because it is punishable as a felony under federal drug laws. See Maj. Op. at 1067. I do not take issue with the majority’s statement of the law and its understanding of the Taylor approach. But I disagree with the majority’s hasty conclusion that the full range of conduct covered in California Health and Safety Code section 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 purpose 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 difference between the two is that the federal statute requires that a person knowingly open or maintain any place, while the California statute codifies no mens rea for that element. See Maj. Op. at 1067. The majority concludes that the difference is immaterial because “there is no such thing as an unknowing purpose.” Maj. Op. at 1067.

The majority’s error is in its failure to consider the importance 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 particular 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 *1070 deliberately assigns a different mens rea to each element. This is because a building owner can be convicted 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 “knowledge” 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 , 118 S.Ct. 1822 , 140 L.Ed.2d 958 (1998).

In contrast, the California offense is considerably broader. If a renter were to have the purpose of using a controlled substance, 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 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 criminal activity.

Contrary to the majority’s conclusion, the difference between the two crimes is significant. 3 The full range of conduct 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 violation 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 aggravated 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.

. 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.

. Although section 11366.5 of the California Health and Safety Code separately creates liability for owners who knowingly make space available for the unlawful manufacture, storage, or distribution of any controlled substance, that section does not include liability for an owner who makes space available for drug use. Instead, it is section 11366 — the section 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, 69 Cal.App.4th 1100 , 82 Cal.Rptr.2d 128, 129 (1999) (quoting People v. Green, 200 Cal. App.3d 538 , 246 Cal.Rptr. 164, 167 (1988)).

. 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).