Salviejo-Fernandez v. Gonzales

• Decision Date: 31 July 2006
• Docket Number: No. 04-76383.,04-76383.
• Citation: 455 F.3d 1063
• Parties: Philander SALVIEJO-FERNANDEZ, aka Philander Salviejo, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

455 F.3d 1063

Philander SALVIEJO-FERNANDEZ, aka Philander Salviejo, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-76383.

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 2006.^*

Filed July 31, 2006.

Philander F. Salviejo, San Ysidro, CA, for the petitioner, pro se.

Jennifer L. Lightbody, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A19-193-784.

Before: PREGERSON and LEAVY, Circuit Judges, and BEISTLINE,^** District Judge.

LEAVY, Circuit Judge:

Philander Salviejo-Fernandez (Salviejo), a native and citizen of the Philippines, petitions pro se for review of the Board 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 conviction 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 permanent resident on August 20, 1969. On March 24, 2001, he was convicted of maintaining a place for selling or using controlled 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 judgment 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,

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 consideration 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 bifurcates 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 cancellation of removal because it was an aggravated felony conviction. Salviejo appealed the IJ's decision to the BIA. The BIA sustained the appeal and reversed the IJ, concluding that Salviejo's conviction under § 11377 was not an aggravated felony 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 cancellation of removal.

At the second hearing, DHS asserted and the IJ agreed that Salviejo's § 11366 conviction constituted an aggravated felony barring cancellation of removal. Salviejo appealed to the BIA. The BIA held that the § 11366 conviction was analogous to a federal conviction under 21 U.S.C. § 856 and, therefore, 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

Salviejo contends that his due process rights were violated 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 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 indicates 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).

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 contention that the Immigration and Naturalization Service (INS) had violated his due process rights when it relied on a conviction that was not included in the NTA to deny a waiver of inadmissability under former INA § 212(c), previously codified at 8 U.S.C. § 1182(c):

The . . . conviction was not presented as a substantive 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 possibility that the INS would try to rely on his conviction to bar him from relief.

Id. at 351 (citations and footnotes omitted); see also Aalund v. Marshall, 461 F.2d 710 (5th Cir.1972).

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

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 Substances 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) constitutes 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 Controlled 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).

We use the two-step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a conviction 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 compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)." Id. (citation and quotation omitted). "Under this categorical approach, an offense qualifies 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...