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

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 Sal-viejo’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. §…

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…

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. Aep-ytb-yse. Before: PREGERSON and LEAVY, Circuit Judges, and BEISTLINE, ** District Judge. LEAVY, Circuit Judge: 1 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. §…