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Keywords

statutefelonydue process
statutefelonydue process

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Salviejo-Fernandez v. Gonzales

Facts

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.

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.

Issue

Whether the BIA erred in finding that Salviejo's conviction under Cal. Health & Safety Code 11366 constituted an aggravated felony barring cancellation of removal.

Whether the BIA erred in finding that Salviejo's conviction under Cal. Health & Safety Code 11366 constituted an aggravated felony barring cancellation of removal.

Rule

Due process does not require that the Notice to Appear include a conviction that is not a ground of removability but is a ground for denial of relief from removal. 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.

Due process does not require that the Notice to Appear include a conviction that is not a ground of removability but is a ground for denial of relief from removal. 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.

Analysis

The court applied the categorical approach to determine whether Salviejo's conviction under 11366 was analogous to a federal conviction under 21 U.S.C. 856(a). The court concluded that the elements of the state offense required purposeful action, which aligns with the knowing requirement of the federal statute, thus categorizing it as an aggravated felony.

The court applied the categorical approach to determine whether Salviejo's conviction under 11366 was analogous to a federal conviction under 21 U.S.C. 856(a). The court concluded that the elements of the state offense required purposeful action, which aligns with the knowing requirement of the federal statute, thus categorizing it as an aggravated felony.

Conclusion

The court denied the petition for review, affirming the BIA's decision that Salviejo's conviction constituted an aggravated felony.

The court denied the petition for review, affirming the BIA's decision that Salviejo's conviction constituted an aggravated felony.

Who won?

The government prevailed in the case because the court upheld the BIA's determination that Salviejo's conviction was an aggravated felony, which barred him from cancellation of removal.

The government prevailed in the case because the court upheld the BIA's determination that Salviejo's conviction was an aggravated felony, which barred him from cancellation of removal.

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