Silva v. Attorney General of the United States

CLD-216 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1167
___________
BRUNO SILVA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-017-047)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted on the Respondent‟s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 25, 2013
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 7, 2013)
___________
OPINION
___________
PER CURIAM
Bruno Silva, a citizen of Brazil, petitions for review of a final order of the Board
of Immigration Appeals (“BIA” or “Board”). On the Government‟s motion, we will
summarily deny the petition for review.
Silva was admitted to the United States in 1995 as a visitor with authorization to
remain for six months. He overstayed his admission period. In July 2004, Silva was
convicted in a New Jersey municipal court of possession of a controlled dangerous
substance. N.J. Stat. Ann. § 2C:35-10(a). Three years later, in June 2007, Silva was
convicted in municipal court of being under the influence of a controlled dangerous
substance. N.J. Stat. Ann § 2C:35-10(b).
The Government charged Silva as removable for overstaying his period of
admission, 8 U.S.C. § 1227(a)(1)(B), and for having been convicted of a controlled
substance offense, 8 U.S.C. § 1227(a)(2)(B)(i). Proceeding pro se, Silva admitted the
factual allegations in the Notice to Appear and applied for cancellation of removal
pursuant to 8 U.S.C. § 1229b(b)(1). The Immigration Judge (“IJ”) denied the application,
stating that Silva “cannot show that he is a person of good moral character because of the
two drug convictions.” Id. (providing that a nonpermanent resident alien is ineligible for
cancellation of removal if, inter alia, he has not “been a person of good moral character
during” the 10 years immediately preceding the date of the application). The Board
dismissed Silva‟s appeal, agreeing that his two drug convictions prevented him from
establishing the requisite good moral character necessary for cancellation of removal. 8
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U.S.C. § 1101(f)(3) (prohibiting a finding of good moral character for individuals who
have committed a controlled substance offense, except as it “relates to a single offense of
simple possession of 30 grams or less of marihuana).”
Silva filed a timely pro se petition for review of the BIA‟s decision. Because Silva
is a criminal alien, we have jurisdiction to review only constitutional claims, “pure
questions of law,” and “issues of application of law to fact, where the facts are
undisputed and not the subject of challenge.” Kamara v. Att‟y Gen., 420 F.3d 202, 211
(3d Cir. 2005) (citation omitted).
In his pro se brief, Silva argues that his removal will result in exceptional and
extremely unusual hardship to his son. As the Government argues, this contention is
irrelevant because the Board did not deny relief on that basis. Instead, the BIA held that
Silva failed to meet the good moral character requirement because of his two controlled
substance convictions, a point which Silva appears to concede. He contends, however,
that the good moral character requirement of § 1101(f)(3) is unconstitutional because it
creates an “irrefutable presumption.” In particular, Silva asserts that he has a
“constitutional right to the opportunity to rebut the presumption that [he] lack[s] the
requisite good moral character despite [his] convictions.”
Cancellation of removal is a discretionary form of relief. Mendez-Reyes v. Att‟y
Gen., 428 F.3d 187, 189 (3d Cir. 2005). Because there is no liberty interest at stake in an
application for a discretionary form of relief, Silva does not have a cognizable procedural
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due process claim. United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004) (holding
that aliens do not have a due process interest in being considered for discretionary relief).
Moreover, we reject any attempt by Silva to challenge Congress‟ determination that
nonpermanent residents who commit a controlled substance offense (other than a single
offense of simple possession of 30 grams or less of marijuana) will lack the good moral
character necessary to warrant cancellation of removal. See DeSousa v. Reno, 190 F.3d
175, 184 (3d Cir. 1999) (holding that under the equal protection doctrine, “disparate
treatment of different groups of aliens triggers only rational basis review.”); see also
Romero-Ochoa v. Holder, -- F.3d --, 2013 WL 1442484, at *2 (9th Cir. Apr. 10, 2013)
(stating that “although the conclusive presumption [under § 1101(f)(7)] denies
individuals like [the petitioner] an opportunity to show that they possess the requisite
good moral character . . ., Congress could rationally conclude that „the expense and other
difficulties of individual determinations justified the inherent imprecision of a
prophylactic rule.‟” (quoting Weinberger v Salfi, 422 U.S. 749, 777 (1975))).
For the foregoing reasons, we will grant the Government‟s motion and deny the
petition for review.
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