2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-22-2010

Dorival Da Silva v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1871

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Recommended Citation

"Dorival Da Silva v. Atty Gen USA" (2010). 2010 Decisions. Paper 1679.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1871

___________

DORIVAL LUIS DA 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. A028-957-769)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 10, 2010

Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: March 22, 2010 )

___________

OPINION

___________

PER CURIAM

Dorival Luis Da Silva, a citizen of Brazil, entered the United States without

inspection on March 28, 1988. The Government served him with an order to show cause
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the very next day (March 29, 1988). When Da Silva did not appear for his hearing before

an Immigration Judge (“IJ”) the following August, the order to show cause was returned

to the agency and his case was administratively closed. 

In February 2006, Da Silva, represented by counsel, moved to recalendar

proceedings so that he could “apply for cancellation of removal.” R. 97. Da Silva, with

his counsel, first appeared before the IJ in April 2006, and conceded the charge of

removability. His counsel indicated that Da Silva wished to seek cancellation of removal

or suspension of deportation, but he did not present an application. At that time, the IJ

notified Da Silva’s counsel that he was to present “[a]ny and all applications” at the next

appearance or “they[] [would] be abandoned.” R. 50. 

Subsequently, Da Silva, through his counsel, filed an application for suspension of

deportation (not cancellation of removal) and an application for voluntary departure. He

appeared before the IJ in May 2007 without having filed any documents in support of his

suspension application. The Government opposed the application because Da Silva, who

received an order to show cause one day after his entry into the United States, did not

accrue the seven years of continuous presence necessary to qualify for suspension of

deportation (under the stop-time rules). Da Silva’s counsel’s response was to register

surprise at the Government’s position and to suggest that, had he known sooner, he would

have requested that the Government “repaper” Da Silva so that he would be eligible for
 Repapering is the process by which the Government terminates the order to show 1

cause and issues a new notice to appear in cases which are not administratively final. 

See Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247 n.4 (3d Cir. 2005). As Da Silva

explains, in his case repapering would serve to change the date that would interrupt Da

Silva’s presence in the United States. Appellant’s Br., 8 n.1. If the date were changed, he

potentially would be eligible for cancellation of removal. 

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cancellation of removal. The IJ stated on the record that he was denying a request for a 1

continuance, to the extent that Da Silva’s counsel could be seen to be requesting one. The

IJ then denied the suspension application because Da Silva could not show the requisite

seven years of continuous presence in the United States. The Board of Immigration

Appeals (“BIA”) dismissed Da Silva’s subsequent appeal.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We exercise plenary review

over the legal question Da Silva raises, see Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d

Cir. 2002), namely whether the IJ violated his due process rights by declining to continue

his case. 

Upon review, we conclude that Da Silva’s due process rights were not violated in

the agency proceedings. First, it is not even clear that Da Silva’s counsel requested a

continuance at Da Silva’s merits hearing. To the extent that he requested a continuance,

the denial of the continuance was not a due process violation. As the BIA emphasized,

the burden was on Da Silva to prove that he was eligible for suspension of deportation. 

He, or rather, his counsel, should have realized long before the Government brought it to

his attention that Da Silva was not eligible for suspension of deportation. As the IJ noted,
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it is well established that the service of an order to show cause stops the accrual of time

that counts toward the necessary seven years of continuous presence for suspension

eligibility. See In re Nolasco, 22 I&N Dec. 632, 635 (BIA 1999). A 10-day or two-week

period for response to the Government’s argument would not have changed the facts of

his case (or the choice of seeking relief for which Da Silva was not eligible).

Da Silva also makes the argument that he would have sought repapering if given

more time. Although the BIA stated that there is no evidence in the record that Da Silva

has a qualifying relative for cancellation, there is his self-reported information that he has

two children who are United States citizens. R. 80. However, there is no evidence in the

record that otherwise supports his assertion that he would have been granted cancellation

of removal if his case had been repapered. See 8 U.S.C. § 1229b(b)(1)(D) (requiring a

showing “that removal would result in exceptional and extremely unusual hardship” to a

United States citizen child). Also, as the BIA noted, there appears to have been no effort

by his counsel to have the case repapered, even while the case was on administrative

appeal. Moreover, there is no indication that the Government would be willing to repaper

the case. For these reasons, the BIA was not wrong when it concluded that Da Silva

could not show prejudice from any denial of a continuance. See Khan v. Attorney Gen.

of the United States, 448 F.3d 226, 236 (3d Cir. 2006) (holding that a petitioner cannot

show prejudice when he presents only a speculative possibility that he could be found

eligible to remain in the country). In the absence of prejudice, there is no due process
violation. See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003).

For these reasons, we will deny the petition for review. 

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