2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-7-2013

Bruno Silva v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1167

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"Bruno Silva v. Attorney General United States" (2013). 2013 Decisions. Paper 855.

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CLD-216 NOT PRECEDENTIAL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
2

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 
3

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 
4

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.