2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 216 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1167

___________ BRUNO SILVA ,

P etitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________ On Petition for Revie w of an Order of the Board of Immigration Appeals (Agency No. A 205

- 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 CURIAM2

Bruno Silva, a citizen of Brazil, petition s for review of a final order of th e Board of Immigration Appeals (“BIA” or “Board”) . On the G overnment‟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 ad mission 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 th e influence of a controlled dangerous substance . N.J. Stat. Ann § 2C:35

- 10(b). The Government charged Silva as removable for overstaying h is period of admission, 8 U.S.C. § 122 7(a)(1)(B), and for h aving been convicted of a controlled substance offense, 8 U.S.C. § 122 7(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 I mmigration J udge (“IJ”) denied the application, stating that Si lva “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 characte r during” the 10 years immediately preceding the date of the application). The B oard dismissed Silva‟s appeal, agreeing that his two drug convictions prevented him from establishing the requisite good moral character necessar y for cancellation of removal. 83

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 “relate s to a single offense of simple possessio n of 30 grams or less of marih uana).” Silva filed a ti mely 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 con cede. 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 pr esumption 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). B ecause there is no liberty interest at stake in an application for a discretionary form of relief , Silva does not have a cognizable procedural4

due process claim. United Sta tes v. Torres , 383 F.3d 92, 104

- 05 (3d Cir. 2004) ( holding that aliens do not have a due process interest in being consi d ered 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 ma rijuana) 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 u nder 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 s how 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 Salf i , 422 U.S. 749, 777 (1975))). For the foregoing reasons , we will grant the Government‟s motion and deny the petition for review.