CLD-216                                                NOT PRECEDENTIAL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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