Da Silva v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 31, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60599
Summary Calendar
JOAO VIEIRA DE ANDRADE DA SILVA, also known as Joao Dasilva,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A46 150 385
--------------------
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Cape Verde citizen Joao Vieira De Andrade Da Silva appeals
from the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from the removal order issued by the
Immigration Judge (IJ). Da Silva contends that Immigration and
Customs Enforcement (ICE) did not present adequate documentation
of his crack cocaine conviction; that the stop-time rule of 8
U.S.C. § 1229b(d)(1) is inapplicable to him because his
conviction did not result in a sentence of more than six months
of imprisonment; that the BIA’s interpretation of 8 U.S.C.

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No. 06-60599
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§ 1182(a) is arbitrary and capricious; that the BIA’s statutory
interpretation renders his removal an abuse of discretion; that
his removal would constitute a fundamental miscarriage of
justice; that he is entitled to cancellation of removal under the
International Covenant for Civil and Political Rights (ICCPR) and
other customary international law; that his case implicates the
Fourth, Fifth, Sixth, and Eighth Amendments; and that he was
deprived of an adequate understanding of his proceeding before
the IJ because no interpreter was appointed for him.
Counsel conceded that Da Silva had been convicted of a crack
cocaine offense. That concession is binding on Da Silva. See
Matter of Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986).
Moreover, the record contains adequate evidence of Da Silva’s
conviction.
The statutory provision on which Da Silva relies for his
contention that the stop-time rule does not apply to him is
applicable only to crimes of moral turpitude; it is inapplicable
to controlled substance offenses. See § 1182(a)(2)(A)(ii).
Because Da Silva’s February 24, 2003, offense occurred less than
seven years after his June 13, 1997, admission to the United
States, he is ineligible for cancellation of removal. See
§ 1229b(a), (d)(1). The BIA’s application of the relevant
statutes to Da Silva’s case was straightforward and consistent
with the expressed intent of Congress. See Chevron U.S.A., Inc.
v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984), and

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No. 06-60599
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therefore was not arbitrary and capricious. Moreover, the gross
miscarriage of justice standard is inapplicable to petitions
seeking direct review of removal orders. See generally,
Ramirez-Molina v. Ziglar, 436 F.3d 508, 514 (5th Cir. 2006).
It is unclear whether the BIA had jurisdiction to review
Da Silva’s ICCPR argument. In any event, we cannot grant him
relief on the basis of the ICCPR. See Martinez-Lopez v.
Gonzales, 454 F.3d 500, 502-03 (5th Cir. 2006).
Da Silva has failed to brief any arguments arising under the
Fourth, Fifth, Sixth, or Eighth Amendments. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). He failed to exhaust his claim that he was deprived of an
adequate understanding of his proceeding before the IJ because no
interpreter was appointed. See Goonsuwan v. Ashcroft, 252 F.3d
383, 390-91 (5th Cir. 2001).
PETITION DENIED.

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