[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15750 ELEVENTH CIRCUIT
JUNE 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A078-741-716
HUSSEIN ABDUAL HADI AHMAD AL-SHISHANI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 29, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Hussein Abdual Hadi Ahmad Al-Shishani, proceeding pro se,
seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order finding him removable, dismissing his
application for asylum, and denying both his application for withholding of
removal under the Immigration and Nationality Act (“INA”) and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”).
On appeal, Al-Shishani argues, first, that we should waive the one-year
deadline for filing an asylum application, due to extraordinary circumstances.
Second, Al-Shishani argues that his hearing before the IJ was fundamentally unfair
because (i) the IJ was biased against him; (ii) he was not notified of a change in the
asylum hearing date; (iii) he was not properly served with a notice to appear
(“NTA”); (iv) he was physically and mentally ill during the hearing; and, (v) the
interpreter was inadequate. Third, he challenges the BIA’s denial of his second
motion to extend the briefing deadline and its refusal to accept his late-filed brief.
Finally, he challenges the IJ’s adverse credibility finding and the denial of his
withholding of removal and CAT claims.
I.
We review our subject matter jurisdiction de novo. Frech v. U.S. Att’y Gen.,
491 F.3d 1277, 1280 (11th Cir. 2007). An alien can apply for asylum if he
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“demonstrates by clear and convincing evidence that the application has been filed
within [one] year after the date of the alien's arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). The BIA may consider a late application “if the alien
demonstrates . . . either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within [one year].” 8 U.S.C. § 1158(a)(2)(D).
Section 1158(a)(3), however, divests us of jurisdiction to review any such
determination. 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review
any determination . . . under paragraph (2).”); Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003). In addition, we have held that § 106(a)(1)(A)(ii)
of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, which
amended the INA to provide for appellate jurisdiction over “constitutional claims
or questions of law,” did not affect our prior precedent addressing our jurisdiction
to review untimely applications. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d
954, 957 (11th Cir. 2005) (per curiam); 8 U.S.C. § 1252(a)(2)(D).
Here, Al-Shishani did not file his asylum application for sixteen years, and
neither the IJ nor the BIA found that he had demonstrated an extraordinary
circumstance to warrant such a delay. Because we lack jurisdiction to consider Al-
Shishani’s untimely asylum claim, we dismiss his petition in this respect.
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II.
As noted above, we review our subject matter jurisdiction de novo. Frech,
491 F.3d at 1280. Furthermore, we “must inquire into subject matter jurisdiction
sua sponte whenever it may be lacking.” Hernandez v. U.S. Att’y Gen., 513 F.3d
1336, 1339 (11th Cir. 2008) (per curiam), cert. denied, 129 S. Ct. 44 (2008).
“[A]bsent a cognizable excuse or exception, we lack jurisdiction to consider a
claim raised in a petition for review unless the petitioner has exhausted his
administrative remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (internal quotation marks
and citation omitted). This requirement ensures that the BIA has a full opportunity
to consider “the niceties and contours of the relevant arguments.” Id. at 1250.
While constitutional challenges to the INA procedures and some due process
claims may not require exhaustion if the BIA did not “have the power to adjudicate
those claims,” where the BIA can remedy the constitutional claim, “the exhaustion
requirement applies with full force.” Sundar v. INS, 328 F.3d 1320, 1325 (11th
Cir. 2003) (holding that an alien should have exhausted his due process claim that
the IJ’s and BIA’s application of an immigration statute violated the Constitution
because “[i]t was within the BIA’s authority to reconsider and change its
decision”).
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When jurisdiction is present, we review constitutional challenges de novo.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam). “[T]he
Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 1449 (1993). Accordingly,
aliens must receive “notice and an opportunity to be heard in their removal
proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th
Cir. 2001). To prevail on a due process challenge, however, an alien must show
substantial prejudice – namely, that the outcome would have differed “in the
absence of the alleged procedural deficiencies.” Patel v. U.S. Att’y Gen., 334 F.3d
1259, 1263 (11th Cir. 2003).
We lack jurisdiction over Al-Shishani’s claims that the IJ was biased against
him and that he was not notified of a change in the asylum hearing date because he
did not exhaust these arguments in his notice of appeal to the BIA. These claims
constitute due process claims within the scope of the BIA’s authority. It was
within the BIA’s authority to review the transcript of the asylum hearing,
determine whether the IJ’s actions demonstrated bias against Al-Shishani and in
favor of the government, or that he did not receive adequate notice of the date
change, and if so, to remand the matter for a new hearing. Accordingly, we
dismiss his petition in this respect.
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With regard to Al-Shishani’s remaining due process claims – that he was not
properly served with a NTA, that he was ill during the asylum hearing, and that his
interpreter was inadequate – he has failed to show how these alleged deficiencies
prejudiced his case. First, he did, in fact, appear at the initial removal proceeding.
Second, the IJ granted at least six continuances during the ensuing ten months
before the asylum hearing to ensure that Al-Shishani had sufficient time to prepare
his case. Al-Shishani has not explained what he would have done differently but
for his illness. Finally, he has not identified any specific mistranslations. Thus, we
deny Al-Shishani’s petition in this respect.
III.
“[N]o court shall have jurisdiction to review . . . any other decision or action
of the Attorney General . . . the authority for which is specified under this
subchapter to be in the discretion of the Attorney General. . . .” 8 U.S.C.
§ 1252(a)(2)(B)(ii). “The phrase ‘specified under this subchapter’ refers to
subchapter II of Chapter 12, 8 U.S.C. §§ 1151-1378.” Zafar v. U.S. Att’y Gen.,
461 F.3d 1357, 1361 (11th Cir. 2006).
By contrast, we have jurisdiction to review discretionary decisions which are
governed by federal regulations. Id. Such decisions are reviewed for abuse of
discretion. Id. at 1364. The BIA abuses its discretion when its decision is arbitrary
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and capricious. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th
Cir. 2008) (citation omitted).
Under the federal regulations, an alien in custody generally has 21 days in
which to file a brief to the BIA, but, “upon written motion, [the BIA] may extend
the period for filing a brief or a reply brief for up to 90 days for good cause
shown.” 8 C.F.R. § 1003.3(c)(1). Furthermore, “[i]n its discretion, the [BIA] may
consider a brief that has been filed out of time.” Id. “In the interests of fairness
and the efficient use of administrative resources,” extension requests are
disfavored. See BIA Practice Manual, § 4.7(c)(i). Accordingly, it is the BIA’s
policy to grant a first briefing extension, but to only grant second requests “in rare
circumstances.” Id. at § 4.7(c)(i)(A). Likewise, the BIA only will consider
allowing a late-filed brief if it is accompanied by a motion that “set[s] forth in
detail the reasons for the untimeliness” and is supported by “affidavits,
declarations, or other evidence.” See Id. at § 4.7(d). Even then, it “rarely”
considers the motion. Id.
As an initial matter, we have jurisdiction to review denials of motions to
extend the briefing deadline because they are governed by the federal regulations.
Nevertheless, the BIA did not abuse its discretion by denying Al-Shishani’s second
request to extend the briefing deadline. The BIA’s policy of denying second
requests “in the interests of fairness and the efficient use of administrative
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resources” is not arbitrary and capricious, and Al-Shishani has failed to show how
his request satisfied the “rare circumstances” exception. Likewise, the BIA did not
abuse its discretion by refusing to accept Al-Shishani’s untimely brief because its
policy of requiring petitioners to explain the reasons for the untimeliness in a
motion supported by evidence is not arbitrary and capricious. Moreover, the
record does not reflect that he filed such a motion. Accordingly, we deny the
petition in this respect.
IV.
Where the BIA addresses, sua sponte, issues – such as the propriety of an
adverse credibility finding, or the denial of withholding of removal and CAT
claims on the merits – that an alien does not exhaust in his notice of appeal or
supporting brief, we “cannot say the BIA fully considered the petitioner’s claims,
as it had no occasion to address the relevant arguments. . . .” Amaya-Artunduaga,
463 F.3d at 1250-51. Accordingly, we lack jurisdiction to review such arguments
on appeal. Id.
Here, the BIA addressed the IJ’s adverse credibility determination and the
substantive denial of Al-Shishani’s withholding of removal and CAT requests sua
sponte, but we cannot say that it fully considered the relevant arguments.
Accordingly, we lack jurisdiction to review these unexhausted issues on appeal,
and we dismiss the petition in this respect.
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V.
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we dismiss in part and deny in part the petitioner’s petition for
review.
PETITION DISMISSED IN PART, DENIED IN PART.
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