Case: 15-14189 Date Filed: 10/21/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14189
Non-Argument Calendar
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Agency No. A098-940-008
SEEMA PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(October 21, 2016)
Before HULL, WILLIAM PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Seema Patel seeks review of the BIA’s final order affirming the IJ’s in
absentia order of removal. Specifically, Patel argues that the BIA violated her due
process rights by failing to grant her an extension of time to file her brief, and in
rejecting her late-filed brief.
BIA regulations provide that “[i]n its discretion, the Board may consider a
brief that has been filed out of time.” 8 C.F.R. § 1003.3(c)(1). Thus, we review
the BIA’s decision not to consider a late-filed brief for abuse of discretion. See id.
The BIA abuses its discretion by acting arbitrarily or capriciously. Ali v. U.S. Att’y
Gen., 443 F.3d 804, 808 (11th Cir. 2006).
We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). We have held that “there is no
constitutionally protected right to discretionary relief.” See Zafar v. Att’y Gen.,
461 F.3d 1357, 1367 (11th Cir. 2006) (holding that immigration judges did not
violate aliens’ due process rights by not continuing their removal proceedings long
enough for them to meet all necessary requirements for adjustment of status).
Additionally, to show a denial of due process, an alien must establish that the
asserted error caused substantial prejudice. Lonyem, 352 F.3d at 1341-42.
Here, we cannot say that the BIA abused its discretion by refusing to grant
Patel an extension to file her brief, or in failing to consider her brief, which was
filed on March 26, 2014, past the February 21, 2014 deadline. See 8 C.F.R.
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§ 1003.3(c)(1). The BIA mailed a notice containing the briefing schedule to Patel,
and in that notice informed her not only of the deadline for filing a brief, but also
that her attorney’s Notice of Appearance had been rejected because the
accompanying form was incomplete. However, Patel and her attorney were clearly
aware of the deadline for filing a brief as her attorney filed a request for an
extension on February 18, 2014, three days prior to the February 21, 2014 briefing
deadline. The BIA did not act arbitrarily or capriciously in denying Patel’s request
for an extension, or in failing to consider Patel’s late-filed brief as she and her
attorney were aware of the filing deadline, but nonetheless filed a late brief. See
Ali, 443 F.3d at 808.
Second, the BIA did not violate Patel’s right to due process. Considering an
out-of-time brief is discretionary, and there is no constitutional right to
discretionary relief. See 8 C.F.R. § 1003.3(c)(1); Zafar, 461 F.3d at 1367. Thus,
the BIA did not violate Patel’s right to due process by rejecting and failing to
consider her brief, which was filed more than a month after the BIA declined to
extend the briefing schedule, and likewise, more than a month after the deadline
for filing her brief had passed. See Zafar, 461 F.3d at 1367. Based on the
foregoing, we must DENY Patel’s petition for review of the BIA’s discretionary
decision.
PETITION DENIED.
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