           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                                                         [DO NOT PUBLISH]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
                      ________________________

                            No. 15-14189
                        Non-Argument Calendar
                      ________________________

                        Agency No. A098-940-008



SEEMA PATEL,

                                                                      Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (October 21, 2016)

Before HULL, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:
               Case: 15-14189     Date Filed: 10/21/2016    Page: 2 of 3


       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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