                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

RONALD M. ZETINO,                         
                            Petitioner,          No. 08-70390
                   v.
                                                 Agency No.
                                                 A094-175-859
ERIC H. HOLDER     JR., Attorney
General,                                           OPINION
                          Respondent.
                                          
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
            October 9, 2009—Pasadena, California

                     Filed February 18, 2010

   Before: Cynthia Holcomb Hall and Richard C. Tallman,
   Circuit Judges, and David M. Lawson,* District Judge.

                  Opinion by Judge Tallman;
                 Concurrence by Judge Lawson




  *The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                2539
2542                  ZETINO v. HOLDER




                        COUNSEL

Niels W. Frenzen, Esq., (argued), University of Southern Cal-
ifornia Law School Immigration Clinic, Los Angeles, Califor-
nia, for petitioner Zetino.

Sunah Lee, Esq., (argued), U.S. Department of Justice, Civil
Division/Office of Immigration Litigation, Washington, D.C.,
                       ZETINO v. HOLDER                     2543
Ronald E. LeFevre, Esq., Department of Homeland Security,
Office of the District Counsel, Los Angeles, California, for
respondent Attorney General Holder.


                          OPINION

TALLMAN, Circuit Judge.

   Ronald Zetino (“Zetino”), a native and citizen of El Salva-
dor, petitions for review of a Board of Immigration Appeals
(“BIA”) decision upholding an Immigration Judge’s (“IJ”)
denial of his applications for asylum and withholding of
removal. We must decide whether we have jurisdiction to
review for abuse of discretion the BIA’s discretionary denial
of a petitioner’s motion to accept an untimely brief. We hold
we lack jurisdiction over this part of the petition because there
is no meaningful standard against which to judge the agency’s
exercise of discretion. We deny the remaining challenges on
the merits.

                               I

   Zetino illegally entered the United States on December 5,
1989, at San Ysidro, California. Zetino was detained on May
1, 2001, and placed in removal proceedings on May 15, 2001.
He was charged with removability pursuant to Section
212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in
the United States without being admitted or paroled.

   At Zetino’s first removal hearing on May 31, 2001, the IJ
informed him of his right to counsel and right to call wit-
nesses on his behalf. The IJ also provided Zetino with a list
of free legal aid services. Zetino acknowledged those rights,
waived them, admitted to the allegations against him, and
conceded removability. Zetino informed the IJ that he feared
2544                   ZETINO v. HOLDER
persecution upon return to El Salvador, at which time the IJ
gave him an application for asylum. At a continued removal
hearing on June 11, 2001, Zetino did not submit an applica-
tion for asylum, but instead requested a continuance to find an
attorney. The IJ granted that request, noting that Zetino
claimed to have obtained an attorney who had decided not to
represent him “at the last minute.”

   Zetino’s next removal hearing took place on September 27,
2005, after an additional continuance during which he
remained incarcerated. At that hearing, the IJ once again
informed Zetino of his right to counsel, which Zetino
acknowledged. The IJ then granted Zetino yet another contin-
uance to obtain counsel. Zetino finally filed his application for
asylum on October 25, 2005.

   Zetino’s hearing on the merits of his asylum application
began on May 14, 2007. Zetino appeared pro se, apparently
unable to obtain counsel in the six years since his first hear-
ing. The IJ took testimony from Zetino, his mother, and his
sister.

   Zetino testified that he was afraid to return to El Salvador
because he had been told that in 1993 six members of his fam-
ily had been killed by gunfighters attempting to steal his
grandfather’s land. Zetino noted that this event took place
after his illegal arrival in the United States and that he only
found out about it through word of mouth. When the IJ asked
him to explain the motive for the murders, Zetino responded,
“Some farmers who supposedly . . . were my grandfather’s
friends and they wanted more land so they could cultivate on
that [sic] and my grandfather did not want to release the land
to them.” Zetino also testified that he feared gang members
would attempt to recruit or harm him. He stated simply,
“There are too many gang members. I don’t think that I will
be able to work there at [inaudible] with ease.”

  Zetino’s mother testified that masked gunmen had killed
members of her family for “revenge because of some proper-
                        ZETINO v. HOLDER                      2545
ties, some land [sic].” Zetino’s sister testified that she was not
in El Salvador at the time of the alleged killings.

   After taking testimony, the IJ rendered an oral decision in
which she determined Zetino had testified credibly but still
failed to demonstrate a well-founded fear of persecution based
on statutorily-protected grounds. The IJ ruled that Zetino
failed to establish a nexus between the murder of his relatives
or gang recruitment and a protected ground such as race, reli-
gion, nationality, membership in a particular social group, or
political opinion. As to the killing of his relatives, the IJ noted
that it “was clearly a personal dispute, if anything, amongst
the ones who wanted to cultivate the land next door . . . . This
is not a basis for asylum or withholding of removal under the
Act.”

   On September 6, 2007, Zetino filed a pro se Notice of
Appeal to the BIA stating that he disagreed with the IJ’s deci-
sion that “[he] didn’t prove [his] case.” Zetino’s Notice of
Appeal contained a well-articulated statement of his case. He
argued that his “fear of persecution and torture is based on the
assassination of [his] family members and relatives by 11
masked gunmen who assassinated them and who are still at
large.” He also stated that he feared “gang members who are
at large, who sell drugs and arms, who also hurt and rob peo-
ple like [him], because [he] also [has] tattoos (none gang-
related) and they would mistake [him] for being a rival gang
member.”

   On October 20, 2007, Zetino was transferred from the San
Pedro Detention Complex in Los Angeles, California, to the
South Texas Detention Complex in Pearsall, Texas. On Octo-
ber 23, 2007, the BIA issued a briefing schedule notifying
Zetino of a November 13, 2007, deadline to file an appellate
brief. Zetino properly notified the BIA of his move with a
change of address form on October 31, 2007, and as a result
the BIA granted him a filing extension from his original dead-
line of November 13, 2007, to November 30, 2007. Despite
2546                    ZETINO v. HOLDER
notice of the extension, Zetino did not file a brief before this
extended deadline.

   Five days after missing the filing deadline, on December 5,
2007, Zetino secured the representation of the University of
Southern California Law School Immigration Clinic. On
December 14, 2007, his counsel filed a Motion to Accept Late
Brief and Motion for Extension of Time requesting the BIA
accept a late brief or extend the filing deadline to “accommo-
date student exams and the ensuing winter break.” The BIA
found “the reasons stated by the respondent insufficient for
[it] to accept an untimely brief in [its] exercise of discretion.”
The BIA also denied the extension request “as it was received
after the expiration of the filing deadline.”

   Despite Zetino’s failure to properly file an appellate brief,
the BIA considered the merits of his application because he
had sufficiently articulated his challenges to the IJ’s decision
in his Notice of Appeal. The BIA subsequently upheld the IJ’s
determination on the merits. The BIA reasoned that neither
Zetino’s fear of “the eleven unidentified masked gunmen who
fatally shot his aunt, uncle, and at least three cousins in 1993
and who remain at large” nor his fear of “gang members
[who] might mistake him for a member of a rival gang
because he has tattoos” established a well-founded fear of
persecution “on account of his race, religion, nationality,
membership in a particular social group, or political opinion.”
The BIA supported its conclusion by noting,

    It is well-established that an asylum applicant’s fear
    of harm resulting from general conditions of vio-
    lence and civil unrest affecting the home country’s
    populace as a whole does not constitute a “well-
    founded fear of persecution” within the meaning of
    the Act.

Furthermore, the BIA reasoned that Zetino’s fear of harm by
criminals or gangs did not “establish that he belongs to a ‘par-
                           ZETINO v. HOLDER                          2547
ticular social group’ within the meaning of section
101(a)(42)(A) of the Act.” The BIA relied on our decision in
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), where we
held that a tattooed alien’s membership in a violent criminal
gang was not “social group” membership for withholding of
removal purposes.

   Zetino now timely petitions for review of the BIA’s deci-
sion to reject his untimely brief as well as its decision to
uphold the IJ’s ruling denying his applications for asylum and
withholding of removal.1 He presents three distinct chal-
lenges, two procedural and one substantive.

   First, Zetino claims the BIA’s discretionary ruling refusing
to accept his untimely brief or to extend the filing period was
a violation of his due process rights and an abuse of discre-
tion. The government argues that we do not have jurisdiction
over the abuse of discretion challenge to the denial of the
motion to accept a late brief because there is no meaningful
standard against which to judge the discretionary ruling. We
agree. However, we do have jurisdiction to review the BIA’s
denial of a motion to accept an untimely brief for a violation
of due process. We find that the BIA’s denial of the brief in
this instance did not violate Zetino’s due process rights.

  Second, Zetino claims the IJ violated his due process rights
by failing to develop a factually complete record or advise
him of his right to counsel. This argument is without merit
and is unsupported by the record.

   Third, Zetino claims substantial evidence does not support
the BIA’s decision that he failed to demonstrate a nexus
  1
   In his petition for review, Zetino does not challenge the IJ’s denial of
his application for protection under the United Nations Convention
Against Torture. Accordingly, he has waived any challenge to that deter-
mination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.
1996).
2548                   ZETINO v. HOLDER
between the harm he allegedly faces upon return to El Salva-
dor and a protected ground such as race, religion, nationality,
membership in a particular social group, or political opinion.
Zetino fears return to El Salvador because in 1993 unidenti-
fied masked gunmen murdered members of his family moti-
vated by a desire to steal his grandfather’s land. Neither that
event nor his fear of gangs bears a nexus to a protected
ground.

   Accordingly, we deny the petition for review in part and
dismiss in part for want of jurisdiction.

                              II

   “[W]e have jurisdiction to determine our own jurisdiction.”
Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). We
review questions of our own jurisdiction de novo. Miller v.
Comm’r, 310 F.3d 640, 642 (9th Cir. 2002). Due process
challenges to immigration proceedings are also reviewed de
novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003).
We review petitions for review of the BIA’s determination
that a petitioner does not qualify for asylum or withholding of
removal under the highly deferential “substantial evidence”
standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Under this standard, the petition for review must be denied if
the BIA’s determination is “supported by reasonable, substan-
tial, and probative evidence on the record considered as a
whole.” Id. The petition for review may be granted only if the
evidence presented “was such that a reasonable factfinder
would have to conclude that the requisite fear of persecution
existed.” Id. (citing NLRB v. Columbian Enameling & Stamp-
ing Co., 306 U.S. 292, 300 (1939)).

                              III

  Because Zetino filed his application for asylum after the
May 11, 2005, effective date of the REAL ID Act of 2005, we
have jurisdiction under Section 242 of the INA, 8 U.S.C.
                             ZETINO v. HOLDER                             2549
§ 1252, as amended by the Act, Pub. L. No. 109-13, Div. B.,
119 Stat. 231 (May 11, 2005).

                                      A

                                       i

   Zetino first challenges the BIA’s rejection of his untimely
brief and refusal to extend the filing period as an abuse of dis-
cretion and a violation of his due process rights. Thus, we are
asked to review four challenges: (1) an abuse of discretion
challenge to the denial of the motion to accept a late brief; (2)
a due process challenge to the denial of the motion to accept
a late brief; (3) an abuse of discretion challenge to the denial
of the motion to extend the filing period; and (4) a due pro-
cess challenge to the denial of the motion to extend the filing
period. However, we limit our analysis to Zetino’s challenges
to the BIA’s denial of his motion to accept a late brief.2 The
government argues this court lacks jurisdiction over the first
challenge, reviewing the denial of Zetino’s motion to accept
an untimely brief for an abuse of discretion, because the
applicable regulation, 8 C.F.R. § 1003.3(c)(1), fails to provide
a sufficiently meaningful standard. We agree.

   [1] There are two grounds upon which to challenge appel-
late jurisdiction over a discretionary BIA decision. First, “no
court shall have jurisdiction to review . . . any . . . decision
or action of the Attorney General or the Secretary of Home-
land Security the authority for which is specified under this
  2
    We construe Zetino’s motion, filed two weeks after the filing deadline,
as solely a motion to accept an untimely brief. An extension of the filing
period was factually impossible because the filing period had already
lapsed. In its order, the BIA noted its stated policy that a “request for an
extension of time to file a brief must be received at the Board on or before
[the] . . . due date.” A motion to extend the filing period filed after the fil-
ing deadline can only result in the acceptance of an untimely brief.
Accordingly, we treat Zetino’s “Motion to Accept Late Brief and Motion
for Extension of Time” as a motion to accept an untimely brief.
2550                        ZETINO v. HOLDER
subchapter to be in the discretion of the Attorney General or
the Secretary of Homeland Security.” 8 U.S.C.
§ 1252(a)(2)(B)(ii). Second, in Ekimian v. INS, 303 F.3d
1153, 1159 (9th Cir. 2002), we held that we do not have juris-
diction to review a discretionary BIA decision for an abuse of
discretion where we “cannot discover a sufficiently meaning-
ful standard against which to judge the BIA’s decision.” Id.

   [2] Here, the first ground is not available.3 The Attorney
General solely invokes the latter challenge, which is applica-
ble in this case. “Regardless whether § 1252(a)(2)(B)(ii) or
other statutes affect our jurisdiction . . ., Ekimian requires us
to determine whether there is a legal standard to apply in eval-
uating the BIA’s action or inaction.” Diaz-Covarrubias v.
Mukasey, 551 F.3d 1114, 1119 (9th Cir. 2009). In Ekimian we
declined to exercise jurisdiction over an abuse of discretion
challenge to the BIA’s refusal to exercise its discretion to sua
sponte reopen deportation proceedings.4 303 F.3d at 1159. In
Diaz-Covarrubias we declined to exercise jurisdiction over an
abuse of discretion challenge to the BIA’s denial of a request
for an administrative closure. 551 F.3d at 1119.

   [3] In both cases we were asked to review discretionary
BIA decisions with little or no regulatory guidance as to how
or when that discretion should be exercised. In both cases we
identified three factors indicating the lack of a meaningful
  3
     Section 1252(a)(2)(B)(ii) has been interpreted to only apply to discre-
tionary decisions the authority for which is granted under statute. See
Kucana v. Holder, 558 U.S. ___, ___ (2010) (slip op. at 10); Spencer
Enters., Inc. v. United States, 345 F.3d 683, 689-92 (9th Cir. 2003). The
authority for the BIA’s decision to reject a late brief is not granted by stat-
ute, but rather by regulation. See 8 C.F.R. § 1003.3(c)(1)
   4
     The Supreme Court’s decision in Kucana did not overrule Ekimian. In
Ekimian, we held we lack jurisdiction to review the Board’s decision not
to reopen removal proceedings sua sponte. In Kucana, the Court “express-
[ed] no opinion on whether federal courts may review the Board’s deci-
sion not to reopen removal proceedings sua sponte.” Slip op. at 10, n.18.
Accordingly, Ekimian is still good law.
                            ZETINO v. HOLDER                           2551
governing standard: (1) the applicable federal regulation did
not specify a standard for the BIA to apply; (2) “no statutory
language authorize[d] the BIA” to take the discretionary
action; and (3) “no precedential BIA decision specified a stan-
dard for exercising its” discretionary authority over the mat-
ter. Diaz-Covarrubias, 551 F.3d at 1117 (quoting Ekimian,
303 F.3d at 1157-58) (internal quotation marks omitted).
Finally, in both cases we held, “Because we cannot discover
a sufficiently meaningful standard against which to judge the
BIA’s decision, we lack jurisdiction . . . .” Diaz-Covarrubias,
551 F.3d at 1119 (quoting Ekimian, 303 F.3d at 1159) (inter-
nal quotation marks omitted). We are equally deprived of
such guidance in the present case and are accordingly unable
to review the BIA’s denial of a late brief for an abuse of dis-
cretion.

   [4] Here, the regulation at issue, 8 C.F.R. § 1003.3(c)(1),
merely states, “In its discretion, the Board may consider a
brief that has been filed out of time.” Id. An application of the
factors identified in Ekimian and Diaz-Covarrubias leads to
the conclusion that there is no sufficiently meaningful stan-
dard against which to judge the BIA’s exercise of its discre-
tion under this regulation. First, the federal regulation does
not specify a standard that the BIA should apply in deciding
when to accept or deny a late brief. Second, no statutory lan-
guage authorizes the BIA to accept or deny a late brief. Third,
no precedential BIA decision specifies a standard for accept-
ing or denying a late brief.5 As in Ekimian and Diaz-
  5
    BIA decisions addressing late briefs do not announce a precedential
standard. See e.g., In re Hassan Ibrahim Bazzi, No. A75-415-118, 2007
WL 1125702 (BIA Feb. 23, 2007) (“As a matter of discretion, we will
accept the respondent’s late-filed appeal brief in light of the representa-
tions set forth in counsel’s ‘Motion to Submit Brief in Support of Appeal
Out of Time’ filed in conjunction with the respondent’s brief.”); In re
Javier Mejia-Hernandez, No. A92-838-910, 2003 WL 23269902 (BIA
Dec. 4, 2003) (“[A]s a courtesy in this case we will accept the respon-
dent’s late-filed brief in light of the respondent’s counsel’s statement that
he is responsible for the untimeliness and is not familiar with simultaneous
2552                        ZETINO v. HOLDER
Covarrubias, we cannot decipher a meaningful standard from
either the regulatory language or the handful of BIA decisions
addressing motions to accept late briefs. The regulation itself
and the relevant BIA case law do “not provide any guidance
to the BIA regarding when it should exercise its discretion”
to accept an untimely appellate brief.6 Diaz-Covarrubias, 551
F.3d at 1118. Accordingly, we hold that because “we cannot
discover a sufficiently meaningful standard” for evaluating
the BIA’s decision rejecting an untimely brief, we lack juris-
diction to review Zetino’s claim that the BIA abused its dis-
cretion in doing so. Id. at 1120 (quoting Ekimian, 303 F.3d at
1159) (internal quotation marks omitted).

   [5] Zetino also challenges the BIA’s discretionary decision
on due process grounds. The REAL ID Act of 2005 specifi-
cally exempted constitutional challenges from the jurisdic-
tional bar contained in 8 U.S.C. § 1252(a)(2)(B)(ii). See 8
U.S.C. § 1252(a)(2)(D); see also Cabrera-Alvarez v. Gon-
zales, 423 F.3d 1006, 1009 (9th Cir. 2005). Zetino’s due pro-
cess challenge is, of course, governed by a meaningful
standard. See infra at Section III(A)(ii). Furthermore, several

briefing schedules.”); In re Manuel Palma Carrillo, No. A96-362-442,
2004 WL 2374952 (BIA Aug. 24, 2004) (“The [motion to accept a late
brief] is denied. The motion argues that the respondent trusted a non-
attorney to file the brief on time. However, the motion does not state the
name of this person, and does not specifically describe the agreement the
respondent had with him or her. The motion merely contains generalized
statements.”).
   6
     We note that this sentiment is present in the few cases in which we
have been presented with abuse of discretion challenges to the BIA’s
denial of untimely briefs. Our cases have struggled to find any semblance
of an actual standard. See, e.g., Garcia Gomez v. Gonzales, 498 F.3d 1050,
1051 (9th Cir. 2007) (per curiam) (remanding because the court was “un-
able to determine from the BIA’s conclusory statement whether it abused
its discretion by refusing to accept [the] late brief”); Ramirez v. Ashcroft,
113 F. App’x 238, 240 (9th Cir. 2004) (“We also find unpersuasive peti-
tioner’s contention that the BIA’s decision to reject their late-filed brief
was improper.”).
                        ZETINO v. HOLDER                       2553
published and unpublished opinions have found jurisdiction
over the BIA’s rejection of an untimely brief on due process
grounds. See, e.g., Singh v. Ashcroft, 362 F.3d 1164, 1167
(9th Cir. 2004) (finding jurisdiction and holding that the
BIA’s rejection of a late brief violated petitioner’s due pro-
cess rights); Garcia Cantor v. Gonzales, 131 F. App’x 601,
602 (9th Cir. 2005) (“We have jurisdiction under 8 U.S.C.
§ 1252 to review the BIA’s denial of the Petitioners’ motion
to file a late brief.”); Reyes Lopez v. Gonzales, 143 F. App’x
831, 831-32 (9th Cir. 2005) (“Reyes Lopez’s contention that
the BIA violated his due process rights by denying his motion
to accept a late brief fails because the BIA has discretion
whether to grant motions for extensions of time or to accept
late filings.”). Accordingly, we have jurisdiction to review the
BIA’s denial of a motion to accept an untimely brief for a vio-
lation of due process.

                                 ii

   [6] Turning to the merits of Zetino’s challenge to the
BIA’s rejection of his untimely brief, we find that his due pro-
cess rights were not violated. “The Fifth Amendment guaran-
tees due process in deportation proceedings.” Campos-
Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999). An alien
“must receive a ‘full and fair hearing,’ in order to meet the
requirements of due process.” Id. A petition for review will
only be granted on due process grounds if “(1) the proceeding
was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding
may have been affected by the alleged violation.” Ibarra-
Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006).

   [7] First, Zetino’s proceedings were not so fundamentally
unfair that he was prevented from reasonably presenting his
case. An alien has been provided with due process when he
or she is given an opportunity “to be represented by counsel,
prepare an application for . . . relief, and . . . present testimony
2554                   ZETINO v. HOLDER
and other evidence in support of the application.” Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007).
We have held that a petitioner’s due process rights are vio-
lated if the BIA refuses to accept a late brief where the alien
followed all procedures but the BIA sent the briefing schedule
and transcript to an incorrect address. See Singh, 362 F.3d at
1168-69.

   In Singh, the petitioner was unable to refute an IJ’s adverse
credibility finding in front of the BIA because he was never
given notice of the briefing schedule. Id. at 1168. Here, not
only was there no adverse credibility finding, but Zetino
received an initial briefing schedule as well as a supplemental
briefing schedule affording him a two week extension at his
Texas detention facility. His failure to timely file a brief by
the date of which he had advance notice was not due to the
actions of the BIA, but rather to his six year delay in securing
counsel.

   While Zetino does not claim ineffective assistance of coun-
sel, we have held that a petitioner’s due process rights are not
violated even where the failure to file the brief on time is the
result of the petitioner’s counsel’s mistake. See Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003). Here, Zetino
did not secure his counsel until five days after the expiration
of the filing deadline. It was quite impossible for his attorney
to timely file his appellate brief. However, even if the errors
of his counsel had contributed to the delay, Zetino’s due pro-
cess claim would still fail.

   [8] Unlike both Singh and Rojas-Garcia, Zetino cannot
point to anyone but himself to explain the untimeliness of his
brief. We cannot conclude that by missing the deadline he had
successfully extended he somehow deprived himself of due
process. To hold to the contrary would mean that when the
BIA enforced the previously extended filing deadline known
to the petitioner the proceeding became fundamentally unfair.
Such a holding would be contrary to existing due process
                        ZETINO v. HOLDER                     2555
jurisprudence addressing filing deadlines. See, e.g., United
States v. Locke, 471 U.S. 84, 101 (1985) (holding that a filing
deadline under Federal Land Policy and Management Act car-
rying a penalty of an automatic forfeiture of a mining claim
did not violate due process).

   [9] Nevertheless, we have held an alien’s due process
rights are violated if the BIA summarily dismisses an appeal
for failing to file a brief but the notice of appeal is sufficient
to put the BIA on notice of the relevant issues on appeal. See
Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753-54 (9th Cir.
2004). In his Notice of Appeal, Zetino made a coherent argu-
ment asking the BIA to reverse the IJ’s determination. He
cited specific evidence regarding his fear of his family’s mur-
derers as well as his fear of gangs. However, the BIA did not
summarily dismiss Zetino’s appeal when his brief was
untimely. Nor did the BIA summarily adopt the decision of
the IJ instead of addressing each of Zetino’s claims. In its
decision, the BIA properly articulated Zetino’s two fears: “He
fears that he could be killed by the eleven unidentified
masked gunmen who fatally shot his aunt, uncle, and at least
three cousins in 1993 and who remain at large. He also fears
members of gangs, who could attempt to recruit him.” The
BIA considered his arguments in turn, and affirmed the IJ’s
decision, holding that Zetino failed to establish a nexus
between his fears and a protected ground. Thus, it did not pre-
vent Zetino from reasonably presenting his case.

  [10] Second, even if rejection of Zetino’s brief could be
considered a violation of his rights, he cannot show prejudice
because the BIA considered all of the facts presented and
applied them to the law. Zetino’s articulation of his two fears
could not have changed to such a degree between his Notice
of Appeal and his brief that the BIA’s decision would have
changed. The BIA’s review, and its rejection of Zetino’s
untimely brief, did not run afoul of the Fifth Amendment’s
Due Process Clause.
2556                   ZETINO v. HOLDER
                               B

   [11] Zetino’s second argument on appeal is that the IJ vio-
lated his due process rights by failing to develop a factually
complete record or advise him of his right to counsel. This
argument is without merit.

  The same standard applies to both this challenge and
Zetino’s due process challenge to the BIA’s rejection of his
untimely brief. See supra at Section III(A)(ii). Zetino was
entitled to a full and fair hearing. See Campos-Sanchez, 164
F.3d at 450. Zetino was not prevented from reasonably pre-
senting his case, nor were the proceedings before the IJ funda-
mentally unfair.

  Zetino was advised of his right to counsel at his first
appearance before the IJ on May 31, 2001. The IJ stated,

    [N]ow let me explain to you the rights that you will
    have in these hearings. First and foremost of those
    rights is the right to be represented. The Immigration
    Service today is represented by an attorney. You
    have the same right. You may be represented by an
    attorney or a representative who’s been authorized
    and qualified to represent people before the Immi-
    gration Court . . . . If you want to have an attorney
    or representative represent you in these proceedings
    it must be at no expense to the Government. That
    means it is going to be your obligation to contact that
    individual.

In the colloquy between Zetino and the IJ, the IJ specifically
advised him of his right to counsel and confirmed that he was
provided with a list of free legal services. The IJ stated, “I’m
going to show you a document. That document is called the
legal aid list, and you . . . should have gotten a copy of this
document when you got notice of today’s hearing. Did you
. . . receive a copy of this document that I’m showing you?”
                       ZETINO v. HOLDER                   2557
Zetino answered, “Yes.” Zetino even sought a continuance to
obtain counsel. Zetino had almost six years between his first
appearance and his final merits hearing to obtain counsel.

   At the final hearing, Zetino called witnesses but chose not
to question them. Zetino argues that he was not aware of his
right to question his witnesses. However, the IJ specifically
explained this right to him. When Zetino testified for himself,
and when he chose not to question his witnesses, the IJ suffi-
ciently developed the record, soliciting responses to several
questions. First he asked, “Why do you fear returning to the
country of El Salvador?” Then, “Any other reason why you
fear [sic]?” Finally, “Do you know why they are killed or
what the motivation was [sic]?”

   The lawyer for the Department of Homeland Security also
developed the record, asking Zetino and his family members
numerous questions. The attorney began, “Why do you think
they will harm you in particular?” Then, “Have you ever had
any family members killed in El Salvador?” “[D]o you know
who killed them?” “Do you know why this murder took place
or what the motive was?” “[W]ere you hurt at all while you
were in El Salvador?” Finally, “Do you think your son will be
harmed if he returned to El Salvador?”

  The IJ advised Zetino of his procedural rights and devel-
oped a thorough factual record. As a result, we find that the
proceeding was not so fundamentally unfair that Zetino was
prevented from reasonably presenting his case. His due pro-
cess rights were not violated.

                              C

   Finally, Zetino argues that substantial evidence does not
support the BIA’s decision affirming the IJ’s denial of his
applications for asylum and withholding of removal. Under
the substantial evidence standard, the petition for review must
be denied if the BIA’s determination was “supported by rea-
2558                   ZETINO v. HOLDER
sonable, substantial, and probative evidence on the record
considered as a whole.” Elias-Zacarias, 502 U.S. at 481.
Zetino bears the burden of proving that he is eligible for asy-
lum or withholding of removal. See 8 C.F.R. §§ 1208.13,
1208.16; Berroteran-Melendez v. INS, 955 F.2d 1251,
1255-56 (9th Cir. 1992).

   To be eligible for asylum, Zetino must demonstrate that he
can qualify as a “refugee,” meaning he is unable or unwilling
to return to his country of origin “because of persecution or
a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42). To be eligible for
withholding of removal, Zetino must demonstrate that his
“life or freedom would be threatened in [his home] country
because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3).
The REAL ID Act of 2005 places an additional burden on
Zetino to demonstrate that one of the five protected grounds
will be at least one central reason for his persecution. See id.
§ 1158(b)(1)(B)(i).

   Zetino testified that he was fearful of returning to El Salva-
dor because, in 1993, bandits attempting to steal his grandfa-
ther’s farm had murdered his family members. Zetino did not
present evidence that the bandits targeted his family on
account of a protected ground such as their race, religion,
nationality, membership in a particular social group, or politi-
cal opinions. Rather, he testified that the farm was on fertile
land, and thus valuable. Zetino implied that the only motiva-
tion for the murders was the land itself. He testified that the
attackers “were insisting on the lands and [his] grandfather
did not want to get rid of the land.” Zetino also testified that
he was afraid of gang violence because he had tattoos that
gang members might mistake as a sign of membership in a
rival gang.

  [12] An alien’s desire to be free from harassment by crimi-
nals motivated by theft or random violence by gang members
                       ZETINO v. HOLDER                     2559
bears no nexus to a protected ground. See id. §§ 1231(b)(3),
1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th
Cir. 2004) (holding that random criminal acts bore no nexus
to a protected ground). Accordingly, the BIA properly ruled
that Zetino did not meet his burden of proving that the poten-
tial harm he would suffer in El Salvador was “on account of”
a protected ground such as “race, religion, nationality, mem-
bership in a particular social group, or political opinion.” Gor-
mley, 364 F.3d at 1176. Because the BIA’s determination is
supported by reasonable, substantial, and probative evidence
in the record considered as a whole, the petition for review is
denied.

                               IV

   We do not have jurisdiction to review the BIA’s denial of
Zetino’s untimely brief for an abuse of discretion. As a result,
this part of the petition is dismissed. Zetino’s due process
rights were not violated and substantial evidence supports the
BIA’s decision that Zetino did not demonstrate a nexus
between the harm he fears and a protected ground. This part
of the petition for review is denied.

  PETITION DISMISSED IN PART, DENIED IN PART.



LAWSON, District Judge, concurring in part and concurring
in the judgment:

   I concur in the majority’s decision to deny the petition and
in most of its reasoning. I part company, however, with my
colleagues’ conclusion that we have no jurisdiction to review
the Board of Immigration Appeals’ (BIA) denial of the peti-
tioner’s motion to accept an untimely brief. The majority’s
holding amounts to an extension of circuit precedent laid
down in Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002), and
Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. 2009),
2560                    ZETINO v. HOLDER
both of which, in turn, took their core premise from Heckler
v. Chaney, 470 U.S. 821 (1985). In Heckler, the Supreme
Court held that when Congress commits to an agency discre-
tionary authority to perform an act without prescribing mean-
ingful governing standards, that exercise of discretion is
placed beyond judicial review by section 701(a)(2) of the
Administrative Procedures Act (APA). Id. at 830; see 5
U.S.C. § 701(a)(2) (authorizing judicial review of final
agency action “except to the extent that . . . agency action is
committed to agency discretion by law”). I believe that
Ekimian and Diaz-Covarrubias misread Heckler by applying
it to agency decisions made discretionary by regulation, that
is, by the agency itself, effectively permitting the agency to
insulate its own decisions from judicial review. In Kucana v.
Holder, No. 08-911, 558 U.S. ___, 2010 WL 173368 (Jan. 20,
2010), the Supreme Court concluded that such a scheme con-
travenes the “presumption . . . ‘that executive determinations
are generally subject to judicial review,’ ” slip op. at 16 (quot-
ing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434
(1995)), “the longstanding exercise of judicial review of
administrative rulings [on procedural matters],” id. at 2, and
the “congressional design” that “[Congress], and only [Con-
gress], would limit the federal courts’ jurisdiction,” id. at 17.
Consequently, I would not extend Ekimian’s and Diaz-
Covarrubias’s holdings to bar review of other agency actions
— such as the decision whether to accept a late brief — that
are based on authority made discretionary by the agency
itself. I would find, however, that the BIA did not abuse its
discretion in refusing the petitioner’s late brief in this case.

                                I.

   Heckler v. Chaney was a case in which the Court was cal-
led upon to decide the extent to which Congress restricted
federal court jurisdiction to review actions by administrative
agencies under the APA. There, the Court rejected a claim by
several death row inmates who sought a mandatory injunction
to compel the Food and Drug Administration to enforce pro-
                       ZETINO v. HOLDER                      2561
visions of the Federal Food, Drug, and Cosmetic Act, 21
U.S.C. § 301 et seq., (FDCA) against officials in states that
had adopted the lethal injection method for carrying out a
death sentence. The inmates argued that the FDCA prohibited
off-label use of drugs, and that the drugs chosen by the states
could not be used for that purpose until the FDA approved the
drugs as “safe and effective” for human execution. Id. at 827.

   The Court held that the FDA’s decision not to institute
enforcement action was shielded from judicial review by sec-
tion 701(a)(2) of the APA. In reaching that conclusion, the
Court noted the tension between section 701(a)(2), which bars
review of actions “committed to agency discretion,” and sec-
tion 706(2)(A), which authorizes judicial review to determine
whether the agency’s action was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). In construing section 701(a)(2), the
Court cited Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971), abrogated on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977), which characterized that stat-
utory bar to judicial review as “a very narrow exception.” 401
U.S. at 410. The Overton Park Court explained, “The legisla-
tive history of the Administrative Procedure Act indicates that
it is applicable in those rare instances where ‘statutes are
drawn in such broad terms that in a given case there is no law
to apply.’ ” Ibid. (citing S. Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945)).

   The Heckler Court found that the exception to judicial
review in section 701(a)(2) was categorically distinct from the
exception in section 701(a)(1), which bars review when “stat-
utes preclude judicial review.” 5 U.S.C. § 701(a)(1). The
Court explained:

    [Section 701(a)(1)] applies when Congress has
    expressed an intent to preclude judicial review. [Sec-
    tion 702(a)(2)] applies in different circumstances;
    even where Congress has not affirmatively precluded
2562                   ZETINO v. HOLDER
    review, review is not to be had if the statute is drawn
    so that a court would have no meaningful standard
    against which to judge the agency’s exercise of dis-
    cretion. In such a case, the statute (“law”) can be
    taken to have “committed” the decisionmaking to the
    agency’s judgment absolutely. This construction
    avoids conflict with the “abuse of discretion” stan-
    dard of review in § 706 — if no judicially manage-
    able standards are available for judging how and
    when an agency should exercise its discretion, then
    it is impossible to evaluate agency action for “abuse
    of discretion.” In addition, this construction satisfies
    the principle of statutory construction mentioned ear-
    lier, by identifying a separate class of cases to which
    § 701(a)(2) applies.

Heckler, 470 U.S. at 830. The Court ultimately concluded:

    The general exception to reviewability provided by
    § 701(a)(2) for action “committed to agency discre-
    tion” remains a narrow one . . ., but within that
    exception are included agency refusals to institute
    investigative or enforcement proceedings, unless
    Congress has indicated otherwise. In so holding, we
    essentially leave to Congress, and not to the courts,
    the decision as to whether an agency’s refusal to
    institute proceedings should be judicially reviewable.

Id. at 838.

   In Heckler, the Court determined that Congress can restrict
the jurisdiction of federal courts over certain agency actions
under the APA by deeming them “discretionary” and drafting
“statutes” that provide a court “no meaningful standard
against which to judge the agency’s exercise of discretion.”
Id. at 830. It does not support a conclusion that an agency can
strip a court of jurisdiction to review its own actions by enact-
ing regulations that deem these actions discretionary. Recog-
                       ZETINO v. HOLDER                     2563
nizing such authority would fundamentally alter the
constitutional checks and balances put in place by the separa-
tion of powers doctrine.

   That point was made clear by the Court’s recent decision
in Kucana v. Holder, No. 08-911, 558 U.S. ___, 2010 WL
173368. In that case, the Court construed the jurisdiction-
stripping provision in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat.
3009-546. That provision was found in 8 U.S.C.
§ 1252(a)(2)(B)(ii), which states that no court shall have juris-
diction to review any action of the Attorney General “the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General.” The Seventh Circuit
found this statute to bar review of a decision by the BIA deny-
ing the petitioner’s late motion to reopen removal proceedings
because the Attorney General had made such decisions discre-
tionary by regulation. The Court noted that Congress had not
codified the provision in the regulation making such decisions
discretionary. The Court read the phrase “specified under this
subchapter” in section 1252(a)(2)(B)(ii) to mean that “Con-
gress barred court review of discretionary decisions only
when Congress itself set out the Attorney General’s discre-
tionary authority in the statute.” Kucana, slip op. at 12.

   With respect to motions to reopen, the Court concluded that
Congress intended judicial review to be as broad as it was
before the IIRIRA was enacted: “The BIA has broad discre-
tion, conferred by the Attorney General, ‘to grant or deny a
motion to reopen,’ 8 CFR § 1003.2(a), but courts retain juris-
diction to review, with due respect, the Board’s decision.”
Slip op. at 15. The Court characterized decisions on motions
to reopen as “adjunct rulings,” which remain subject to judi-
cial review. Id. at 13. “A court decision reversing the denial
of a motion to reopen does not direct the Executive to afford
the alien substantive relief; ordinarily, it touches and concerns
only the question whether the alien’s claims have been
accorded a reasonable hearing.” Ibid. Decisions to allow the
2564                    ZETINO v. HOLDER
filing of a late brief fall squarely within this category; they are
deemed discretionary by the agency, see 8 C.F.R.
§ 1003.3(c)(1), but Congress has not placed them beyond the
scope of judicial review.

   The Court’s holding in Kucana was clear: “While Congress
pared back judicial review in IIRIRA, it did not delegate to
the Executive authority to do so.” Slip op. at 18. Were it oth-
erwise, “the Executive would have a free hand to shelter its
own decisions from abuse-of-discretion appellate court review
simply by issuing a regulation declaring those decisions ‘dis-
cretionary.’ ” Id. at 17. That result would upset the “congres-
sional design” in which “Congress ensured that it, and only it,
would limit the federal courts’ jurisdiction.” Ibid.

                                II.

   In Ekimian v. INS, the court quoted language recited above
from Heckler v. Chaney interpreting section 701(a)(2) and
concluded that “[t]he text of [8 C.F.R.] § 3.2(a)[(now codified
at 8 C.F.R. § 1003.2(a)] does not provide a standard control-
ling or directing the BIA’s decision whether to reopen, and
similarly provides no standard for reviewing the BIA’s deci-
sion.” 303 F.3d at 1157-58. The court in Diaz-Covarrubias
quoted the same passage from Heckler and concluded that
“the BIA has not set forth any meaningful standard for exer-
cising its discretion to implement an administrative closure.”
551 F.3d at 1118. Both courts then held that the lack of mean-
ingful standards set out in the regulations, or otherwise
described in its own decisions, stripped federal courts of juris-
diction to review the agency decisions to deny an untimely
motion to reopen and to implement an administrative closure.

   I believe these decisions misapply Heckler for several rea-
sons. First, the Court in Heckler was construing a section of
the APA in which Congress barred judicial review under very
“narrow” circumstances not present in the context of review-
ing BIA decisions. The jurisdictional bar required two legisla-
                           ZETINO v. HOLDER                           2565
tive acts: (1) Congress barred judicial review of those
administrative decisions made discretionary “by law” in the
APA; and (2) Congress had to enact the “law” that delegated
authority to the agency to act in its sole discretion. Second,
the bar set forth in 5 U.S.C. § 701(a)(2) to discretionary deci-
sions by an agency applies only “if the statute is drawn so that
a court would have no meaningful standard against which to
judge the agency’s exercise of discretion.” Heckler, 470 U.S.
at 830 (emphasis added). There is no statute that commits to
agency discretion the decision whether to accept late briefs.
Third, neither Heckler nor any other Supreme Court precedent
supports the proposition that the absence of review standards
in a regulation enacted by an agency renders that agency’s
action under that regulation unreviewable. If it were other-
wise, the agency could determine the scope of federal court
jurisdiction to review its actions by the mere expedient of
omitting review standards from its own regulations. Finally,
reading Heckler to strip federal courts of jurisdiction to
review decisions deemed discretionary by the agency itself
collides with “the presumption favoring judicial review of
administrative action.” Kucana, slip op. at 16.

  Because Ekimian and Diaz-Covarrubias misapply Heckler,
I would not extend that circuit precedent to the present case.1
   1
     The majority notes that the Supreme Court in Kucana specifically
expressed no opinion on whether federal courts could review BIA refusals
to reopen sua sponte, and therefore Ekimian remains good law. See slip
op. at 2550 n.4 (citing Kucana, slip op. at 16 n.18). The majority correctly
cites the footnote in Kucana, but I respectfully suggest that its conclusion
does not follow. Ekimian relies exclusively on Heckler for its doctrinal
premise that the absence of meaningful standards to guide an agency’s dis-
cretion deprives the courts of jurisdiction to review agency decisions. The
Ekimian court applied Heckler by stating: “The text of § 3.2(a) does not
provide a standard controlling or directing the BIA’s decision whether to
reopen, and similarly provides no standard for reviewing the BIA’s deci-
sion.” Ekimian, 303 F.3d at 1157-58 (citing 8 C.F.R. § 3.2(a)). This obvi-
ous reference to a discretion-conferring regulation as the premise for
application of Heckler’s rule, which requires congressional action, under-
2566                       ZETINO v. HOLDER
Doing so would condone a scheme in which the Executive
Branch would have the power to limit the jurisdiction of the
federal courts. However, under the separation of powers doc-
trine, only Congress can expand or contract the subject-matter
jurisdiction of a lower Article III court. See Kontrick v. Ryan,
540 U.S. 443, 452 (2004). That principle is rooted in the text

mines Ekimian’s continuing validity in light of the Supreme Court’s clear
statement that when enacting the INA, “Congress ensured that it, and only
it, would limit the federal courts’ jurisdiction.” Kucana, slip op. at 17.
There is no statute that speaks to the BIA’s authority to reopen proceed-
ings sua sponte.
   The majority of cases finding no jurisdiction to review denials of
motions to reopen sua sponte on account of Heckler do so on the basis of
standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.
1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003); Doh v. Gonzales, 193 F.
App’x 245, 246 (4th Cir. 2006) (per curiam); Enriquez-Alvarado v. Ash-
croft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d
405, 410-11 (6th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.
2003); Ekimian, 303 F.3d at 1159; Belay-Gebru v. INS, 327 F.3d 998,
1000-01 (10th Cir. 2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.
1999). The only two cases that cite a statute in concluding that such deci-
sions are unreviewable point to 8 U.S.C. § 1103(g)(2), which generally
authorizes “[t]he Attorney General [to] establish such regulations . . . as
the Attorney General determines to be necessary for carrying out this sec-
tion.” See Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (en
banc) (per curiam) (“The regulation establishing the BIA’s authority to
reopen sua sponte was promulgated pursuant to a general grant of regula-
tory authority that sets no standards for this decision. See 8 U.S.C.
§ 1103(g).”); Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293 (11th Cir.
2008) (“[N]o statute expressly authorizes the BIA to reopen cases sua
sponte; rather, the regulation at issue derives from a statute that grants
general authority over immigration and nationalization matters to the
Attorney General, and sets no standard for the Attorney General’s
decision-making in this context. See 8 U.S.C. § 1103(g)(2).”). Under that
rationale, however, any agency decision made under a regulation in which
the agency grants itself discretion to act would be beyond judicial review
where Congress granted general authority to the agency to make rules,
which is to say, in virtually every case. That result directly contradicts
Kucana’s central holding.
                       ZETINO v. HOLDER                    2567
of the Constitution, which vests the judicial power in the
Supreme Court “and in such inferior Courts as the Congress
may from time to time ordain and establish,” U.S. Const. art
III, § 1, and which gives to Congress the power “[t]o consti-
tute Tribunals inferior to the supreme Court,” U.S. Const. art
I, § 8, cl. 9. See Keene Corp. v. United States, 508 U.S. 200,
207 (1993) (“Congress has the constitutional authority to
define the jurisdiction of the lower federal courts.”). Congress
may alter federal court jurisdiction through legislation, but to
do so it must satisfy the requirements of bicameralism and
presentment. See INS v. Chadha, 462 U.S. 919, 957-58
(1983).

   Although Congress may delegate certain legislative powers
to administrative agencies, Mistretta v. United States, 488
U.S. 361, 373-74 (1989), “[t]he rulemaking power granted to
an administrative agency charged with the administration of
a federal statute is not the power to make law,” Ernst & Ernst
v. Hochfelder, 425 U.S. 185, 213 (1976). Since the agency
cannot make law, it cannot restrict judicial review of its
actions through its own regulations. See Gladysz v. Donovan,
595 F. Supp. 50 (N.D. Ill. 1984) (invalidating the Secretary of
Labor’s regulations foreclosing judicial review of the agency
action because “[g]iven the absence of legislative intent to
foreclose judicial review, the Secretary cannot unilaterally
‘make law,’ . . . and prevent judicial review of his own deci-
sions”); cf. Chadha, 462 U.S. at 942 n.13 (“The assent of the
Executive to a bill which contains a provision contrary to the
Constitution does not shield it from judicial review.”).

   The separation of powers doctrine prevents the Executive
from unilaterally isolating his actions from judicial review.
See Morrison v. Olson, 487 U.S. 654, 693 n.33 (1988) (stating
that the purpose of judicial review of the actions of the Execu-
tive is to ensure that he executes the law in accordance with
the will of Congress as expressed under the statute). “[I]t is
the rule, not the exception, that executive actions — including
those taken at the immediate direction of the President — are
2568                    ZETINO v. HOLDER
subject to judicial review.” Nixon v. Fitzgerald, 457 U.S. 731,
781 (1982). If the actions of the Executive are to be immu-
nized from judicial review, it must be done by the legislative
branch clearly expressing its intent to do so. Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 680-81 (1986).

                               III.

   In this case, the BIA’s discretionary authority to accept a
late brief is set out in a regulation, not a statute. The regula-
tion, 8 C.F.R. § 1003.3(c)(1), states, “In its discretion, the
Board may consider a brief that has been filed out of time.”
No statute confers this discretionary authority on the BIA,
only the regulation itself. Consequently, the reasoning of
Heckler, which is limited to congressional grants of discre-
tion, does not extend to this regulation, nor does it insulate
decisions made thereunder from judicial review.

   Moreover, despite the lack of standards set out in the regu-
lation, determining whether the BIA abused its discretion
when denying the petitioner’s motion to file a late brief is not
a difficult task. The BIA’s denial is the type of ruling that dis-
trict courts regularly make, and which are routinely reviewed
by this court. As we observed recently, “[t]here are countless
types of district court rulings that we review for abuse of dis-
cretion.” United States v. Whitehead, 532 F.3d 991, 995 (9th
Cir. 2008). “When a district court makes a discretionary deci-
sion, we will affirm so long as the decision is within the range
of permissible decisions that the court could have made given
the law and the facts confronting it.” United States v.
Mancinas-Flores, No. 08-10094, ___ F.3d ___, 2009 WL
5125773, at *6 (9th Cir. Dec. 30, 2009).

   Like motions to reopen, decisions on whether to allow a
late brief are “adjunct rulings,” which the Supreme Court
described as “a procedural device serving to ensure that aliens
are getting a fair chance to have their claims heard.” Kucana,
slip op. at 13 (internal quotation marks and alterations omit-
                       ZETINO v. HOLDER                     2569
ted). The decision denying leave to file a brief out of time,
therefore, requires consideration of the reasons the brief was
not filed on time, the ability of the movant to present his case
to the BIA if the brief is not considered, the BIA’s need to
enforce its own procedural rules and control its docket, and
possible prejudice to other parties. In many ways, review of
the decision tracks the same considerations discussed by the
majority in determining that the petitioner was not deprived
of procedural due process when his late brief was not
accepted. I am satisfied that the BIA did not abuse its discre-
tion by rejecting the late brief in this case because the peti-
tioner was aware of the deadline, the BIA extended it once on
its own motion, the petitioner’s issues were set out adequately
in his notice of appeal to permit meaningful review, and the
delay was attributable solely to the petitioner and not to an
outside agency.

                              IV.

   The BIA’s authority to accept late briefs plainly is commit-
ted to its discretion by 8 C.F.R. § 1003.3(c)(1). There is no act
of Congress that restricts the jurisdiction of the circuit courts
from reviewing decisions under this regulation. Supreme
Court precedent does not support the proposition that an
agency in the Executive Branch can regulate the jurisdiction
of the federal courts, nor does it provide support for the idea
that judicial review is barred as a result of the absence of gov-
erning standards in the regulation. I would hold, therefore,
that we have jurisdiction to review, with due respect, the
BIA’s decision not to accept the petitioner’s late brief. I also
would conclude that the BIA did not abuse its discretion.
Therefore, I concur in the majority’s opinion except for sec-
tion III(A)(i), and in the judgment denying the petition.
