                                                             [DO NOT PUBLISH]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”).



                                           4
      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.



                                          5
      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



                                           6
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
                                           7
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.
                                           8
                                          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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