[DO NOT PUBLISH]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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