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
COUNSEL

Niels W. Frenzen, Esq., (argued), University of Southern California Law School Immigration Clinic, Los Angeles, California, for petitioner Zetino.

Sunah Lee, Esq., (argued), U.S. Department of Justice, Civil

Division/Office of Immigration Litigation, Washington, D.C.,

2542 ZETINO v. HOLDER
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 Salvador, 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 witnesses 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

ZETINO v. HOLDER 2543
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 application 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 continuance 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 hearing. 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 family 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 proper2544 ZETINO v. HOLDER
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, religion, 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 decision 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 people like [him], because [he] also [has] tattoos (none gangrelated) 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 October 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 deadline of November 13, 2007, to November 30, 2007. Despite

ZETINO v. HOLDER 2545
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 “accommodate 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 violence and civil unrest affecting the home country’s

populace as a whole does not constitute a “wellfounded 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 ‘par2546 ZETINO v. HOLDER
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 decision 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 challenges, 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 discretion. 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 determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.

1996). 

ZETINO v. HOLDER 2547
between the harm he allegedly faces upon return to El Salvador 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 unidentified masked gunmen murdered members of his family motivated 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, substantial, 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 & Stamping 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.

2548 ZETINO v. HOLDER
§ 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 discretion 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 process 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 appellate 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 Homeland Security the authority for which is specified under this

2We 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 filing 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. 

ZETINO v. HOLDER 2549
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 jurisdiction to review a discretionary BIA decision for an abuse of

discretion where we “cannot discover a sufficiently meaningful 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 applicable 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 evaluating 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

3Section 1252(a)(2)(B)(ii) has been interpreted to only apply to discretionary 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 statute, but rather by regulation. See 8 C.F.R. § 1003.3(c)(1) 

4The 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 decision not to reopen removal proceedings sua sponte.” Slip op. at 10, n.18.

Accordingly, Ekimian is still good law. 

2550 ZETINO v. HOLDER
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 standard for exercising its” discretionary authority over the matter. 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) (internal 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 discretion.

[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 standard against which to judge the BIA’s exercise of its discretion 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 language authorizes the BIA to accept or deny a late brief. Third,

no precedential BIA decision specifies a standard for accepting or denying a late brief.5

 As in Ekimian and Diaz5BIA 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 representations 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 respondent’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

ZETINO v. HOLDER 2551
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 jurisdiction to review Zetino’s claim that the BIA abused its discretion 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 specifically exempted constitutional challenges from the jurisdictional 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. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005). Zetino’s due process 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 nonattorney 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.”). 

6We 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 “unable 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 petitioner’s contention that the BIA’s decision to reject their late-filed brief

was improper.”). 

2552 ZETINO v. HOLDER
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 process 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 violation 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 process rights were not violated. “The Fifth Amendment guarantees due process in deportation proceedings.” CamposSanchez 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.” IbarraFlores 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

ZETINO v. HOLDER 2553
and other evidence in support of the application.” VargasHernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007).

We have held that a petitioner’s due process rights are violated 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 counsel, 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 process 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

2554 ZETINO v. HOLDER
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 carrying 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 argument asking the BIA to reverse the IJ’s determination. He

cited specific evidence regarding his fear of his family’s murderers 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 prevent 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.

ZETINO v. HOLDER 2555
B

[11] Zetino’s second argument on appeal is that 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.

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 presenting his case, nor were the proceedings before the IJ fundamentally 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 Immigration 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?”

2556 ZETINO v. HOLDER
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 sufficiently 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 developed 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 process 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 reaZETINO v. HOLDER 2557
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 asylum 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, religion, 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 Salvador because, in 1993, bandits attempting to steal his grandfather’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 political opinions. Rather, he testified that the farm was on fertile

land, and thus valuable. Zetino implied that the only motivation 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 criminals motivated by theft or random violence by gang members

2558 ZETINO v. HOLDER
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 potential harm he would suffer in El Salvador was “on account of”

a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 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 petitioner’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),

ZETINO v. HOLDER 2559
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 discretionary authority to perform an act without prescribing meaningful 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 contravenes the “presumption . . . ‘that executive determinations

are generally subject to judicial review,’ ” slip op. at 16 (quoting 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 [Congress], would limit the federal courts’ jurisdiction,” id. at 17.

Consequently, I would not extend Ekimian’s and DiazCovarrubias’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 called 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 pro2560 ZETINO v. HOLDER
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 section 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 section 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 statutory bar to judicial review as “a very narrow exception.” 401

U.S. at 410. The Overton Park Court explained, “The legislative 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 “statutes 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. [Section 702(a)(2)] applies in different circumstances;

even where Congress has not affirmatively precluded

ZETINO v. HOLDER 2561
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 discretion. 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” standard of review in § 706 — if no judicially manageable 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 earlier, 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 discretion” 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 enacting regulations that deem these actions discretionary. Recog2562 ZETINO v. HOLDER
nizing such authority would fundamentally alter the

constitutional checks and balances put in place by the separation 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 jurisdictionstripping 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 jurisdiction 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 denying the petitioner’s late motion to reopen removal proceedings

because the Attorney General had made such decisions discretionary 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 “Congress barred court review of discretionary decisions only

when Congress itself set out the Attorney General’s discretionary 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 discretion, conferred by the Attorney General, ‘to grant or deny a

motion to reopen,’ 8 CFR § 1003.2(a), but courts retain jurisdiction 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 judicial 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

ZETINO v. HOLDER 2563
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 otherwise, “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 ‘discretionary.’ ” Id. at 17. That result would upset the “congressional 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 controlling or directing the BIA’s decision whether to reopen, and

similarly provides no standard for reviewing the BIA’s decision.” 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 exercising its discretion to implement an administrative closure.”

551 F.3d at 1118. Both courts then held that the lack of meaningful standards set out in the regulations, or otherwise

described in its own decisions, stripped federal courts of jurisdiction 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 reasons. 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 reviewing BIA decisions. The jurisdictional bar required two legisla2564 ZETINO v. HOLDER
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 decisions 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 otherwise, 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

1The 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 discretion 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 decision.” Ekimian, 303 F.3d at 1157-58 (citing 8 C.F.R. § 3.2(a)). This obvious reference to a discretion-conferring regulation as the premise for

application of Heckler’s rule, which requires congressional action, underZETINO v. HOLDER 2565
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 doctrine, 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 proceedings 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. Ashcroft, 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 decisions 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 section.” 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 regulatory 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. 

2566 ZETINO v. HOLDER
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 constitute 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 decisions”); 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 Executive 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

ZETINO v. HOLDER 2567
subject to judicial review.” Nixon v. Fitzgerald, 457 U.S. 731,

781 (1982). If the actions of the Executive are to be immunized 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 regulation, 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 discretion, 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 regulation, 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 district 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 discretion.” United States v. Whitehead, 532 F.3d 991, 995 (9th

Cir. 2008). “When a district court makes a discretionary decision, 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 omit2568 ZETINO v. HOLDER
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 discretion by rejecting the late brief in this case because the petitioner 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 committed 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 governing 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 section III(A)(i), and in the judgment denying the petition.

ZETINO v. HOLDER 2569