Seema Patel v. U.S. Attorney General, 669 F. App'x 973

Seema Patel sought review of the BIA’s final order affirming an IJ’s in absentia removal order.
The BIA set a briefing deadline of February 21, 2014, and mailed Patel notice including that her attorney’s Notice of Appearance was rejected as incomplete.
Patel’s attorney requested an extension on February 18, 2014 (three days before the deadline); the BIA denied the extension.
Patel filed a late brief on March 26, 2014, more than a month after the deadline and after the BIA had denied the extension.
The BIA refused to consider the late-filed brief under its discretionary rule allowing consideration of out-of-time briefs.
Patel challenged the denial as an abuse of discretion and a violation of due process; the court reviewed the BIA’s discretionary decision for abuse of discretion and constitutional claims de novo.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA abused its discretion by denying an extension and refusing to consider a late brief	Patel argued BIA should have granted an extension and accepted her late brief	BIA argued consideration of late briefs is discretionary and denial was within its authority	Court held no abuse of discretion; denial was not arbitrary or capricious
Whether refusal to consider the late brief violated due process	Patel argued denial deprived her of a fair process	Government argued there is no constitutional right to discretionary relief and no substantial prejudice shown	Court held no due process violation; discretionary relief is not constitutionally protected and Patel showed no substantial prejudice

Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th Cir. 2006) (abuse-of-discretion standard; arbitrary or capricious review)
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338 (11th Cir. 2003) (constitutional challenges reviewed de novo; prejudice requirement for due process claims)
Zafar v. Att’y Gen., 461 F.3d 1357 (11th Cir. 2006) (no constitutional right to discretionary relief)

PETITION DENIED.