Diaz-Aparacio

MEMORANDUM ***

Hector Danilo Diaz-Aparacio (“Diaz-Aparacio”), a native and citizen of El Sal *781 vador, petitions for review of a Board of Immigration Appeals (“BIA”) decision upholding an Immigration Judge’s (“IJ”) denial of applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). Diaz-Aparacio raises three issues for review: (1) he claims the BIA abused its discretion and denied him due process by rejecting his untimely brief, (2) he claims his petition for asylum was timely; and (3) he claims substantial evidence does not support the BIA’s denial of his application for asylum. 1 We deny the petition for review in part and dismiss in part for lack of jurisdiction.

Diaz-Aparacio’s first contention fails because we do not have jurisdiction to review an abuse of discretion challenge to the BIA’s rejection of an untimely brief, see Zetino v. Holder, 596 F.3d 517 (9th Cir.2010), and due process is not denied when the BIA rejects a brief that was untimely as the result of petitioner’s counsel’s own mistake, see Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir.2003). Here, Diaz-Aparacio’s counsel admits that the…

concurring in part and concurring in the judgment.

I concur in the majority’s decision to deny the petition. However, for the reasons set forth in my opinion concurring in part and concurring in the judgment in Zetino v. Holder, 596 F.3d 517 (9th Cir. *782 2010), I disagree with the 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. I would find, however, that the BIA did not abuse its discretion in refusing the petitioner’s late brief in this case.

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

FILED

NOT FOR PUBLICATION MAR 03 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

HECTOR DANILO DIAZ-APARACIO, No. 07-74433

Petitioner, Agency No. A078-925-356

v.

MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 9, 2009** Pasadena, California

Before: HALL and TALLMAN, Circuit Judges, and LAWSON, *** District Judge.

Hector Danilo Diaz-Aparacio ('Diaz-Aparacio'), a native and citizen of El

Salvador, petitions for review of a Board of Immigration Appeals ('BIA') decision

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation. upholding an Immigration Judge's ('IJ') denial of…