Singh

MEMORANDUM **

Tarlok Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ final order of depor *809 tation and denial of asylum and -withholding of deportation. Singh’s sole contention is that the Board abused its discretion and denied him due process by refusing to accept a one-day late brief in support of his appeal. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA § 309(c). 1 Avetova-Elisseva v. INS, 213 F.3d 1192 , 1195 n. 4 (9th Cir. 2000).

Singh does not dispute that his brief was filed late. It is within the Board’s discretion whether to accept a late brief. 8 C.F.R. § 3.3 (c)(1) (2002). The Board did not abuse its discretion in refusing to accept the brief when Singh never sought an extension of the filing deadline and offered a curt, one-sentence explanation for his dilatoriness: “The petitioner was sick and could not file the brief in time.”

We review de novo whether the Board’s refusal to accept the brief violated Singh’s due process rights. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). To prevail on his due process claim, Singh must demonstrate “error and substantial prejudice.” Lata v.…