and Submitted November 15, 2018 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A070-786-987
William Rounds (argued) and Mike Singh Sethi, Sethi Law
Group, Orange, California, for Petitioner.
Marie Igoe (argued) and Lyle D. Jentzer, Senior Counsel for
National Security, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
Before: Ronald M. Gould, Barrington D. Parker, [*] and Mary H.
Murguia, Circuit Judges.
panel dismissed in part and denied in part Asif Idrees's
petition for review of the Board of Immigration Appeals'
decision that declined to certify his ineffective assistance
of counsel claim for review under 8 C.F.R. § 1003.1(c),
holding that the BIA's decision not to certify a claim is
committed to agency discretion and is not subject to judicial
C.F.R. § 1003.1(c), the BIA has authority to accept a
procedurally improper appeal by certification. Idrees sought
certification of a claim asserting that his prior
counsel's ineffective representation prevented him from
timely appealing his underlying removal order. The Board had
previously rejected that claim when it remanded the case to
the immigration judge on a separate ineffective assistance of
counsel claim. On remand, the immigration judge denied
relief, and Idrees appealed to the BIA, arguing that the
immigration judge should have certified his ineffective
assistance of counsel claim to the BIA. The BIA declined to
certify the issue, noting that it had already rejected
Idrees's claim when it reopened his proceedings.
panel held that the decision not to certify a claim is
committed to agency discretion under 5 U.S.C. § 701(a),
and is not subject to judicial review. The panel explained
that the plain language of 8 C.F.R. § 1003.1(c) commits
the matter to the BIA's discretion, the regulation
contains no standard for how the agency should exercise its
discretion, and no other regulation or statute provides
guidance on this issue. The panel noted that, although the
BIA stated in In re Liadov, 23 I. & N. Dec. 990
(BIA 2006), that it will certify claims in "exceptional
circumstances," the BIA had not elaborated on which
circumstances are considered to be exceptional and thus
sufficient to merit certification.
panel also rejected Idrees's contention that the denial
of the opportunity to be heard on his ineffective assistance
of counsel claim violates his due process rights, explaining
that abuse of discretion challenges, even recast as due
process claims, do not constitute colorable constitutional
Asif Idrees seeks our review of an April 30, 2015 decision of
the Board of Immigration Appeals (the "BIA")
declining to certify, pursuant to 8 C.F.R. § 1003.1(c),
his claim for ineffective assistance of counsel. For the
reasons set forth below, we conclude that the decision not to
certify Idrees's ineffective assistance of ...