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Idrees v. Whitaker

United States Court of Appeals, Ninth Circuit

December 13, 2018

Asif Idrees, Petitioner,
v.
Matthew G. Whitaker, Acting Attorney General, Respondent.

          Argued and Submitted November 15, 2018 Pasadena, California

          On 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.

          Alison 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.

         SUMMARY [**]

         Immigration

         The 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 review.

         Under 8 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.

         The 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.

         The 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 claims.

          OPINION

          GOULD, Circuit Judge.

         Petitioner 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 ...


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