Idrees v. Whitaker, No. 15-71573 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. 1003.1(c) is committed to agency discretion. Petitioner, a Pakistani national, sought review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his claim for ineffective assistance of counsel. The panel dismissed the appeal of the failure to certify petitioner's claim and held that it did not have jurisdiction to review the IJ and BIA's decision not to certify. The panel denied petitioner's due process claim challenging the same lack of certification, holding that abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims.
Court Description: 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
The court issued a subsequent related opinion or order on April 30, 2019.
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