and Submitted November 15, 2018 Pasadena, California
December 13, 2018
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.
Kristin Macleod-Ball, American Immigration Council,
Brookline, Massachusetts, for Amicus Curiae American
Before: Ronald M. Gould, Barrington D. Parker, [*] and Mary H.
Murguia, Circuit Judges.
AND AMENDED OPINION
panel filed: (1) an order that amended its opinion filed on
December 13, 2018, and published at 910 F.3d 1103, denied
petitioner's petition for rehearing and rehearing en
banc, and ordered that no future petitions for rehearing or
rehearing en banc will be entertained; and (2) an amended
amended opinion, 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, in this case, not subject to judicial review.
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 BIA had
previously rejected that claim when it reopened and 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).
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.
Accordingly, the panel concluded that it did not have
jurisdiction to review Idrees's challenge to the decision
not to certify his claim.
panel noted that it did not hold that judicial review of the
BIA's refusal to certify a case is never appropriate,
observing that, in other contexts, the court has held that,
even where a regulation commits a matter to agency
discretion, the court may review the decision if there is
"law to apply" in doing so. However, the panel
explained that Idrees did not assert that the BIA and
IJ's refusal to certify his claim for ineffective
assistance of counsel rested on any constitutional or legal