Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Idrees v. Barr

United States Court of Appeals, Ninth Circuit

April 30, 2019

Asif Idrees, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted November 15, 2018 Pasadena, California

          Filed December 13, 2018

          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.

          Kristin Macleod-Ball, American Immigration Council, Brookline, Massachusetts, for Amicus Curiae American Immigration Council.

          Before: Ronald M. Gould, Barrington D. Parker, [*] and Mary H. Murguia, Circuit Judges.

         ORDER AND AMENDED OPINION

         SUMMARY[**]

         Immigration

         The 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 opinion.

         In the 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.

         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 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.

         The 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.

         The 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 error; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.