Asif Idrees v. Matthew Whitaker, 910 F.3d 1103

Petitioner Asif Idrees, a Pakistani national, was ordered removed after an IJ found him not credible and barred from asylum/withholding due to membership in MQM and denied CAT protection.
Idrees did not seek judicial review of the BIA’s 2005 dismissal of his appeal.
In 2006 Idrees moved to reopen, alleging ineffective assistance by prior counsel (Gray); the BIA found Gray ineffective only as to an immediate-relative petition, reopened limitedly for adjustment of status, and remanded.
On remand USCIS later denied adjustment (marriage found fraudulent); the IJ again denied relief and ordered removal; Idrees appealed, arguing the IJ/BIA should have certified his ineffective-assistance claim under 8 C.F.R. § 1003.1(c).
The BIA declined to certify, noting it previously addressed the ineffective-assistance contention; Idrees sought judicial review claiming the refusal to certify is reviewable and also raised a due process challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA/IJ refusal to certify a claim under 8 C.F.R. § 1003.1(c) is judicially reviewable	Idrees: refusal to certify his ineffective-assistance claim is reviewable and was erroneous	Govt/BIA: the decision is discretionary and unreviewable; no judicially manageable standard exists	Held: Unreviewable — the decision whether to certify is committed to agency discretion; court lacks jurisdiction to review
Whether denial of certification violated Due Process	Idrees: refusal to certify denied him an opportunity to be heard on ineffective-assistance (a constitutional right)	Govt: denial is a discretionary decision; recasting it as due process does not make it reviewable	Held: Not a colorable due process claim; denied

Heckler v. Chaney, 470 U.S. 821 (decision not to act is committed to agency discretion)
Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (BIA refusal to sua sponte reopen is unreviewable)
Vela-Estrada v. Lynch, 817 F.3d 69 (2d Cir. 2016) (refusal to certify untimely appeal committed to agency discretion)
Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008) (BIA refusal to self-certify is unreviewable)
Mahamat v. Gonzalez, 430 F.3d 1281 (10th Cir. 2005) (certification decision lacks judicially manageable standards)
Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007) (abuse-of-discretion decisions recast as due process claims are not colorable)

Disposition: Dismissed in part (jurisdictional dismissal of certification challenge) and denied in part (due process claim).