Idrees v. Barr, 923 F.3d 539

Asif Idrees, a Pakistani national, was ordered removed after an IJ found him not credible and barred from asylum due to alleged MQM membership; BIA affirmed in 2005 and he did not seek judicial review.
In 2006 Idrees moved to reopen based on ineffective assistance by counsel (Humberto Gray); BIA found Gray ineffective as to an immediate-relative petition, reopened limitedly for adjustment, but concluded a different attorney handled the removal appeal.
On remand Idrees filed a new asylum claim; USCIS denied his adjustment application in 2012 and the IJ again ordered removal in 2013; BIA affirmed and declined to certify Idrees’s ineffective-assistance claim under 8 C.F.R. § 1003.1(c).
Idrees petitioned for review, arguing the IJ/BIA abused their discretion by refusing to certify his ineffective-assistance claim and that denial violated due process.
The Ninth Circuit considered whether the decision not to certify under § 1003.1(c) is judicially reviewable and whether Idrees alleged a colorable due process violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA/IJ decision not to certify under 8 C.F.R. § 1003.1(c) is reviewable	Idrees: refusal to certify ineffective-assistance claim is reviewable error	Govt/BIA: regulation commits certification to agency discretion, no judicially manageable standard	Decision not to certify is committed to agency discretion and unreviewable; appeal dismissed
Whether the denial to certify amounts to a due process violation	Idrees: denial deprived him of opportunity to be heard on ineffective-assistance claim	Govt: an abuse-of-discretion claim recast as due process is not a colorable constitutional claim	Due process claim denied (not colorable)
Whether court could review discretionary agency acts where regulation appears to commit decision to agency	Idrees: (implicitly) could be reviewable if legal/constitutional errors present	Court: courts may review if there is "law to apply," but Idrees did not allege such legal/constitutional error	Court notes limited review possible in other contexts but not here because no legal/constitutional error alleged
Scope of relief requested (certification or rehearing)	Idrees sought certification/rehearing of ineffective-assistance claim	BIA opposed; petition for rehearing and rehearing en banc denied	Petitions for rehearing and rehearing en banc denied; no further petitions will be entertained

Heckler v. Chaney, 470 U.S. 821 (1985) (agency decisions committed to discretion when no judicially manageable standards exist)
Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (BIA decision not to sua sponte reopen under 8 C.F.R. committed to agency discretion)
Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (where law to apply exists, review may be appropriate even if regulation confers discretion)
Vela-Estrada v. Lynch, 817 F.3d 69 (2d Cir. 2016) (BIA refusal to certify untimely appeal is unreviewable agency discretion)
Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008) (BIA refusal to self-certify is an unreviewable discretionary action)
Mahamat v. Gonzales, 430 F.3d 1281 (10th Cir. 2005) (certification decision lacks judicially manageable standards and is beyond review)
Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007) (abuse-of-discretion challenges recast as due-process claims are not colorable constitutional claims)
Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) (similar principle that discretionary agency decisions do not automatically become constitutional claims)