Vela-Estrada v. Lynch, 817 F.3d 69

Henry Vela-Estrada, a Guatemalan national and lawful permanent resident, was convicted of a drug offense in 2005 and placed in removal proceedings in 2013; an Immigration Judge ordered removal and he was returned to Guatemala on June 20, 2013.
Vela-Estrada filed a late appeal to the Board of Immigration Appeals (BIA) asking the BIA to accept the untimely appeal or certify it under 8 C.F.R. § 1003.1(c), citing ineffective assistance of counsel; he attached a motion to reopen as an exhibit.
The BIA deemed the appeal untimely and declined to certify the appeal under § 1003.1(c); the BIA did not explicitly address the attached motion to reopen.
Vela-Estrada petitioned the court for review of the BIA’s refusal to certify and sought review of the motion to reopen.
The court examined whether the BIA’s refusal to certify an untimely appeal is judicially reviewable under the Administrative Procedure Act (APA), 5 U.S.C. § 701(a)(2).
The court concluded the BIA’s certification decision is committed to agency discretion and therefore unreviewable, but remanded for the BIA to address the motion to reopen because the BIA’s decision did not make clear whether it considered that motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the BIA’s decision not to certify an untimely appeal under 8 C.F.R. § 1003.1(c)	Vela-Estrada: Kucana allows review of agency actions made discretionary by regulation; court should review refusal to certify	Government: The certification decision is discretionary and committed to the BIA by regulation, leaving no judicially manageable standard	Held: Dismissed for lack of jurisdiction — the certification decision is committed to agency discretion and unreviewable under APA § 701(a)(2)

Heckler v. Chaney, 470 U.S. 821 (establishes exception for agency actions committed to agency discretion)
Lunney v. United States, 319 F.3d 550 (2d Cir. 2003) (no judicial standard where law provides no guidance)
Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008) (BIA certification decision not reviewable)
Mahamat v. Gonzales, 430 F.3d 1281 (10th Cir. 2005) (certification decision beyond review)
Kucana v. Holder, 558 U.S. 233 (discusses reviewability of agency decisions made discretionary by regulation but did not decide APA § 701(a)(2) effect)
Zhong Guang Sun v. DOJ, 421 F.3d 105 (2d Cir. 2005) (BIA may hear late appeals in extraordinary circumstances; discussion of limits on review)
Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (BIA’s sua sponte reopening decision committed to agency discretion)
Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) (reiterating lack of review for sua sponte reopening)
Zhao v. DOJ, 265 F.3d 83 (2d Cir. 2001) (Board must adequately explain decisions on motions to reopen)
Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (remand appropriate where BIA misperceives its jurisdiction)