The Ninth Circuit has determined that the Board of Immigration Appeals’ decision to certify an untimely appeal is a discretionary determination, not subject to judicial review. “The regulation contains no standard for how the agency should exercise its discretion in determining whether to certify a claim for review. And no other regulation or statute provides guidance on this issue. The BIA has stated that it will certify claims in ‘exceptional circumstances,’ In re Liadov, 23 I. & N. Dec. 990, 993 (BIA 2006), but it has not elaborated on which circumstances are considered to be exceptional and thus sufficient to merit certification.”

The full text of Idrees v. Whitaker can be found here: