that failed to certify the case to the p i x the issues that should have been raised were whether the ineffective assistance of counsel that led to the reopening of the case also affected the ability of mr de drees to raise certain issues regarding an asylum claim into the convention against torture now the court does have jurisdiction to review these kinds of cases so why is that not committed the sort of occasion part to agency discretion the it is the regulation which gives the agency the authority and the ability to certify case  to the v a and the court would have the authority to review this case under statutory authority eight us twelve fifty two now because i is it that we could review as the regulations they say it is discretionary it is within the discretion of the court to do that and so the standard which would apply would be an abuse of discretion standard there are many cases which apply the abuse of discretion standard in those types of situations where i don't work i'm not sure your understanding of the law here or brady the question of i'm not sure but an administrative action is committed to agency discretion where the governing law is drawn so that the court would have no meaningful standard against which to judge the agency's exercise of discretion that's are under hackler versus chani and it's a supreme court case so i think that's the question that judge a cool does is as asking about now i'm like to know the answer to that too on what basis would we have jurisdiction if there is no standard which we would judge the agency's exercise of discretion in when the agency exercis discretion under regulation that is still under the review of whatever authority congress has given to the agency under statute under statute and in this case whatever  discretion that they have under regulation is still subject to the authority of this court and other reviewing courts that are granted to the agency under statute in order to operate that's just simply not right the law is pretty clear on this that point we're trying to help get you to help us understand is this is just not one of those this is just not a case where we have jurisdiction and unless i'm missing something i think there is there were several cases cited by opposing counsel guarding this issue many of those cases were outside of the circuit but one of the things that was raised in many of those cases was the authority of the appeals courts to review these kinds of discretionary decisions do you know of any case in which the failure to certify has been you know reviewed similar to this was a failure to certify it appealed in that case i believe that that one was an untimely motion to reopen yeah it's different it's or any case out there that slightly different circumstances and we have here there they were dealing with failure to certify a case that was based on a missed deadline and untimely filed appeal and it was essentially those issues it was because  of the appeal was the central issue in that failure to certify that court found that it did not have jurisdiction over the certification i think in this case it is under slightly different circumstances and so i think that you know terrorism sort of issue and remaining issues certainly have not i was not present in that time i don't know what the reason was why out it seems like that affects your case here and he may have had some responsibility in that but i think that when the motion to reopen was drafted originally in two thousand and six and filed with the b o h they really only need one ground upon which to reopen the case and they may have gone with whatever ground they had the most evidence of or whatever ground that they felt was the strongest at the time not that there was nothing else but that was the strongest and the only one that they necessarily needed to talk about your due process claim specifically it appears that you and the government have a slightly different  certify the i c clayton where's your due process claims coming from right it stems from the immigration judge in two thousand and thirteen essentially failing to or refusing to consider the arguments of this renewed claim of asylum based on changed circumstances that immigration judge looked back to the the decision of the b i a and i j from before and said i cannot consider this because it has already been decided plus the b s a has only issued this decision to me for the limited purpose of looking at the adjustment of status application and so the due process issue would be that this individual mr idrees had an opportunity or had a legitimate asylum claim either under asylum withholding or under the convention against torture and the immigration judge did not consider it nor did that judge certify the case to the b a in order to consider whether that was something that the immigration judge should have looked at because of the ineffective assistance of counsel that affected the waiver of those issues that affected the ability of mr injuries to bring some of those claims and some of those issues forward to the judge again after the circumstances have changed after there was a  from what i can see that that's what happened here so i'm just trying to figure out how we can say there was a due process file ations here when there was missteps that occur in this procedure here once the immigration case was reopened after the motion to reopen it should have been opened in order to apply for any relief that was available although the b i stated it purpose for reopening was to consider the adjustment of status application that doesn't necessarily limit the case to only those issues once reopened they can address other issues unless the b s a had very strictly and specifically limited it if they had said that this is reopened exclusively for these issues or soley for these issues then it could have been limited to just the adjusting the status up occasion but once it was reopened it should have been reopened in order to consider any application for relief in fact the immigration judge in two thousand and thirteen was already considering that had already reset the case in order to file any other form of relief that might be the renewed five eighty nine or the asylum withholding and under the convention against torture claim based on the changed circumstances and if there are issues there i mean going all the way back well we would be going all the way back there no this would this would be regarding the claim that attorney made in two thousand and thirteen with the immigration judge the attorney came to the hearing and said judge we would like to file a new asylum withholding and under the convention against torture claim based on changed circumstances and the immigration judge didn't accept or would not accept an application on that basis now if there are issues and there may be going all the way back to the original claim and if those issues are that look at some of these issues where waves such as the bar to asylum such as the credibility of the testimony then we could look at those issues and see if they were waived or if the ineffective assistance of counsel would be available in order to overcome whatever waiver there may have been so there are there's just the answer would be a little bit of both as far as what we're going back to do and look forward to this is good morning your honor the court allison i go senior counsel in the office of immigration litigation representing the attorney general i'd like to just briefly address the due process claim that you raise more here because i need to the problem for mr edris was that his deferral under the convention was based on his marriage she claimed that because he was married to a white christian woman and him being a pakistani muslim he would be tortured in pakistan when he returned and what happened was when it was discovered that his marriage was fraudulent and that his wife had withdrawn the i one thirty media relative petition the immigration judge to look at his deferral clinton said well you you're not going he was based on the difference in religion and so you don't have a claim he currently has another motion to reopen pending or he had a motion to reopen that he filed and a separate one that was based on changed country conditions that was denied and that's actually the subject of a separate currently pending petition for review it's been fully briefed and it's pending in this court so that due process claim was soley on the basis that he that his first term rather attorney great was in effect a for not petitioning for review of the underlying case and i think that you are absolutely correct in when you ask what is he asking to do if the question that he asked the board to certify was whether mr gray was in effect a for failing to file a petition for a view of the port his answer that question twice they answered it in their initial in the initial motion to remand order where they said we're going to remand it he was definitely in effect a for failing to file the immediate relative petition but we find no evidence that he was ever hired to file a petition for view when the case came back up on appeal the board said we don't find any error in the immigration judge not certifying because attorney gray wasn't hired for that purpose we've already answered the question i want answered again and we find that there's no ineffective assistance of counsel there so it's an well it's unclear what the petition is asking for here because even if the court were to find  iction and set that aside for just a moment because we have or you don't believe there is no jurisdiction to review the denial of a certification but even if the court were to say the board should have sort of fighting consider the issue would only go back into court with a well here is the answer we've already given you the answer twice here is a third time so there's no point in even addressing that question but as far as the jurisdiction you know judge called you raised first and i think that because there is no guidance there's no guidance in the regulation that the court had no jurisdiction to consider it did both the second the a from the tenth circuit said the same thing with  pertaining to denials or certification because when you look at the regulation the control certification there is no guidance it merely says that the board can open in exceptional circumstances and it doesn't to find what those exceptional circumstances are so although it's a first it's a case of first impression in this court concerning the denial of a motion to certify i would suggest to the court that the reasoning and i came in really controls the issue about both the second circuit and leave circuit have specifically held there's no jurisdiction to consider the certification issue that is correct in the tenth circuit as well the as well but look there's no president in the in the ninth circuit on this issue should there should should we write an opinion if they're going with the government's position or the other way on the jurisdiction to consider certification well your honor i would certainly if you're going to i certainly would like you to be government's favor but the court could also decide that it is futile to decide the question because there is no relief that he could get so the court could also do that but i would urge the court if you're going to address the jurisdictional question that yes it's an issue of first impression and that  considered it just this case for four years just trying to figure out what's what's happening here c i s certainly has a backlog on just mn applications and it generally takes a significant period of time injuries also had i think seven attorneys he changed his his attorneys very rapidly and often and so that accounted for a certain amount of time as well and then he did not file a timely motion to reopen his motion was delayed so so all in all that accounts for all of the of the time gaps if the court has no further questions thank you thank you very much and we just like to address one issue that was raised and that was whether the b i a had already considered the ineffective assistance of attorney gray now they did a review that in one  circumstance and that is whether his failure to file a petition for review was ineffective assistance but there was another aspect another issue that was not addressed of his ineffective assistance which is whether his failure to advise mr edris about the consequences of either filing or not filing that petition for review that question hasn't been addressed yet by the v a it hasn't been addressed in full by any court whether that affects his claims and so that is part of what we would ask whatever court suit to look at this case to look at and if there's no for the questions  i have one question for you counsel yes do you do you agree with the lawyer for the government that if we were to hold that there's jurisdiction for us to review the lack of certification but that would create a split that would be creating a split that does not currently exist between our circuit and the second and they circuits and maybe the tenth but i'm not creamy with that but it would be creating with that definitely be creating a split between the second but the second or eighth circuit well yes or is there some way to reconcile i believe that there is a way to reconcile it because i believe that those other cases from the other circuits are dealing with sort of occasions in different contexts and it seems like each one of them deals with a situation where the original appeal or brief it's dealing with a completely different issue which is ineffective assistance of counsel and how that affects claims for asylum withholding and under the convention against torture and so i think there is a difference between this