FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASIF IDREES,

Petitioner,

v.

MATTHEW G. WHITAKER, Acting 

Attorney General,

Respondent.

No. 15-71573

Agency No.

A070-786-987

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 15, 2018

Pasadena, California

Filed December 13, 2018

Before: Ronald M. Gould, Barrington D. Parker,* and 

Mary H. Murguia, Circuit Judges.

Opinion by Judge Gould

 * The Honorable Barrington D. Parker, United States Circuit Judge 

for the U.S. Court of Appeals for the Second Circuit, sitting by 

designation.
2 IDREES V. WHITAKER

SUMMARY**

Immigration

The panel dismissed in part and denied in part Asif 

Idrees’s petition for review of the Board of Immigration 

Appeals’ decision that declined to certify his ineffective 

assistance of counsel claim for review under 8 C.F.R. 

§ 1003.1(c), holding that the BIA’s decision not to certify a 

claim is committed to agency discretion and is not subject to 

judicial review.

Under 8 C.F.R. § 1003.1(c), the BIA has authority to 

accept a procedurally improper appeal by certification. 

Idrees sought certification of a claim asserting that his prior 

counsel’s ineffective representation prevented him from 

timely appealing his underlying removal order. The Board 

had previously rejected that claim when it remanded the case 

to the immigration judge on a separate ineffective assistance 

of counsel claim. On remand, the immigration judge denied 

relief, and Idrees appealed to the BIA, arguing that the 

immigration judge should have certified his ineffective 

assistance of counsel claim to the BIA. The BIA declined to 

certify the issue, noting that it had already rejected Idrees’s 

claim when it reopened his proceedings.

The panel held that the decision not to certify a claim is 

committed to agency discretion under 5 U.S.C. § 701(a), and 

is not subject to judicial review. The panel explained that 

the plain language of 8 C.F.R. § 1003.1(c) commits the 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
IDREES V. WHITAKER 3

matter to the BIA’s discretion, the regulation contains no 

standard for how the agency should exercise its discretion, 

and no other regulation or statute provides guidance on this 

issue. The panel noted that, although the BIA stated in In re 

Liadov, 23 I. & N. Dec. 990 (BIA 2006), that it will certify 

claims in “exceptional circumstances,” the BIA had not 

elaborated on which circumstances are considered to be 

exceptional and thus sufficient to merit certification. 

The panel also rejected Idrees’s contention that the 

denial of the opportunity to be heard on his ineffective 

assistance of counsel claim violates his due process rights, 

explaining that abuse of discretion challenges, even recast as 

due process claims, do not constitute colorable constitutional 

claims.

COUNSEL

William Rounds (argued) and Mike Singh Sethi, Sethi Law 

Group, Orange, California, for Petitioner.

Alison Marie Igoe (argued) and Lyle D. Jentzer, Senior 

Counsel for National Security, Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C., for Respondent.
4 IDREES V. WHITAKER

OPINION

GOULD, Circuit Judge:

Petitioner Asif Idrees seeks our review of an April 30, 

2015 decision of the Board of Immigration Appeals (the 

“BIA”) declining to certify, pursuant to 8 C.F.R. 

§ 1003.1(c), his claim for ineffective assistance of counsel. 

For the reasons set forth below, we conclude that the 

decision not to certify Idrees’s ineffective assistance of 

counsel claim is committed to agency discretion and is not 

subject to judicial review.

I

Asif Idrees is a Pakistani national. In 1997, he was 

charged under INA § 212(a)(6)(A)(i) as an alien present in 

the United States without permission. Idrees admitted the 

charge and applied for asylum, withholding of removal, and 

protection under the Convention Against Torture (“CAT”). 

Following a hearing, the immigration judge (“IJ”) found that 

Idrees’s membership in the Muttahida Qaumi Movement 

(“MQM”)—which was considered a terrorist organization in 

Pakistan during the relevant time period—barred him from 

asylum and withholding of removal. The IJ further found 

that Idrees was not credible and that he did not prove 

eligibility for protection under the Convention Against 

Torture (“CAT”). The IJ ordered Idrees removed to 

Pakistan. Idrees appealed the removal order to the BIA, 

challenging only the IJ’s adverse credibility determination. 

On June 28, 2005, the BIA dismissed Idrees’s appeal, 

adopting and affirming the IJ’s conclusions in the order of 

removal. Idrees did not petition for judicial review of the 

BIA’s decision.
IDREES V. WHITAKER 5

On April 3, 2006, Idrees filed a “Motion to Reopen 

Removal Proceedings, based on Ineffective Prior Counsel, 

and Prima-Facie Eligibility for Adjustment of Status.” 

Idrees alleged that his attorney, Humberto Gray, was 

ineffective and that Gray’s ineffective representation 

prevented him from timely filing an immediate relative 

petition. Idrees also argued that Gray’s ineffective 

assistance prevented him from timely appealing the 2004 

removal order. The BIA agreed that Gray was ineffective as 

to the immediate relative petition, but concluded that Gray 

did not perform ineffectively by not appealing Idrees’s 

removal order because the scope of the work for which Gray 

had been retained did not include Idrees’s removal 

proceedings. Instead, the record showed that Idrees was 

represented by a different attorney, Thomas Stefanski, in 

Idrees’s removal proceedings during all times relevant to the 

appeal of his 2004 removal order. The BIA reopened the 

case for the limited purpose of permitting Idrees to apply for 

adjustment of status based on his immediate relative petition 

and remanded to the IJ.

On remand, the IJ continued the case many times to 

permit the United States Citizenship and Immigration 

Services (“USCIS”) to process Idrees’s adjustment of status 

petition.1 While his adjustment of status petition was 

 1 On December 2, 2008, after the BIA’s order reopening the case 

and remanding for adjustment, the government withdrew its previous 

charge against Idrees of entering without inspection and lodged a charge 

under INA § 212(a)(7)(A)(i) asserting that Idrees was an arriving alien 

and nonimmigrant who did not possess a valid nonimmigrant visa when 

he applied for admission. The effect of the new charge was to divest the 

IJ of jurisdiction to adjudicate Idrees’s adjustment application. See 

8 C.F.R. § 1245.2 (as a general rule, an alien in removal proceedings 

must file his adjustment application with the IJ, but an alien in removal 
6 IDREES V. WHITAKER

pending before USCIS, Idrees filed a second application for 

asylum based on changed circumstances—namely, that he is 

a practicing Muslim married to a practicing Christian and 

would be persecuted based on his mixed marriage if he 

returned to Pakistan. Idrees’s adjustment of status petition 

was denied in November 2012 after the USCIS determined 

that his marriage was fraudulent and his wife withdrew her 

immediate relative petition. Following a hearing in May 

2013, the IJ determined that Idrees was ineligible for 

adjustment of status or asylum relief and that he was not 

eligible for protection under the CAT. The IJ ordered Idrees 

removed to Pakistan.

Idrees appealed the IJ’s decision to the BIA, arguing that 

the IJ should have certified his claim for ineffective 

assistance of counsel to the BIA for consideration. Idrees 

again argued that Gray’s ineffective assistance of counsel 

prevented Idrees from timely appealing his order of removal. 

The BIA rejected Idrees’s argument and declined to certify 

the issue for review, noting in its order that it had already 

rejected Idrees’s ineffective assistance of counsel argument 

in its 2006 order reopening the case for consideration of 

Idrees’s adjustment of status petition. The BIA affirmed the 

IJ’s removal order, and Idrees petitioned for judicial review.

II

Section 1003.1(c) of Title 8 of the Code of Federal 

Regulations grants the BIA authority to accept a 

procedurally improper appeal by certification. Idrees’s 

principal argument is that the BIA and IJ erred by not 

exercising their discretion under 8 C.F.R. § 1003.1(c) to 

 

proceedings who is classified as an arriving alien must file his adjustment 

application with the USCIS).
IDREES V. WHITAKER 7

certify his ineffective assistance of counsel claim for review. 

Before we can address the merits of Idrees’s argument, we 

must first determine whether a decision not to certify a claim 

under 8 C.F.R. § 1003(c) is subject to judicial review.

Judicial review under the Administrative Procedure Act 

is limited to the review of final agency actions that are not 

statutorily precluded from review or committed to agency 

discretion. 5 U.S.C. § 701(a). An administrative action is 

“committed to agency discretion” when the law is drawn “so 

that a court would have no meaningful standard against 

which to review the agency’s exercise of discretion.” 

Heckler v. Chaney, 470 U.S. 821, 830 (1985). If we 

determine that 8 C.F.R. § 1003.1(c) commits the decision of 

whether to certify a claim to agency discretion, we lack 

jurisdiction to review that decision. This is an issue of first 

impression in this circuit.

We considered a similar issue in Ekimian v. INS, 

303 F.3d 1153 (9th Cir. 2002), and our reasoning in that case 

is instructive here. The petitioner in Ekimian sought review 

of the BIA’s decision not to exercise its power to sua sponte

reopen his case for review, and the government argued that 

we lacked jurisdiction to review the decision. After 

examining the text of what is now 8 C.F.R. § 1003.2,2 which 

grants the BIA authority to “at any time reopen or reconsider 

on its own motion any case in which it has rendered a 

decision,” we concluded that we lacked jurisdiction to 

review the decision. We explained that “[t]he text of 

§ [1003.2] does not provide a standard controlling or 

directing the BIA’s decision whether to reopen, and 

similarly provides no standard for reviewing the BIA’s 

 2 At the time the case was decided, the provision was codified at 

8 CFR § 3.2.
8 IDREES V. WHITAKER

decision.” Id. at 1157–58. We held that we “lack[] 

jurisdiction to review a BIA decision not to reopen the 

proceeding sua sponte under 8 C.F.R. § [1003.2].” Id. at 

1154.

Like the regulation at issue in Ekimian, the plain 

language of 8 C.F.R. § 1003.1(c) commits the matter to the 

BIA’s discretion. That conclusion is apparent from the plain 

language of the regulation itself:

[A]ny Immigration Judge, or the Board may 

in any case arising under paragraph (b) of this 

section certify such case to the Board. The 

Board in its discretion may review any such 

case by certification without regard to the 

provisions of § 1003.7 if it determines that 

the parties have already been given a fair 

opportunity to make representations before 

the Board regarding the case, including the 

opportunity [to] request oral argument and to 

submit a brief.

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. See 

Ekimian, 303 F.3d at 1157 (rejecting petitioner’s argument 

that the BIA’s acknowledgment that it would reopen 

proceedings sua sponte in “exceptional situations” 

established a standard sufficient for review).
IDREES V. WHITAKER 9

Other courts of appeal that have considered this issue 

have concluded that the regulation commits the decision of 

whether to certify a claim to agency discretion. VelaEstrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016) (“In light 

of the lack of meaningful guidance on how the BIA’s 

discretion should be applied . . . [we] conclude that the 

decision not to certify an untimely appeal is committed to 

agency discretion by law.”); Liadov v. Mukasey, 518 F.3d 

1003, 1011 (8th Cir. 2008) (“[T]he BIA’s refusal to selfcertify [is] an unreviewable action committed to the 

agency’s discretion.”); Mahamat v. Gonzalez, 430 F.3d 

1281, 1284 (10th Cir. 2005) (holding that, because the 

regulation lacks judicially manageable standards for judging 

the agency’s exercise of discretion, “the certification issue is 

beyond review”).

We join the Second, Eighth, and Tenth Circuits in 

holding that the decision of whether to certify a claim under 

8 C.F.R. § 1003.1(c) is committed to agency discretion. 

Because we do not have jurisdiction to review the IJ and 

BIA’s decision not to certify Idrees’s ineffective assistance 

of counsel claim, we dismiss his appeal of the failure to 

certify.

III

Idrees also contends that the denial of the opportunity to 

be heard on his ineffective assistance of counsel claim 

violates his due process rights. Although he attempts to 

frame the issue as a separate claim, the crux of the challenge 

centers on the BIA and IJ’s decision not to certify his claim 

for review. We reject this argument because “abuse of 

discretion challenges to discretionary decisions, even if 

recast as due process claims, do not constitute colorable 

constitutional claims.” Vargas-Hernandez v. Gonzales, 
10 IDREES V. WHITAKER

497 F.3d 919, 923 (9th Cir. 2007) (citing Torres-Aguilar v. 

INS, 246 F.3d 1267, 1271 (9th Cir. 2001)).

IV

We do not have jurisdiction to review Idrees’s challenge 

to the BIA and IJ’s decision not to certify his ineffective 

assistance of counsel claim for review, and Idrees does not 

allege a colorable due process claim. We DISMISS his 

challenge to the agency’s decision not to certify his 

ineffective assistance of counsel claim, and we DENY his 

due process claim challenging the same lack of certification.

DISMISSED IN PART AND DENIED IN PART.