                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 ASIF IDREES,                                     No. 15-71573
                                Petitioner,
                                                  Agency No.
                     v.                          A070-786-987

 MATTHEW G. WHITAKER, Acting
 Attorney General,                                  OPINION
                    Respondent.



          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. Vela-
Estrada 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 self-
certify [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.
