Written by attorney Curtis Frederic Pierce



By Curtis Pierce and Matthew Hall

In the practice of immigration law, attorneys try to help their clients stay in America. In so doing, we are sometimes like good soldiers who do not question their orders, even when these orders are highly distasteful. A case in point concerns the procedures we are instructed to follow when representing a client who has been a victim of “ineffective assistance of counsel." Since this requirement was enacted, many attorneys have struggled with it. How can we properly represent our clients without antagonizing and possibly damaging the livelihood of a colleague that we may see in court next week or next month at a continuing education seminar? This article shall argue that our energies have been misdirected. Instead of struggling with how to comply with this “requirement," we should be fighting for its eradication. HOW DID SUCH A REQUIREMENT EVEN GET STARTED? The first published opinion to set forth the “complaint" requirement was Matter of Lozada. In Lozada, an alien filed a notice of appeal after an Immigration Judge found him deportable. The notice of appeal indicated that the alien would file a separate written brief in support of his appeal. However, his attorney failed to file the brief, and after more than one year had elapsed, the Board summarily dismissed the appeal. The alien filed a Motion to Reopen alleging that his attorney provided ineffective assistance. The Board denied the motion, holding that the alien failed to establish “egregious circumstances" sufficient to prevent the alien from being “bound by the conduct of [his] attorney[]." The Board further held that in order to establish sufficient “egregious circumstances," aliens must, among other requirements, file a complaint with the “appropriate disciplinary authorities," or explain why a complaint has not been filed. The Lozada requirements were subsequently codified at 8 C.F.R. § 208.4 (a)(5)(iii) for cases dealing with ineffective assistance of counsel in the asylum context. Lozada recognized that an alien’s right to counsel is grounded in the 5th amendment guarantee of due process. Magallanes-Damian v. INS, 783 F. 2d 931 (9th Cir. 1986); Paul v. INS, 521 F. 2d 194 (5th Cir. 1975) “Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Lozada citing Ramirez-Durazo v. INS, 794 F. 2d 491 (9th Cir. 1986); Lopez v. INS, 775 F. 2d 1015 (9th Cir. 1985). The alien must demonstrate that the assistance rendered by counsel was not merely ineffective, but rather so ineffective as to have impacted upon the fundamental fairness of the hearing in violation of the 5th amendment’s guarantee of due process. To deal with the situation in which there has been ineffective assistance of counsel, the Board established a procedure that must be followed when an alien or an alien and his representative file a Motion to Reopen. First, Lozada requires that the motion be supported by an affidavit attesting to the relevant facts. This affidavit should include a statement setting forth the agreement that was entered into with the former counsel regarding his representation. Second, before allegations of ineffective assistance of counsel are presented to the Board, the former counsel should be informed of the allegations and allowed the opportunity to respond. Any subsequent response from counsel, or report of counsel’s failure to or refusal to respond, should be submitted with the motion. And finally, “If it is asserted that prior counsel’s handling of the case involved the violation of ethical or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not."Lozada at 639-40. The Lozada requirements were revisited in two BIA cases, Matter of Rivera, 21 I&N Dec. (BIA 1988), and more recently, Matter of Assaad, of 23 I&N Dec. 553 (BIA 2003). In the 2003 case Matter of Assaad, the former Immigration & Naturalization Service asked the board to reexamine the decision in Lozada. Their argument was that since there is no constitutional right to counsel in an immigration proceeding, there should be no basis for claiming ineffective assistance of counsel. The Board upheld Lozada, citing the underlying rationale for the requirements. In Lozada and subsequent cases, the Board has explicitly set forth that rationale. See Lozada. See also Matter of Rivera, 21 I & N Dec. 637 (BIA 1998). The Board has written that the procedural requirements are aimed at providing a basis to evaluate ineffective assistance claims, deterring baseless allegations, and notifying attorneys of the standards for representing aliens in immigration proceedings. The Board further noted in Matter of Rivera that the “complaint" requirement increases the Board’s confidence in the validity of a particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves the Board’s long-term interests in monitoring the representation of aliens by the immigration bar. The Board has reasoned that the validity of a particular claim is enhanced by the “complaint" requirement because it decreases the likelihood of collusion between the original “ineffective" attorney and the alien. See In Re Rivera, 21 I & N Dec. 599, 604 (BIA 1996). CIRCUIT COURT TREATMENT OF LOZADA Since Lozada, multiple circuit court cases have addressed the Lozada requirements. Every circuit that has addressed the issue has generally endorsed the procedural requirements set forth in Lozada. Matter of Azad, 23 I & N Dec. 553 (BIA 2003) citing Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001); Lara v. Trominski, 216 F.3d 487, 489 (5th Cir. 2000); Lata v. I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000). However, Lozada has been limited by the Ninth Circuit, which does not require strict compliance with the procedures where ineffective assistance is clear from the administrative record. See Castillo-Perez v. I.N.S., 212 F.3d 518, 526 (9th Cir. 2000). Lozada has also received criticism from the Third Circuit, which expressed concern that Lozada will be interpreted to “effectively require all petitioners claiming ineffective assistance to file a bar complaint." Xu Yong Lu v. Ashcroft, 259 F.3d 127 (3rd Cir. 2001). Although the language of Lozada allows an alien to explain why a complaint was not filed in lieu of filing a complaint, case law suggests that such a tactic is risky at best, and may ultimately prove fatal. Some of the infrequent examples of successful motions without bar complaints include cases where the alien believed that the attorney had already been suspended for his actions, see Esposito v. I.N.S., 987 F.2d 108, and where the alien was an adolescent who did not speak English, and thus could not be expected to file a bar complaint, see Figueroa v. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989). By contrast, an alien’s explanation that a bar complaint was not warranted against the “ineffective" attorney has been rejected as a reason for not filing a complaint. See Stroe v. I.N.S., 256 F.3d 498, 502-03 (7th Cir. 2001). However, it should be noted that the Stroe Court did not completely foreclose the possibility that a failure to include a bar complaint could be excused by a satisfactory explanation regarding why the offending attorney’s conduct did not warrant a formal bar complaint. Instead, the Stroe Court reached its holding in part because the alien’s explanation “sound[ed] fishy." The alien in Stroe alleged that his previous counsel was ineffective due to his failure to file an appellate brief on time with the Board of Immigration Appeals, which resulted in a dismissal of the appeal. He attempted to justify not filing a complaint by explaining that the attorney’s conduct did not warrant a complaint because the attorney “did prepare and file a brief in [their] case, albeit several months past the deadline." In rejecting this explanation as insufficient under Lozada, the Court noted that Lozada requires “a good explanation, not any old explanation" to excuse a failure to file a bar complaint. The Second Circuit also recognized that a “reasonable explanation can excuse the failure to file a complaint," but like the Seventh Circuit, found that the alien’s explanation was not reasonable enough. Lara v. Trominski, 216 F.3d 487, 498 (7th Cir. 2000).

CONCLUSION As seen from the foregoing, the requirement of reporting one’s colleague to disciplinary authorities is not only repugnant, but also “ineffective." It does not deter collusion; it encourages it. It does not deter frivolous motions to reopen, rather it encourages frivolous bar complaints which are routinely disregarded when they deal with mere negligence as opposed to willful misconduct. The complaint requirement provides no assistance whatsoever determining the crucial issue of whether there has been a violation of due process (caused by ineffective assistance of counsel) as to warrant reopening the underlying case. The proposals offered above are by no means intended as final solutions to the problem of dealing with ineffective assistance of counsel in immigration matters. Rather, they are intended as a call for a new approach which recognizes the current problems and addresses them in an effective and reasonable manner.

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