Lightening up on Lozada
Appeal and access to the federal courts is an essential underpinning of agency accountability, insuring that fairness is observed and justice is served in the implementation of United States immigration laws. As the potential for realization of true immigration reform grows, no desire for legislative simplicity, no concern over excessive enforcement, and no plan for expeditious processing of the greatest number of immigrants, however laudable each of these goals may be, is more important than the right to impartial review, and that .... APPEAL MATTERS
"Lozada" has come to have its own special meaning
in immigration parlance, as in "you'll need to do a Lozada," or you
can't claim ineffective assistance of counsel to support reopening of a case
for a client who was poorly represented by prior counsel, unless you first file
a "Lozada motion" first. It
also represents a longstanding over- reaction by the Board of Immigration
Appeals to administrative concerns about the potential for attorney misfeasance
towards the immigration court and the BIA, and the BIA's opposite under-reaction
to the actual effects of misfeasance and nonfeasance committed by some attorneys
towards their clients.
This by no means is meant to suggest that the many
dedicated, diligent, and brilliant immigration lawyers who populate this
important field of law are anything short of outstanding and among the most
esteemed attorneys. It is these
attorneys on whom the burden falls to grapple with the inconceivable blunders
and often unethical performance of the attorneys who preceded them. Moreover, they
undertake to do so in the rigid and form- over-content framework of the BIA's controlling
precedent decisions on ineffective assistance of counsel.
Which is why the decision of Chief Judge Kozinski, writing for a panel of
the Circuit Court of Appeals for the Ninth Circuit in Correa-Rivera v Holder, No. 08-72258 (9th Cir. 2/6/2013) is
cause for celebration. In Correa-Rivera,
the panel recognized that under it's jurisprudence, "[t]hese requirements 'are not rigidly applied, especially when the
record shows a clear and obvious case of ineffective assistance.' " Id. (citing Rodriguez-Lariz v. INS,
282 F.3d 1218, 1227 (9th Cir. 2002). Although
it appears from the record that the prior attorney's nonfeasance in failing to
file an application for relief was blatant, the panel found it unnecessary to
determine whether the Lozada requirements
should be waived on that basis. Instead,
they found that the BIA erred in holding that Rivera failed to comply with the third Lozada requirement because he did not provide "probative
evidence" that he made a bar complaint and simply asserted that he had
The BIA is especially strict about Lozada motions, and
requires strict adherence to the 3 procedural requirements announced its
precedent decision in Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988). Underlying this mandate, is the BIA's unwavering belief that "[the
requirements] . . . were necessary to provide a basis for evaluating the many
claims presented, to deter baseless allegations, and to notify attorneys of the
standards for representing aliens in immigration proceedings. Matter of Lozada, supra,
In the 25 years
since pronouncing these requirements, the BIA hasn't budged in routinely denying any
appeal or motion that does not include evidence that each and every one of the
3 prongs in Lozada has been fully satisfied. What is more, in 2003, the BIA again endorsed wholeheartedly
the "further policy reasons for the 'complaint' requirement of Matter
of Lozada, [noting] . . . that such a filing increases our confidence in
the validity of the particular claim, reduces the likelihood that an
evidentiary hearing will be needed, and serves our long-term interests in
monitoring the representation of aliens by the immigration bar." Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (citing
Matter of Rivera -Claros, 21 I.
& N. Dec. 599, 605 (BIA 1996) (emphasizing the BIA's concern about
attorney-client collusion and its ''long-term interests in policing the immigration
the BIA emphasized that "the bar complaint requirement acts as a protection
against collusion between counsel and client to achieve delay in proceedings."
Ironically, this rationale was asserted during a period in which the
BIA docket was so backlogged that appeals were lingering for 3-10 years without
adjudication, and immigration judges in many locations were scheduling cases1-2
years ahead due to grossly overcrowded local dockets. Hardly an atmosphere likely to trigger a litigant's
temptation to stall, or in which the BIA would need to quash "collusion"
between a client and his attorney to create delay.
As for the BIA's confidence in the validity of the
particular claim, it is undisputed that the right to counsel in immigration
matters is most often addressed in the breach.
Indeed. in light of Lozada, the substantive merits of the claim of
ineffective counsel may never be reached, and we may never be assured that counsel's
representation was effective.
BIA concedes that ineffective counsel can impede the measure of fundamental
fairness, or due process, to which a respondent in removal proceedings is
entitled. The BIA, however, unquestionably is more concerned about a litigant's
compliance with the 3 procedural prongs, which purportedly preserve the
integrity of the hearing process, than with actual ineffective assistance that
may be beyond dispute and glaringly reflected on the face of the record. Indeed, in Matter
of Assaad, supra, the complaint
of ineffectiveness turned on prior counsel's failure to appeal, which was
apparent on the face of the record, but the motion was denied for failure to
comply with Lozada.
the Ninth Circuit's decision, the Court took issue with the fact that the
"BIA faulted Correa-Rivera for failing to provide 'correspondence from the
Bar indicating receipt of the complaint,'" stating that "Lozada doesn't
require that a petitioner present 'probative evidence' of having submitted a
complaint to the bar, much less correspondence from the bar acknowledging such
a complaint." The Court
distinguished the third Lozada
requirement from the two preceding it, and stressed that "Lozada suggests
only that the motion 'should reflect' whether such a complaint has been filed.
19 I. & N. Dec. at 639." This
is most significant because it is distinct from prior circuit court decisions
differing with the BIA's reading of Lozada.
Previously, the BIA has acknowledged that "some courts
have taken a "broad" view of the Lozada requirements, holding that we
should apply a flexible approach by not mandating strict adherence to all of
the Lozada steps in every case."
To date, the BIA has dismissed such ideas, stating that it would
"apply such circuit law as is appropriate in each circuit." The result: in any circuit that has not had
the occasion to address the issue and recommend or require flexibility, the BIA
will persist in its strict application.
Ninth Circuit's decision, however, is not merely based on a "broad
view" as opposed to a more strict reading of the Lozada standard. It is based
on an interpretation of the literal language 'should reflect,' introduced by
the BIA itself, and adopted repeatedly by the BIA in its precedent decisions
over a 25 year period. This decision is
well-worth reading for a number of reasons,
including that the prior attorney acknowledged his ineffectiveness in
promising but failing to file an application, and that Correa-Rivera included a copy of the
bar complaint he filed with the papers he filed with the BIA.
the next move is for the BIA to take with respect whether a credible statement
that a bar complaint has been filed sufficiently "reflects"
compliance with the third Lozada requirement. The alternative? The Ninth Circuit's invitation to the BIA to
modify its precedent. One hopes that
before undertaking any such modification, the BIA reflect on the underlying
purpose for accommodating claims of ineffective assistance of counsel, be mindful
of it's own understanding that "[i]t is clear that Matter of Lozada provides
a measure of protection for aliens who are prejudiced by incompetent counsel,"
and hesitate before adding more procedural baggage to a verifiable, public
action such as the filing of a bar complaint.
. . . the alien must submit an affidavit
detailing the agreement that was entered into with counsel with respect to the
actions to be taken and the representations counsel made or did not make in
this regard. [Second] . . . the alien
must inform counsel of the allegations of ineffective assistance and give him
or her the opportunity to respond.
Finally, we concluded that the alien must file a complaint with the
appropriate disciplinary authorities, such as a state bar, with respect to any
violation of counsel's ethical or legal responsibilities, or adequately explain
why no filing was made." Id. at
 For an in depth discussion of Matter of Assaad, supra, see 8 Bender's Immigration Bulletin 943, IT'S ALIVE:
A NONCITIZEN'S RIGHT TO COMPETENT COUNSEL BEFORE THE EOIR AND USCIS AFTER MATTER
OF ASSAAD (June 2003).
Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a unique immigration law consulting and mentoring practice providing high-achieving immigration lawyers, leaders and businesses with comprehensive analysis, strategy, expert opinion, and collaboration, so they can successfully obtain visa approvals and lawful permanent residence, defend against removal, and win appeals for their clients despite complex and challenging circumstances. Ms. Rosenberg is a national speaker and former adjunct professor, who served from 1995-2002 as an appellate immigration judge on the Board of Immigration Appeals. She is co-author of the leading treatise, Immigration Law and Crimes, was a featured columnist for Benders Immigration Bulletin (2002-2007, and has extensive experience as a legal analyst, practitioner, writer, trainer, non-profit director, litigator, policy advocate, and decision-maker involving immigration law and policy. Her website is www.ideaswithlory.com.