APPEAL MATTERS - an Immigration Defense and Expert Advocacy Solutions (IDEAS) Blog

by Lory D. Rosenberg

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 done so.

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).[1]  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, at 639-40.

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 bar'').[2]

There, the BIA emphasized that "the bar complaint requirement acts as a protection against collusion between counsel and client to achieve delay in proceedings." Id.  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.     

The 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

In 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.

The 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.  

Accordingly, 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.

[1] "First . . .  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 640.

[2]  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).

About The Author

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

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