BIA Holds That Attorney’s Acceptance Of Responsibility For Error Does Not Discharge The Disciplinary Authority Complaint Obligation Under Matter Of Lozada, 19 I&N Dec. 637 (BIA 1988), Particularly Where The Ineffective Assistance Allegation Is Rendered By The Same Attorney Against Himself. A Respondent Seeking Reopening On The Basis Of A Claim Of Ineffective Assistance Of Counsel Must Show A Reasonable Probability That, But For Counsel’s Error, He Would Have Prevailed On His Claim.
On December 4, 2020, the Board of Immigration Appeals (BIA or Board) denied Respondent’s motion to reopen, the 2nd time the case has been before the tribunal; previously, the BIA had dismissed Respondent’s appeal from an order of removal issued by an Immigration Judge (IJ) and, at that time, had denied his motion to remand to apply for adjustment of status on the basis of an approved I-130 visa petition filed by his son. The timely-filed motion to reopen was based on a claim of ineffective assistance of counsel.
Respondent’s claim of ineffective assistance during the pendency of his appeal was partially complicated by the fact that his attorney is still his lawyer, i.e., his claim was made against his current counsel, who represented him before the IJ and the BIA and continued to represent him in the motion. The contention there was that the lawyer had not asked Respondent for information regarding his rehabilitation or other positive factors and thus failed to submit sufficient evidence to establish that he was entitled to a remand to apply for adjustment when the case was initially on appeal.
In the beginning of its decision, the Board noted that Lozada had held that a claim for ineffective assistance of counsel should reflect whether a complaint has been filed against the attorney with the appropriate disciplinary authorities and, if not, why not. In the motion to reopen, Respondent stated that no complaint had been filed because “counsel has taken responsibility for the error and the error is clear.” But, countered the opinion, the requirement of filing a complaint “cannot be so easily discharged,” because otherwise the obligation “is rendered inconsequential.” In other words, concluded the BIA, if this claim were permitted, it would render Lozado ineffectual.
The Board emphasized that, in this instance, a bar complaint serves to protect against collusion between a respondent and his or her attorney such that ineffective assistance is tolerated and goes unchallenged before disciplinary authorities resulting in “a benefit” to the client, “in that delay can be the desired end, in itself, in immigration proceedings.” Here, the decision concluded that Respondent had not stated a valid reason for not filing a bar complaint, such as the death or disbarment of his counsel, and his reason was for a “self-serving purpose.” The BIA held that Respondent had therefore not satisfied the requirements of Lozada. Further, even assuming the attorney had rendered ineffective assistance and Respondent had satisfied the procedural requirements, he had not proven prejudice on account of his attorney’s errors; he needed to establish a reasonable probability that, but for his attorney’s mistakes, he would have obtained a remand to file for adjustment. Lozada’s remedies, found the opinion, are reserved for those who have suffered significant harm and can make a clear showing that they would have prevailed on their claim, but for counsel’s error.
Respondent also asserted that the added documentation he filed with the motion to reopen established his entitlement to a discretionary grant of adjustment but the Board disagreed, finding the additional information regarding his criminal record did not erase its concerns regarding “the number of encounters he has the with law enforcement and the extended period over which these encounters have occurred.” Nor did this evidence dispel the BIA’s concerns regarding Respondent’s conviction for child abuse under Utah law, an offense, noted a footnote, that had as an element a measure of recklessness, and was a strong negative factor weighing against a grant of adjustment. Additionally, Respondent did not submit statements from his children and the letters he did file were “not sufficient to outweigh his long history of arrests and his convictions for child abuse, assault, and disorderly conduct.” Matter of Melgar, 28 I&N Dec. 169 (BIA 2020).