LOZADA
19 I & N Dec. 637 (1988)
Rule of Law:
A motion to reopen deportation proceedings based on a claim of ineffective assistance of counsel must be supported by an affidavit detailing the agreement with counsel, proof that counsel was informed of the allegations and allowed to respond, and evidence that a disciplinary complaint was filed or an explanation for why it was not.
Facts:
- Lozada, a native of the Dominican Republic, was convicted of obtaining money under false pretenses within five years of entering the United States.
- He was sentenced to confinement for one year or more for this crime involving moral turpitude.
- Lozada retained an attorney to represent him in contesting his deportation and seeking waivers to remain in the country.
- Following an initial loss, Lozada's attorney agreed to handle the appeal process.
- The attorney indicated an intention to file a written brief supporting the appeal but failed to ever draft or submit the document.
- Lozada hired new counsel to challenge the outcome based on the previous attorney's failure to act.
Procedural Posture:
- The Immigration Judge found Lozada deportable and denied his applications for relief under section 212(c) and voluntary departure.
- Lozada filed a Notice of Appeal with the Board of Immigration Appeals (BIA), indicating a brief would follow.
- The BIA summarily dismissed the appeal after no brief was filed to support the notice.
- Lozada filed a petition for review with the United States Court of Appeals for the First Circuit, which stayed action pending the BIA's decision.
- Lozada filed a motion to reopen the proceedings with the BIA alleging ineffective assistance of counsel.
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Issue:
Must an alien seeking to reopen deportation proceedings based on ineffective assistance of counsel satisfy specific evidentiary requirements regarding their agreement with counsel, notification to the accused attorney, and the filing of disciplinary complaints?
Opinions:
Majority - Milhollan
Yes, to allege ineffective assistance of counsel successfully, a respondent must adhere to a strict evidentiary framework. The Board reasoned that because there is a substantial volume of such claims, a high standard is necessary to deter meritless allegations used solely for delay. The Board established that a claimant must: (1) submit an affidavit detailing the agreement with counsel; (2) notify the former counsel of the allegations to allow them to respond; and (3) file a complaint with disciplinary authorities or explain why they have not. In this specific case, Lozada failed to meet these requirements and also failed to demonstrate prejudice, as his criminal conviction rendered him statutorily ineligible for the voluntary departure relief he sought.
Analysis:
This decision is seminal in immigration law as it established the 'Lozada requirements,' a strict procedural framework that persisted for decades. By requiring aliens to file bar complaints against their former lawyers as a prerequisite for relief, the Board aimed to screen out frivolous claims and protect the integrity of the legal profession. The decision highlights the tension between an alien's due process right to competent representation and the administrative need to prevent abuse of the appeals process. It effectively shifted the burden heavily onto the alien to prove not just that the lawyer erred, but that the alien took specific remedial steps before seeking to reopen the case.
