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In Search Of Lozada’s Proper Path For Immigration Appellate Review

– Posted in: Immigration Appeals
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I’m not an unequivocal fan of Lozada motions to reopen cases for ineffective assistance.

It’s not that I think immigrants are never the victim of incompetent guidance, duplicity, or outright corruption.

It’s not that I think lawyers, like judges, are incapable of mistakes.

After, all, as an immigration appeals lawyer, I’ve seen many examples of less-than-stellar performance by colleagues.

Rather, my disenchantment is that despite its’ ballyhooed status in some immigration circles, the Lozada formula falls short of its goals.

There are three primary shortcomings.

It fails to protect the integrity of the court, immigrant clients, or immigration attorneys.

Yet, improvements can be made that enhance the potential for justice to prevail when immigrants have been truly subjected to deficient services.

The History Of Lozada Motions

In Matter of Lozada, the immigrant, after losing his case, filed a notice of appeal with the Board of Immigration Appeals.

The notice informed the Board that Mr. Lozada would file a written brief in support of his appeal. His attorney failed to file the brief.  Over a year later, the appeal was dismissed.

About six months afterwards, Lozada filed a motion to reopen, alleging his attorney’s failure constituted ineffective assistance.

The Board denied his motion. It held Lozada had not shown egregious circumstances sufficient to prevent the immigrant from being bound by the conduct of his attorney.

Stressing the need to articulate a standard of review for assessing ineffective assistance of counsel claims, the BIA explained when essential information is lacking, it is impossible to evaluate the substance of such accusations.

Hence, the Board set forth new procedures to help gauge such claims, deter baseless allegations, and afford attorneys, whose integrity is being impugned, an opportunity to respond to the charges leveled against them.

Now known as Lozada motions, there are three prongs to the Board’s review:

  • The allegations must be supported by an affidavit of the aggrieved immigrant setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent;
  • The representative whose competence is being impugned must be informed of the allegations and provided an opportunity to respond;
  • The motion to reopen must reflect whether a formal complaint has been filed with appropriate State Bar authorities regarding the lawyer’s ethical or legal responsibilities, and if not, why not.

The Board’s intentions were praiseworthy.

The history of Lozada motions is far less commendable.

Failure To Protect The Integrity Of Immigration Courts

In an article entitled “Lightening Up On Lozada“, Lory Rosenberg, a former member of the Board of Immigration Appeals, shared a critical weakness of Lozada motions.

The adherence to form over substance.

In weighing the merits of Lozada claims, both the BIA and federal courts have too often reached their decisions on whether the procedural requirements of Lozada motions have been met, despite strong substantive evidence that an injustice has occurred.

According to Rosenberg, this is caused by a confluence of two factors.

First, the BIA  has a tendency to over-react to the potential for attorney misfeasance (the performance of a lawful action in an improper or deficit manner).

Second, the BIA under-reacts to the actual effects of misfeasance and nonfeasance (the failure to act when there is a duty to act on behalf of their clients).

To illustrate, Rosenburg pointed to Correa-Rivera v. Holder.

In that case, Correa-Rivera surrendered to immigration authorities after living in the U.S. illegally for thirty years. At immigration court, he conceded removability and noted that he would seek cancellation of removal. He filled out the application but his lawyer did not file it with the court.  After the filing deadline passed, the judge deemed his application to be abandoned. He was ordered to be removed.

Correa-Rivera appealed to the BIA. He alleged ineffective assistance of counsel and sought to reopen his case under Lozada. In his filing, he did not provide the Board with correspondence from the State Bar indicating their receipt of the complaint. The BIA denied his appeal, holding he failed to comply with the requirements set out in Matter of Lozada.

Although it was clear Correa-Rivera’s lawyer had failed to act when he was under a clear duty to perform, the Board denied his case on procedural grounds.

The BIA decision was ultimately reversed by the Ninth Circuit Court of Appeals.

Nonetheless, the Board remained rigid about compliance to the three procedural prongs of Lozada motions.

In the 40+ years since pronouncing these requirements, the BIA hasn’t budged in denying Lozada motions that do not include evidence that each of the three conditions have been fully satisfied.

Under the Board’s approach, the substantive merits of a claim of ineffective counsel are often not reached, and the question whether counsel’s representation was effective is never examined.

Over the four decades since the Lozada formula was promulgated, the Board’s decisions reflect greater concern with adherence to procedural prongs, which purportedly preserve the sanctity of the hearing process, than with actual ineffective assistance that is beyond dispute and glaringly reflected on the face of the record.

The prioritization is backwards.

Appellate review which fails to protect our notion of fundamental fairness cannot be said to safeguard judicial integrity.

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Failure To Protect The Integrity Of Immigration Clients

In Al-Saka v. Sessions, the Sixth Circuit Court of Appeals denied an ineffective assistance of counsel claim based on an alleged mixture of misfeasance and nonfeasance.

The court’s ruling was based on an inquiry into the Fifth Amendment promises of due process, as well as a review under the Lozada framework.

Its analysis went outside the restrictions imposed by the second prong of the Lozada requirements, avoiding the necessity of a State Bar complaint.

On appeal, Al-Saka argued that his trial attorney’s deficient performance prejudiced him.  He asserted that the failure to subpoena his ex-wife and her mother, or to hire an expert in Islamic matrimony customs prejudiced the outcome of his case, and therefore constituted ineffective assistance.

The Circuit Court held that these were tactical decisions.  They did not undermine the fairness of the immigration court proceedings.  Moreover, Al-Saka had not shown how such actions would have changed the outcome of his case.

Under due process guarantees, emphasized the Sixth Circuit, the duty of the presiding judge is to protect the integrity of immigration court hearings.  But it is not the judge’s obligation to police poor lawyering.

Added the court, the decision to stick with an attorney who is not performing in a competent manner, does not rise, by itself, to a constitutional violation of due process.

Yet, given the specific facts of a case, an underwhelming performance might be sufficient to compel reopening a case under Lozada.

In my Hemet immigration practice, I’ve read transcripts where immigration judges openly expressed their frustrations about the paucity and disorganization of evidence provided by immigrants and their lawyers.  The blame is almost always placed on the immigrants.

Upon my review of the entire case file, it’s obvious sometimes trial counsel services were deficient. Both misfeasance and nonfeasance are often present, in plain view for judicial officers to discern.

But if due process concerns at immigration court are limited to issues like an interpreter’s ability to accurately translate testimony, the judge’s duty to ensure fundamental fairness for immigrants is relatively non-existent.

A judge, in other words, may not have the obligation to police poor lawyering, but he has the duty to admonish subpar performance that borders on contempt of court.

In not protecting the virtue of the court in such situations, Lozada motions diminish the integrity of immigrants.

Failure To Protect The Integrity Of Immigration Attorneys

Although the BIA purports that the Lozada framework provides immigration attorneys a chance to defend themselves against false claims, the Board overlooks a critical step in the appellate process.

The post-decision review.

The Board does not notify the accused lawyer of its decision. It represents a glaring absence in the Lozada framework.

In many cases, when immigrants file motion to a  reopen under Lozada and loses, they proceed to the next step.  They challenge the Board decision with a federal circuit court appeal,

The lawyer who is the subject of the Lozada grievance is neither informed about the BIA decision, nor notified of the federal appellate filing.

This is a woeful omission, especially in cases involving immigrants who raise frivolous or unjustified complaints against prior counsel.

Yes, that happens, despite wishful thinking to the contrary.

In my practice as a deportation defense attorney, I’ve met several individuals who lamblast their prior counsel, alleging poor performance, and refuse to understand their misgivings are based on the outcome of legitimate tactical choices made with their own concurrence.

At times, the problem is caused by the failure of clients to comprehend the case strategy. This can be traced in some cases to poor attorney-client communications.

On the other hand, every now and then, the client anger stems from having lost, despite an attorney’s best efforts.

The reality is that rarely are cases perfectly handled by counsel.  But imperfection is not tantamount to incompetence or neglect.

Immigration reality is far more benign.  Immigration cases are difficult.  Immigration rules are complex.  Presenting evidence is a difficult art to master.

And, impressing certain judges is next to impossible when their world view towards foreigners are negatively skewed from the outset.

Some cases are horrendously weak from the get-go.  Placed in proceedings after being arrested for driving under the influence, the immigrant must defend against deportation based on his current equities.  Supporting evidence is sparse.

When the judge issues an adverse ruling, the client and his family blame the attorney for the defeat.  The impact of a minor ommission or shortened testimony becomes the basis for the immigrant’s exaggerated claims of inadequate lawyering,

This resembles how some sparring parties in a divorce case tarnish domestic violence rules.  It’s not uncommon for less-than-honest victims to gorify transgressions in an attempt to manipulate provisions of divorce law created for their protection.

It’s not uncommon for such individuals to be assisted by less-than-honest attorneys.

To them, winning is the only thing that matters.  Or getting paid.

They’re wrong.

I’m suspect some of my family law and immigration brethren will take offense with my comments.  Yet, the best way to curb such behavior is to shine light on it.  I feel slight discomfort, but not anguish, about deciding to let the cat out of the bag.

It’s time we drop the pretense behind legal shibboleths used by false victims in legal  proceedings.

A client’s misunderstanding of the immigration process, tactics, and strategy should never be used to justify embellished Lozda actions.

To the extent Lozada motions are intended to protect clients from ill effects of inadequate representation, the net need not be so widely cast as to ensnarl hard-working counsel in a process that does not fully preserve their ability to defend their professional integrity.

Revising The Road To Appellate Justice

As outlined above, the Lozada formulation often sets the bar too tight for legitimate claims, deprives immigrants of due process, and permits frivolous claims to slip through the cracks.

This does not mean Lozada motions should be curtailed.  Rather, the requirements need to be revised and augmented.

Two principles should guide this effort.

First, legitimate claims of ineffective assistance, whether or not they meet the strict commands of the Lozada formula, should be enabled.

Second, frivolous assertions, whether presented by a immigrant or his attorney, should be subject to potential sanctions.

Patching the holes in the Lozada blueprint is warranted and feasible.

Such upgrades would bring the Board’s goals to protect the court, immigrants, and immigration attorneys closer to substantive fulfillment.

And the implied promise of justice would become less of a hallow phrase in the immigration court appellate process.

By Carlos Batara, Immigration Law, Policy, And Politics

 

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