What Is A Lozada Motion?
Essentially, a Lozada motion is a three-part test set forth to guide the BIA’s review of ineffective assistance of counsel claims brought by immigrants. These motions are normally filed after an adverse decision has been issued against immigrants, who allege their defeat was caused by their legal representative’s actions (or lack of actions).
What Are The Filing Requirements For Lozada Motions?
The stated purpose in Matter of Lozada, according to the BIA, is to protect the due process rights of immigrants and the integrity of removal proceedings.
In order to perfect a claim, an immigrant must file a motion to reopen and meet the three prongs of the Board’s Lozada test:
- 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.
Not all allegations that an attorney’s performance has been deficient are straight-forward. Unraveling the facts of what really happened can be difficult, even for the most diligent courts.
To avoid frivolous, exaggerated, or unjustified claims against prior counsel by less-than-honest victims who allege false transgressions in attempts to manipulate provisions of law created for real victims, immigration judges are required to carefully review such claims.
Three Types Of Ineffective Assistance
There are three distinct types of ineffective assistance by attorneys in immigration cases: malfeasance, misfeasance, and nonfeasance.
- Malfeasance is intentional conduct that is wrongful or unlawful. From a moral and ethical perspective, this is the most seriously defective of the three.
- Nonfeasance is the failure to act when there is a duty to act, the failure to do what ought to be done.
- Misfeasance is the performance of a lawful action in an improper or deficient manner, the doing of an act in a wrongful or injurious way.
Let’s take a brief look at each one separately.
Ineffective Assistance Based On Malfeasance
Because malfeasance is an unprincipled abuse of professional trust, most courts would have no problems declaring such actions to be ineffective assistance.
Ineffective Assistance Based On Nonfeasance
Similarly, the second type of ineffective assistance, nonfeasance, the failure to do what ought to be done is also a relatively easy call for most courts to make because acts of nonfeasance are either deliberate or inadvertent.
Neither cause is praise-worthy.
A deliberate act of nonfeasance is a clear dereliction of a lawyer’s obligation to protect his or her clients. Yet, depending on the circumstances of the attorney’s failure to take certain actions, an inadvertent act of nonfeasance might or might not be excusable.
Ineffective Assistance Based On Misfeasance
On the other hand, claims of lawyer misfeasance are generally the most difficult for a court to unravel, and it is in this context that the 3-step Lozada formula for assessing whether ineffective assistance can badly miss its mark.
The deliberate versus inadvertent distinction likewise applies to alleged acts of attorney misfeasance.
Simply because an attorney fails to handle a matter which turns out defective does not automatically compel a finding of intentional ineffective assistance.
The actions taken might be due to underlying issues of carelessness or competence, both of which, are professionally deficient.
On the other hand, as various immigration appeals decisions have shown, ineffective assistance claims are sometimes related to carefully weighed tactical calculations which failed to produce the desired result.
How Likely Is A Lozada Motion To Succeed?
Unfortunately, by insisting on rigid conformance to the three-step Lozada formula, the BIA and immigration courts often turns a deaf ear to the substance of such claims for relief. In these cases, the merits of motions to reopen have been ignored because the procedures were not strictly complied with by the aggrieved party.
Whereas the percentages of how many Lozada motions succeed and how many fail is not known, the better prepared and documented claims for reopening are far more likely to be granted.
If you’re serious about discovering what filing a Lozada Motion
To Reopen means for your immigration case . . .
Let’s schedule your Strategy And Planning Session today.