By Kevin Bank, AILA Ethics Committee Member1
Introduction
In 1988, to address the rising number of ineffective assistance of counsel motions where “essential information” was lacking to evaluate the claim, the Board of Immigration Appeals (BIA) issued the Lozada decision, which established specific procedural standards for ineffective assistance motions in immigration proceedings:
(1) that the motion be supported by an affidavit of the allegedly aggrieved respondent 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 in this regard,
(2) that counsel whose integrity or competence is being impugned be informed of the allegation leveled against them and be given an opportunity to respond, and
(3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.2
The Lozada case also outlined two substantive requirements for the motion to reopen: (1) Ineffective Assistance of Counsel to the client; and (2) Prejudice to the client because of the ineffective assistance.
The Board made clear that the prejudice had to be significant, that in the context of a deportation proceeding, the deficient performance was so fundamentally unfair that the noncitizen was prevented from reasonably presenting their case.
Under the facts before it in Lozada, the BIA held that the standard was not met.
Prior counsel filed a Notice of Appeal with the BIA but did not file a brief, which led to successor counsel filing the motion to reopen. The BIA held that failing to file the brief did not in itself amount to a deprivation of due process as prejudice had not been shown. Respondent had received a full and fair hearing and was given every opportunity to present his case before the immigration judge.
Lozada has withstood the test of time and the circuit courts have generally adopted its requirements. The process it outlines can be a lifesaver to clients who receive incompetent representation; however, the third procedural prong of filing a bar complaint, or providing an explanation as to why successor counsel has not filed a bar complaint, has been criticized for forcing immigration lawyers to practice extreme “defense lawyering” to ensure that they are prepared when a Lozada complaint is filed against them.
Even though the circuit courts follow Lozada in general, not all the circuits take the same approach. Some circuits have relaxed and/or created exceptions to the procedural requirements when the facts support an exception,3 while others have interpreted the requirements strictly.4
How to File a Lozada Motion
In filing a motion under Lozada, it is essential to research the law of the circuit in which you are filing. Even in circuits that are more willing to be flexible on the procedural requirements, relying on the court to apply an exception in a given case is a risky proposition. If you are filing a Lozada motion, the best practice is to strictly follow the procedural steps discussed above. The motion must include the client’s affidavit, as well as a letter, email, or other written evidence that you have informed the prior counsel of the allegations that will be included in the motion and of your intention to file a motion under Lozada. The motion should also include a copy of the bar complaint filed against prior counsel or an explanation as to why a complaint has not been filed.
A successful Lozada complaint must also meet the substantive requirements, i.e., show by a preponderance of the evidence that prior counsel’s performance was deficient and that it prejudiced the client. The circuits differ in how they define prejudice. For instance, the Ninth Circuit defines it as performance that may have affected the outcome of the proceedings and that, upon reopening, the noncitizen could show plausible grounds for relief. Meanwhile the Fifth Circuit has stated that proving prejudice requires prima facie showing that, had the application been correctly filed, the noncitizen would have been entitled to relief. In a recent case, the BIA took a middle ground, stating that to establish prejudice, the petitioner must establish a “reasonable probability” that, but for the attorney’s mistakes, the petitioner would have obtained the relief sought.5
Deciding whether to file a Lozada motion involves weighing several factors. First, the successor counsel must consider the best interests of the client and the possibility that, if a Lozada motion is not filed when there is evidence of deficient performance and prejudice, the client could file a claim for malpractice against successor counsel. On the other hand, filing a completely frivolous Lozada claim without sufficient factual or legal basis could violate ABA Model Rule of Professional Conduct (MR) 3.1 and could subject successor counsel to discipline by a state bar or EOIR. An additional consideration is whether you are the best person to file the Lozada complaint because, in most instances, it is advisable to file a bar complaint against prior counsel. Although the filing of the bar complaint is a “should” rather than a “must” under Lozada, there are risks in not doing so. If you feel torn about filing a bar complaint against a particular colleague, your best option may be to suggest the client obtain other counsel to advise them, as your personal interest in not filing a complaint could conflict with your client’s interest in pursuing a viable legal option to reopen their case.6
Responding to a Lozada Motion
Deciding whether and how to respond to a Lozada motion also involves weighing a multitude of factors, and each lawyer has to make their own determination as to how to proceed based on the facts and circumstances. A lawyer is not required to respond and may choose to refrain from filing any response. Because the prior counsel is no longer counsel of record, the immigration judge or the BIA likely do not have the authority to compel a response.
On the other hand, by not filing a response, the lawyer is depriving the immigration judge or the BIA of information that could help decide whether the motion should be granted or denied. If the lawyer decides to respond, it goes without saying that they must tell the truth or risk a violation of MRs 3.3, 3.4 and 8.4. In some instances, the lawyer may decide that they did make a negligent mistake and that the mistake prejudiced the client’s ability to obtain relief. In that case, the lawyer could respond with a declaration explaining the circumstances and admitting the mistake. Although this approach could expose the lawyer to malpractice liability, if the client were to file for malpractice, the lawyer’s admission and willingness to assist in getting the mistake corrected could ultimately reduce or eliminate damages. The client may also be less incentivized to file a malpractice claim when prior counsel admits the error and assists in righting the wrong.
In other instances, a lawyer may choose to respond and defend the conduct, pointing out factual or legal deficiencies in the motion. Before filing a response, the best practice would be for prior counsel to obtain written consent from the former client to reveal confidential client information; however, if that is not a practical option, the lawyer is permitted to reveal confidential information without obtaining client consent “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”7 That exception is limited—it does not give the lawyer carte blanche to unload every unfavorable fact about the client or the case in the response. The disclosure must be limited to responding, in the narrowest fashion possible, to the client’s allegations in the Lozada complaint.
Recent Developments: The BIA’s Melgar Decision
In December 2020, the BIA issued its first decision interpreting the Lozada factors in many years in Matter of Melgar.8 The decision is a cautionary reminder to lawyers who may have become too complacent in relying on the Board or the courts to waive the Lozada requirements.
In Melgar, the lawyer filed the Lozada complaint against himself for his own ineffective assistance in representing his client during appeal. The lawyer did not, however, file a bar complaint against himself. He explained that he did not file the bar complaint because he had taken responsibility for the error and the error was clear. The error, as stated by the lawyer, was his failure to ask his client for information regarding rehabilitation and other factors when seeking a remand to the immigration judge to adjust status based on an approved visa petition. The BIA rejected the motion to reopen for both procedural and substantive deficiencies. Regarding the former, the Board held that the obligation to file a bar complaint “cannot so easily be discharged,” particularly when a lawyer files a Lozada complaint against himself. According to the BIA, this is because the bar complaint requirement is designed to highlight the standards which should be expected of attorneys and is the most effective way of informing disciplinary authorities of practitioners who fail to meet those standards. It also noted that the requirement protects against collusion between the noncitizen and counsel in which ineffective assistance is tolerated because of the benefits of delay in immigration cases. Finally, the BIA found that there had not been showing of “reasonable probability” of prejudice because the new information submitted with the Lozada complaint regarding rehabilitation was not sufficient to outweigh the negative factors in the client’s record and, thus, would not have affected the decision to deny discretionary relief.
Conclusion
Lozada can be a highly effective way to both obtain relief for clients and for disciplinary authorities to be made aware of incompetent practitioners; however, careful thought should be given to both filing and responding to a Lozada complaint. Specifically, considering Melgar, lawyers filing Lozada complaints should not assume that the BIA of the circuit courts will apply exceptions to the procedural requirements or minimize the requirement of showing prejudice to clients from the prior counsel’s deficient performance.
Notes
- Kevin Bank advises and represents clients on ethics, professional responsibility, discipline defense, and bar admission matters. He is based in Seattle, Washington. ↩
- In re Lozada, 19 I&N 637 (BIA 1988). ↩
- There are many examples. For instance, the Third Circuit has excused the failure to file a bar complaint where prior counsel acknowledged mistakes and made efforts to correct them. See Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3rd Cir. 2007). The Ninth Circuit in Ontiveros-Lopez v INS, 213 F.3d 1121, 1125 (9th Cir. 2000) excused the failure to provide notice to prior counsel where the successor counsel, despite diligent efforts, did not receive information relevant to the Lozada claim until shortly before the filing deadline). For more examples, see American Immigration Council Practice Advisory “Seeking Remedies for Ineffective Assistance of Counsel in Immigration Cases,” January 2016. ↩
- See, e.g., Hernandez-Ortez v. Holder, 741 F.3d 644, 647-48 (rejecting Ninth Circuit’s flexible approach and rejecting Respondent’s argument that Lozada’s requirements need not be strictly adhered to). ↩
- In re Melgar, 28 I&N Dec. 169 (BIA 2020). ↩
- MR 1.7(a)(2) says in part “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if…there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to…a personal interest of the lawyer.” ↩
- MR 1.6(b)(5). ↩
- https://www.aila.org/infonet/bia-matter-of-melgar-2020 ↩
AILA Doc. No. 21032238. (Posted 3/22/21)