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Does Lozada belong in the immigration benefits context?

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  • 1. Does Lozada Belong in the Immigration Benefits Context? Claims of Ineffective Assistance of Counsel (IAC) abound in appeals to immigration judges’ decisions ordering removal. Such claims are hard to ignore because of the great weight given to due process rights in this country. The Board of Immigration Appeals (BIA or Board) has provided a framework for pursuing such claims through Lozada and more recently the Attorney General has directed the Board to promulgate regulations on this issue. There has been no proposed rule put forth as directed, yet. In the meantime, the courts continue to address the issue. One recent example from a Fifth Circuit non-precedent order reminds us of the basics. Syful Milon v. Eric Holder, Jr., No. 10-60959 (5th Cir. October 14, 2011)1 : “IAC can warrant reopening removal proceedings if petitioner satisfies the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). To support an IAC claim, an alien must: (1) provide an affidavit attesting the relevant facts, including the terms of the attorney-client agreement; (2) before he presents the claim to the BIA, inform counsel of the allegations and allow counsel an opportunity to respond; and (3) file or explain why a grievance has not been filed against counsel. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Lozada, 19 I&N Dec. at 639. “Where essential information is lacking, it is impossible to evaluate the substance of [an IAC] claim.” Lozada, 19 I&N Dec. at 639.” This next unpublished Second Circuit decision serves to highlight once again the need for EOIR/BIA to make headway on the rulemaking that was directed in Attorney General Holder’s first published immigration decision. Islam v. Holder, 10-2218-ag NAC, (2nd Cir. Aug. 16, 2011) stated, in part: “.... In Vartelas v. Holder, 620 F.3d 108, 113-15 (2d Cir. 2010), we noted that the BIA has not adopted a single standard for determining whether an alien has shown prejudice. More recently, the BIA issued a precedential decision stating that in the Ninth Circuit “prejudice exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney’s negligence, the outcome of the proceedings may 1 See www.ca5.uscourts.gov/opinionsunpub10/10-60959.0.wpd.pdf By Joseph P. Whalen (non-attorney) October 19, 2011 Page 1
  • 2. have been different.” Matter of D-R-, 25 I. & N. Dec. 445, --- (BIA 2011) (citing Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)). .......” At p. 4 Commonly called “Compean II”, Decided on June 3, 2009, held: “The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.” Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009).[Emphasis added.] Matter of D-R-, 25 I&N Dec. 445 (BIA 2011), included the following in dicta: “As a general rule, to prevail on an ineffective assistance of counsel claim, the respondent must satisfy the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). In addition to substantially complying with these requirements, the respondent must also show prejudice as a result of his attorney’s ineffectiveness. Id. at 640. In the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, prejudice exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney’s negligence, the outcome of the proceedings may have been different. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). “To prevail, the respondent[] must show that the conduct of former counsel was so egregious that it rendered [the] hearing unfair.” Matter of B- B-, 22 I&N Dec. 309, 311 (BIA 1998).” At p. 457 Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004), states: “The BIA should have begun its analysis by asking if competent counsel would have acted otherwise. The opinion never weighs the evidence of counsel's performance so as to reach a finding on his competence, the first required showing. ...” At ¶ 10 By Joseph P. Whalen (non-attorney) October 19, 2011 Page 2
  • 3. “The second question in an ineffective assistance of counsel claim is whether the client was prejudiced. While the BIA did reach this question, it did so under the wrong standard. Petitioners must demonstrate that counsel's performance was so inadequate that it "may have affected the outcome of the proceedings." Iturribarria, 321 F.3d at 900 (quotation marks and citation omitted). They need not show that they "would win or lose on any claims." Lin, 377 F.3d 1014, 1027 ....” At ¶ 11 It seems that the BIA is leaning in a particular direction but has not yet put forth any new rule as directed. There is an item on the current regulatory agenda: 2 DOJ/EOIR: Proposed Rule Stage—“Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel”, 1125-AA68 (see excerpt of agenda below). Abstract: The Department of Justice (Department) is proposing to amend the regulations of the Executive Office for Immigration Review (EOIR) by establishing procedures for the filing and adjudication of motions to reopen removal, deportation, and exclusion proceedings based upon a claim of ineffective assistance of counsel. This proposed rule is in response to Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), in which the Attorney General directed EOIR to develop such regulations. The Department also proposes to amend the EOIR regulations which provide that ineffective assistance of counsel may constitute extraordinary circumstances excusing the failure to file an asylum application within 1 year after the date of arrival in the United States. ***** General Counsel Department of Justice Suite 2600, 5107 Leesburg Pike, Falls Church, VA 22041 Phone:703 305-0470 Email: eoir.regs@usdoj.gov 2 See: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201104&RIN=1125-AA68 By Joseph P. Whalen (non-attorney) October 19, 2011 Page 3
  • 4. AAO is in different realm than the BIA but claims of ineffective assistance of counsel have also been made to it on appeal or through motions. One recent example of AAO’s treatment of a Lozada claim is found in the following excerpt from an appeal to the denial of an I-140 filed on behalf of a Schedule A, Registered Nurse in the non-precedent dismissal found at: Aug102009_02B6203.pdf “Pursuant to Matter of Lozada, any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim 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 allegations leveled against him and be given an opportunity to respond, and (3) that the appeal or 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. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1989.4 Each requirement will be examined below. First, pursuant to Matter of Lozada, the claim must be supported by an affidavit of the allegedly aggrieved petitioner 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 petitioner in this regard. Id. at 639. Instead of presenting an affidavit of the petitioner on appeal, the petitioner's current counsel submits an affidavit of the beneficiary, dated March 1, 2007. He also, fails to include the representation agreement between the petitioner and [REDACTED]. Therefore, the first requirement of Matter of Lozada has not been met. Second, pursuant to Matter of Lozada, the petitioner's former counsel must be informed of the allegations leveled against him and be given an opportunity to respond. Matter of Lozada, 19 I&N Dec. at 639. This requirement has been met. By Joseph P. Whalen (non-attorney) October 19, 2011 Page 4
  • 5. Third, pursuant to Matter of Lozada, the motion must reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of former counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. at 639. On appeal, counsel submits a copy of a complaint filed with the First Judicial Department Departmental Disciplinary Committee in New York, New York by the beneficiary against [REDACTED]. However, the proper complainant to satisfy the third requirement of Matter of Lozada in connection with a Form 1-140 petition is the petitioner, not the beneficiary. See 8 C.F.R. § 204.5(c). The record does not contain a complaint filed by the petitioner with the appropriate disciplinary authorities with respect to any violation of the petitioner's former counsel's ethical or legal responsibilities, and does not contain an explanation as to why the petitioner did not file such a complaint. Therefore, the third requirement of Matter of Lozada has not been met. The petition was not accompanied by the required PWD and, therefore, the petition remains denied. It is noted that, even if the petitioner had articulated a claim under Matter of Lozada of ineffective assistance of counsel, it is unclear how the relief requested could be granted. As the petitioner failed to submit the required PWD, the petition cannot be approved.” At pp. 5-6 Footnote from original: “ 4 On January 7, 2009, the United States Attorney General (AG) published a decision finding that persons in removal proceedings have no right under the U.S. Constitution to be represented by an attorney. Matter of Compean, 24 I&N Dec. 710 (A.G. 2009). Matter of Compean overruled Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), which held that the right to counsel was a matter of due process. Matter of Compean also set forth a new substantive and procedural framework for reviewing claims of ineffective assistance of counsel. On June 3, 2009, the AG vacated the decision in Matter of Compean and directed the Board of Immigration Appeals and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations. 25 I&N Dec. 1 (A.G. 2009).” At p. 5 In the benefits context, the burden of proof is squarely on the petitioner or applicant to present the required evidence. See e.g., INA §§ 291, 318, 341. In certain benefit petitions or applications, one must often be fully qualified and eligible at the time of filing and must have complied with certain specific required By Joseph P. Whalen (non-attorney) October 19, 2011 Page 5
  • 6. actions before submitting any benefit request forms to USCIS or before seeking consideration for such benefits. Certain post-filing changes in circumstances may influence the final outcome. Even if one did receive ineffective assistance of counsel, that cannot make an unqualified and ineligible person entitled to something they have no right to receive. Just because someone has a statutory right to seek and apply for a benefit under the INA does not entitled them to actually receive that benefit. See Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010) (holding in part: “To be considered “valid” in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a U.S. Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority under the Act.” In discussing prerequisite for portability, and... “...An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days.” In interpreting AC21 portability provisions.) Matter of Ho, 19 I&N Dec. 582 (BIA 1988) (holding in part: “Approval of a visa petition vests no rights in the beneficiary of the petition but is only a preliminary step in the visa or adjustment of status application process, and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status.”) In certain limited specific contexts, if one can demonstrate a statutory right to a benefit or entitlement, then and only then, can procedural errors be redressed. Only when there is a statutory right involving an entitlement to a benefit can claims of ineffective assistance of counsel prevail in the benefits context. What is the first part of a request for relief from removal but showing eligibility for the requested relief? However, to obtain such relief in the removal context, one must also be deserving of a favorable exercise of discretion. In a situation involving a benefit to which one has a statutory entitlement, an exercise of discretion is not a factor. If an adjudicator inserts such a non-existent requirement and makes such a finding either for or against then that is an ultra vires act that must be overturned. It is therefore imperative that one chooses their battles very carefully. Futile and unpersuasive arguments are a waste of limited resources. Courts and administrative bodies have continued to refine procedures for the expedient and cost effective disposal of frivolous or meritless claims, appeals, and motions. Increasingly, courts and administrative bodies have gone beyond mere summary dismissal and are making affirmative findings of material misrepresentation, issuing warnings and reprimands to practitioners and petitioners, levying sanctions, or instituting By Joseph P. Whalen (non-attorney) October 19, 2011 Page 6
  • 7. discipline against those who make and file frivolous or meritless cases. In addition, large fraud schemes3 have been uncovered and prosecutions are on the rise. The AAO has recently taken notice of inappropriate behavior by counsel and chastised the attorney in question, it is unknown but would not be a surprise if there was discipline due to this frivolous behavior. Take this passage to heart. See the non-precedent decision found at: Apr012011_01B5203.pdf which states: “On appeal, counsel requests that the AAO “re-review” the same evidence the director considered and submits the petitioner's self-serving 48-page essay-style curriculum vitae. This appellate submission mostly reiterates points the director already considered and fails to expressly address the director's concerns. Nevertheless, the submission appears to minimally allege errors in the director's decision such that we will not summarily dismiss the appeal pursuant to 8 C.F.R. 5 103.3(a)(l)(v). For the reasons discussed below, we find that the record contains voluminous documentation that is mostly frivolous and fails to support the hyperbolic statements by counsel, the petitioner and the petitioner's references. Ultimately, while the petitioner was qualified to work on a nationally significant project as of the date of filing, on that date he had yet to publish a single article and the record contains no evidence that his presentations, most of which were poster presentations, had garnered any attention in the field. At the outset, we note a disturbing filing history on behalf of the petitioner. On the same date as the current petition, the petitioner also filed a second Form 1-140 petition, SRC-08-260-51398, seeking classification as an alien of extraordinary ability pursuant to section 203(b)(l)(A) of the Act. The director also denied that petition. Counsel represented the petitioner for this petition.” At p. 2 ***** “While there is no prohibition regarding the number of extraordinary ability and national interest waiver petitions an alien may choose to file, neither the alien nor his attorney of record is permitted to deliberately conceal the existence of prior filings in response to the specific questions at Part 4 of an 1-140 petition, or to decline to provide U.S. Citizenship and Immigration Services (USCIS) with specific requested information regarding all prior 3 Just a few recent samples: http://www.ice.gov/news/releases/1110/111014losangeles.htm http://www.ice.gov/news/releases/1109/110915losangeles.htm http://www.ice.gov/news/releases/1107/110726sacramento.htm By Joseph P. Whalen (non-attorney) October 19, 2011 Page 7
  • 8. filings. The Form 1-140 petition "shall be executed and filed in accordance with the instructions on the form." 8 C.F.R. § 103.2(a)(l). As counsel has represented the petitioner in all of his Form 1-140 filings, it is unclear why counsel signed the 2010 petitions to indicate that the information on the form was "based on all information of which I have knowledge." The existence of prior petitions and the information contained within those petitions may be material to a new adjudication. See., e.g, 8 C.F.R. § 103.2 (b)(15) (withdrawal or denial of a petition due to abandonment shall not itself affect a new proceeding: however, the facts and circumstances surrounding the prior petition shall otherwise be material to the new petition). We further note, as will be discussed below, that counsel initially asserted that the petitioner "has been published in prestigious “journals” when, in fact, he had not published a single article in any journal as of that date. The AAO notes that willfully misleading, misinforming or deceiving any person concerning any material and relevant matter relating to a case may be a basis for disciplinary sanctions under 8 C.F.R. § 1003.102(c). In addition, such actions may constitute frivolous behavior. See 8 C.F.R. § 1003.102(j).” At p. 3 By Joseph P. Whalen (non-attorney) October 19, 2011 Page 8

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