Introduction

On December 4, 2020, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) [PDF version]. In the decision, the Board clarified requirements for motions to reopen removal proceedings based on ineffective assistance of counsel in prior proceedings. In this case, the respondent’s attorney during removal proceedings, who remained his attorney in the motion to reopen, brought ineffective assistance of counsel claims against himself. The Board found that this did not relieve the respondent of his obligation under Board precedent to file a complaint against the attorney with the appropriate disciplinary authorities. Additionally, the Board reiterated that in order for a respondent to prevail on an ineffective assistance of counsel claim, the respondent must show that there is a reasonable probability that, but for counsel’s error, the respondent would have prevailed in the removal proceeding.

Factual and Procedural History

The respondent, a native and citizen of El Salvador, was charged with removability based on criminal convictions. He sought relief in the form of adjustment of status on the basis of an approved immigrant visa petition filed on his behalf by his U.S. citizen son. The immigration judge had ordered the respondent removed, leading to the respondent’s appealing from the decision to the BIA. On September 3, 2019, the Board dismissed the respondent’s appeal and denied his motion to apply for adjustment of status. On December 2, 2019, the respondent filed a timely motion with the Board to reopen proceedings based on his claim of ineffective assistance of counsel.

Respondent’s Ineffective Assistance of Counsel Claim

The respondent claimed that his attorney had provided ineffective assistance. Specifically, the Board described the respondent’s assertion that his attorney “did not ask him for information regarding his rehabilitation or other positive factors and therefore did not present sufficient evidence to establish that he was entitled to remand to apply for adjustment of status on the basis of an approved visa petition filed by his United States citizen son.” Notably, the respondent brought the claim against his current counsel, who had also represented him both before the immigration judge and the BIA.

Threshold Issue: Procedural Requirements for MTR Based on Ineffective Assistance

Under BIA precedent, a claim of ineffective assistance of counsel “should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.” Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) [PDF version]. In the instant decision, the Board stated that while Matter of Lozada does allow for a respondent to explain why he or she declined to file a complaint against the attorney with appropriate disciplinary authorities, it did not hold that “any such explanation, however insufficient, would satisfy this requirement.”

In the instant matter, the respondent did not file a complaint with the appropriate disciplinary authorities regarding his counsel’s earlier representation. In the motion, he stated that he did not do so “[b]ecause counsel has taken responsibility for the error and the error is clear.” Was this explanation sufficient under Matter of Lozada? For the following reasons, the Board concluded that it was not.

The Board stated that Matter of Lozada’s requirement that the respondent either file a complaint against his or her current or former counsel with the appropriate disciplinary authorities or provide a sufficient explanation for why he or she did not do so “cannot be so easily discharged” as the respondent hoped. The Board held that the requirement was more, not less, important “where the ineffective assistance allegation is rendered by the same attorney against himself.” The Board continued, asserting that to accept the respondent’s view would “render[] Matter of Lozada ineffectual.”

To explain its reasoning, the Board articulated the purpose of Matter of Lozada‘s notification obligation. In Lozada, the Board held that the obligation to file a complaint with the relevant bar association with disciplinary authority is designed to “highlight[] the standards which should be expected of attorneys who represent persons in immigration proceedings.” Matter of Lozada, 19 I&N Dec. at 639. The Board explained in the instant decision that when a bar association is notified of an attorney’s ineffective assistance or misconduct, its disciplinary authorities may examine the specific allegation and, if it finds the complaint meritorious, may examine whether the attorney has a pattern of similar problems.

In a narrower sense, the Board explained that the notification obligation “protect[s] against collusion between alien and the counsel in which ‘ineffective’ assistance is tolerated, and goes unchallenged by an alien before disciplinary authorities, because it results in a benefit to the alien in that delay can be a desired end, in itself, in immigration proceedings.” Matter of Rivera, 21 I&N Dec. 599, 604 (BIA 1996) [PDF version]. That is, the Board is concerned about cases in which an attorney may, with the consent of the respondent, deliberately deliver ineffective assistance in order that the respondent may make an ineffective assistance claim to delay the resolution of his or her proceedings to his or her advantage.

The Board made clear, however, that there may be cases wherein the alien has a valid reason for not submitting a bar complaint against his or her attorney for ineffective assistance. It used as examples “[the] death of prior attorney or his disbarment…” While the Board does not suggest that these examples are entirely exhaustive, respondents and practitioners seeking to bring ineffective assistance of counsel claims should note that the only two exceptions to the notification obligation that the Board specified involve cases where the prospect of any disciplinary action against the respondent’s attorney would be nugatory.

In the instant case, the Board described the respondent’s reason for not submitting a bar complaint against his attorney as “self-serving,” and not the type of reason contemplated in Matter of Lozada‘s in providing for an exception to the general rule. Therefore, the Board held “that respondent has not satisfied Matter of Lozada.”

Even if Respondent Satisfied Matter of Lozada, the Claim Would Have Still Failed

Although the Board had held that the respondent’s ineffective assistance of counsel claim was foreclosed by Matter of Lozada, it held alternatively that the claim would had failed on its merits even if the respondent had satisfied the threshold procedural requirements for bringing it in the first place.

The Board’s position is that in order for an ineffective assistance of counsel claim to succeed, the respondent bears “the “burden of showing that he was prejudiced by his attorney’s errors.” By “prejudice,” the Board means that the respondent must establish “a reasonable probability that, but for his attorney’s mistakes,” he would have achieved a more favorable outcome. Thus, in the instant case, the respondent had the burden of showing that but for his attorney’s mistakes, there would have been a reasonable probability that he would have obtained a remand to apply for adjustment of status.

The Board explained that the “reasonable probability” burden is appropriate because “[r]eopening [] cases is an extraordinary remedy that should not be invoked for attorney error that is non-prejudicial to the decision.” The Board noted that in many cases where a respondent fails to obtain a desired outcome, he or she may feel that this result occurred, at least in part, because his or her attorney was not good enough. The Board stated that its view, following Matter of Lozada, is that Lozada does not apply in cases “where a better attorney might have obtained a favorable result.” Instead, Matter of Lozada remedies are “for respondents who have suffered significant harm and can show a reasonable probability that they would have prevailed on their claim.”

While a respondent has a high burden to establish that there is a reasonable probability that he or she would have prevailed on his or her claim but for the attorney’s ineffective assistance, the Board made clear that the respondent does not have to establish that he or she “definitely would have prevailed…” “Reasonable probability” does not demand absolute certainty that the error was sufficient to change the outcome of the respondent’s case, but it does require that the respondent show that the harm was severe enough that there is a sufficiently strong chance that it changed the outcome.

In the instant matter, the Board took the view that the respondent did not submit sufficient evidence to overcome its concerns about his extensive criminal record that spanned a long period. Furthermore, the Board found it significant that the respondent did not submit statements from his children, “and the letters he submitted are not sufficient to outweigh his long history of arrests and convictions for child abuse, assault, and disorderly conduct.” The Board thus concluded that, even if the respondent’s attorney had presented the evidence that the respondent and counsel asserted that counsel should have, there was not a reasonable probability that submission of the evidence would have changed the Board’s decision. For that reason, “[t]he respondent accordingly has not established that he was prejudiced by any error of his attorney…”

Conclusion

Matter of Melgar makes clear that, in most cases, a respondent will need to file a complaint with the bar association having disciplinary authority over the attorney he claims was ineffective in order to prevail on an ineffective assistance of counsel claim. This requirement is more, not less, important in cases when the attorney who the respondent alleges was ineffective continues to represent him or her. Where the respondent meets the threshold requirements for seeking reopening based on ineffective assistance of counsel, the respondent must establish that but for his or her attorney’s ineffective assistance, he or she would have had a “reasonable probability” of obtaining a different result in his or her proceedings before the immigration judge or the BIA.