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Reporting Our Colleagues For Discipline To Save Our Clients From Deportation: An "Ineffective" System

by Curtis Pierce and Matthew Hall

In the practice of immigration law, attorneys try to help their clients stay in America. In so doing, we are sometimes like good soldiers who do not question their orders, even when these orders are highly distasteful. A case in point concerns the procedures we are instructed to follow when representing a client who has been a victim of "ineffective assistance of counsel." In preparing a motion to reopen for an alien who has been the victim of such representation, we are instructed, among other things, to report the "ineffective" lawyer to the "appropriate disciplinary authorities", or explain our failure to do so.1

Since this requirement was enacted, many attorneys have struggled with it. How can we properly represent our clients without antagonizing and possibly damaging the livelihood of a colleague that we may see in court next week or next month at a continuing education seminar? This article shall argue that our energies have been misdirected. Instead of struggling with how to comply with this "requirement," we should be fighting for its eradication.

How Did Such A Requirement Event Get Started?

The first published opinion to set forth the "complaint" requirement was Matter of Lozada. In Lozada, an alien filed a notice of appeal after an Immigration Judge found him deportable. The notice of appeal indicated that the alien would file a separate written brief in support of his appeal. However, his attorney failed to file the brief, and after more than one year had elapsed, the Board summarily dismissed the appeal. The alien filed a Motion to Reopen alleging that his attorney provided ineffective assistance. The Board denied the motion, holding that the alien failed to establish "egregious circumstances" sufficient to prevent the alien from being "bound by the conduct of [his] attorney[]." The Board further held that in order to establish sufficient "egregious circumstances," aliens must, among other requirements, file a complaint with the "appropriate disciplinary authorities," or explain why a complaint has not been filed. The Lozada requirements were subsequently codified at 8 C.F.R. 208.4 (a)(5)(iii) for cases dealing with ineffective assistance of counsel in the asylum context.

Lozada recognized that an alien's right to counsel is grounded in the 5th amendment guarantee of due process. Magallanes-Damian v. INS, 783 F. 2d 931 (9th Cir. 1986); Paul v. INS, 521 F. 2d 194 (5th Cir. 1975) "Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Lozada citing Ramirez-Durazo v. INS, 794 F. 2d 491 (9th Cir. 1986); Lopez v. INS, 775 F. 2d 1015 (9th Cir. 1985). The alien must demonstrate that the assistance rendered by counsel was not merely ineffective, but rather so ineffective as to have impacted upon the fundamental fairness of the hearing in violation of the 5th amendment's guarantee of due process.

To deal with the situation in which there has been ineffective assistance of counsel, the Board established a procedure that must be followed when an alien or an alien and his representative file a Motion to Reopen. First, Lozada requires that the motion be supported by an affidavit attesting to the relevant facts. This affidavit should include a statement setting forth the agreement that was entered into with the former counsel regarding his representation. Second, before allegations of ineffective assistance of counsel are presented to the Board, the former counsel should be informed of the allegations and allowed the opportunity to respond. Any subsequent response from counsel, or report of counsel's failure to or refusal to respond, should be submitted with the motion. And finally, "If it is asserted that prior counsel's handling of the case involved the violation of ethical or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not." Lozada at 639-40.

The Lozada requirements were revisited in two BIA cases, Matter of Rivera, 21 I&N Dec. (BIA 1988), and more recently, Matter of Assaad, of 23 I&N Dec. 553 (BIA 2003). In the 2003 case Matter of Assaad, the former Immigration & Naturalization Service asked the board to reexamine the decision in Lozada. Their argument was that since there is no constitutional right to counsel in an immigration proceeding, there should be no basis for claiming ineffective assistance of counsel. The Board upheld Lozada, citing the underlying rationale for the requirements.

In Lozada and subsequent cases, the Board has explicitly set forth that rationale. See Lozada. See also Matter of Rivera, 21 I & N Dec. 637 (BIA 1998). The Board has written that the procedural requirements are aimed at providing a basis to evaluate ineffective assistance claims, deterring baseless allegations, and notifying attorneys of the standards for representing aliens in immigration proceedings. The Board further noted in Matter of Rivera that the "complaint" requirement increases the Board's confidence in the validity of a particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves the Board's long-term interests in monitoring the representation of aliens by the immigration bar. The Board has reasoned that the validity of a particular claim is enhanced by the "complaint" requirement because it decreases the likelihood of collusion between the original "ineffective" attorney and the alien. See In Re Rivera, 21 I & N Dec. 599, 604 (BIA 1996).

Circuit Court Treatment Of Lozada

Since Lozada, multiple circuit court cases have addressed the Lozada requirements. Every circuit that has addressed the issue has generally endorsed the procedural requirements set forth in Lozada. Matter of Azad, 23 I & N Dec. 553 (BIA 2003) citing Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001); Lara v. Trominski, 216 F.3d 487, 489 (5th Cir. 2000); Lata v. I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000). However, Lozada has been limited by the Ninth Circuit, which does not require strict compliance with the procedures where ineffective assistance is clear from the administrative record. See Castillo-Perez v. I.N.S., 212 F.3d 518, 526 (9th Cir. 2000). Lozada has also received criticism from the Third Circuit, which expressed concern that Lozada will be interpreted to "effectively require all petitioners claiming ineffective assistance to file a bar complaint." Xu Yong Lu v. Ashcroft, 259 F.3d 127 (3rd Cir. 2001).

Although the language of Lozada allows an alien to explain why a complaint was not filed in lieu of filing a complaint, case law suggests that such a tactic is risky at best, and may ultimately prove fatal. Some of the infrequent examples of successful motions without bar complaints include cases where the alien believed that the attorney had already been suspended for his actions, see Esposito v. I.N.S., 987 F.2d 108, and where the alien was an adolescent who did not speak English, and thus could not be expected to file a bar complaint, see Figueroa v. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989).

By contrast, an alien's explanation that a bar complaint was not warranted against the "ineffective" attorney has been rejected as a reason for not filing a complaint. See Stroe v. I.N.S., 256 F.3d 498, 502-03 (7th Cir. 2001). However, it should be noted that the Stroe Court did not completely foreclose the possibility that a failure to include a bar complaint could be excused by a satisfactory explanation regarding why the offending attorney's conduct did not warrant a formal bar complaint. Instead, the Stroe Court reached its holding in part because the alien's explanation "sound[ed] fishy." The alien in Stroe alleged that his previous counsel was ineffective due to his failure to file an appellate brief on time with the Board of Immigration Appeals, which resulted in a dismissal of the appeal. He attempted to justify not filing a complaint by explaining that the attorney's conduct did not warrant a complaint because the attorney "did prepare and file a brief in [their] case, albeit several months past the deadline." In rejecting this explanation as insufficient under Lozada, the Court noted that Lozada requires "a good explanation, not any old explanation" to excuse a failure to file a bar complaint.

The Second Circuit also recognized that a "reasonable explanation can excuse the failure to file a complaint," but like the Seventh Circuit, found that the alien's explanation was not reasonable enough. Lara v. Trominski, 216 F.3d 487, 498 (7th Cir. 2000). The alien in Lara argued that a complaint was not warranted because her attorney's error, namely failing to inform the alien of the BIA's decision denying her appeal until after the statutory for seeking review at the Federal Appellate level had expired, was "inadvertent." Id. Curiously, the Second Circuit turned to civil malpractice standards, holding that where an attorney's actions would form the basis for a legal malpractice action, those actions necessarily involve a "violation of ethical or legal responsibilities" requiring a complaint to be filed under Lozada. Id. The Court found that the attorney's actions could form the basis of a legal malpractice action, and thus refused to excuse the alien from the complaint requirement. Id.

Does A Similar Requirement Exist In Other Areas Of Law? Are Criminal Defense Attorneys Ever Required To Report Their "Ineffective" Colleagues To The "Appropriate Disciplinary Authorities"?

In criminal law, the requirements for establishing Ineffective Assistance of Counsel are set forth in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief due to ineffective assistance of counsel, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different. Notably absent is any requirement that a bar complaint be filed, regardless of the severity of the ineffective advocate's conduct. Rather, a defendant must show only that the attorney's performance fell below an objective standard of reasonableness, and that the attorney's conduct caused prejudice.

Given the aims of the "complaint" requirement, as set forth by the Board in both Matter of Lozada and Matter of Rivera, the incongruity between the requirements for criminal attorneys and immigration attorneys is difficult to reconcile. A criminal attorney can mishandle a case that results in his client being sent to death row without being subject to a bar complaint, while an immigration attorney who fails to file a timely appeal in a weak asylum case is not treated so lightly. Yet the risk of collusion between the ineffective attorney and his or her client seem equal in both the criminal and immigration settings. If anything, the cooperation of the ineffective attorney is more critical to the client's case in the criminal setting, where an affidavit indicating that the attorney made a mistake is imperative because a criminal attorney's actions cannot serve as the basis for an ineffective assistance claim where they can be categorized as a strategic decision. Strickland, supra.

Lozada And Its Progeny Offer A Solid Rationale For The Procedural Requirements, Including The "Complaint" Requirement. IS There Anything Wrong With Reasoning?

As noted above, the procedural requirements are aimed at providing a basis to evaluate ineffective assistance claims, deter baseless allegations, and notify attorneys of the standards for representing aliens in immigration proceedings. In addition, the "complaint" requirement increases the Board's confidence in the validity of a particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves the Board's long-term interests in monitoring the representation of aliens by the immigration bar. The validity of a particular claim is enhanced by the "complaint" requirement because it decreases the likelihood of collusion between the original "ineffective" attorney and the alien. The requirement is also intended to deter meritless motions. See In Re Rivera, 21 I & N Dec. 599, 604 (BIA 1996).

On the surface, this is a strong rationale. But does it hold up when put to the test? Do the requirements of Lozada really deter collusion? Suppose an immigration attorney makes a mistake by failing to file a timely appeal. He realizes that one way to overcome the problem is for his client to file a motion to reopen based on ineffective assistance of counsel pursuant to Lozada. It can be argued that the "complaint" requirement of Lozada will actually encourage him to find a friendly colleague to take over the matter instead of letting the case fall into the hands of an attorney with no incentive to downplay the errors committed. Through "collusion," which is something that Lozada explicitly sought to deter, the bar complaint, if filed, could be couched in friendly terms or indeed avoided altogether. As noted above, one way to overcome the complaint requirement is to provide a satisfactory explanation of why one was not made. Therefore, when put to the test, the collusion argument fails.

The progeny of Lozada also assert that the "complaint" requirement "highlights the standards which should be expected of attorneys who represent aliens in immigration proceedings." Matter of Rivera, supra. But the decisions neglect to explain how. By letting attorneys know that if they make a mistake, they could be subject to a bar complaint? It is difficult to see how the procedural requirements in Lozada enhance Immigration Attorneys' understanding of their obligations. To begin with, there is already a system in play to deal with ineffective assistance of counsel. Attorneys who commit malpractice are subject to civil lawsuits for professional negligence or malpractice. They also may lose clients, lose employment, etc. There are already many incentives for attorneys to avoid committing malpractice. Further, if the circumstances of the "ineffective assistance" are so egregious as to warrant a bar complaint, the aggrieved party is always at liberty to file one.

Finally, the complaint requirement does not substantially reduce the likelihood that an evidentiary hearing will be needed to ascertain the merits of the claim. In criminal law, there is a mechanism in place for conducting full evidentiary hearings, pursuant to 28 U.S.C. 2254, in which both the client and the former attorney put forth evidence pertaining to the actions of former counsel that the client alleges constituted ineffective assistance. A mere bar complaint, however, lacks the adversarial nature of these full evidentiary hearings. Anyone can lodge a bar complaint without any independent verification of the facts contained therein. Further, there is no suggestion in Lozada or its progeny that the Board is concerned with the resolution of the bar complaint (i.e. whether the state bar finds the allegations credible). Therefore, the required bar complaint adds no independent verification of allegations, and in no way alleviates the potential need for an evidentiary hearing.

It should be noted that the Board of Immigration Appeals is authorized to "impose disciplinary sanctions against any practitioner if it finds it to be in the public interest to do so." 8 C.F.R. 292.3(a)(1). EOIR may initiate a preliminary inquiry upon receipt of a complaint or on its own initiative. 8 C.F.R. 3.104(b). The regulations set out a procedure for investigating, charging, and adjudicating disciplinary charges.2 In any case where an individual establishes that his or her counsel was ineffective, EOIR may initiate disciplinary proceedings. Given EOIR's expanded authority to regulate the practice of immigration law and its adoption of a mechanism to investigate and discipline lawyers, it no longer is necessary to rely on state bar procedures to police the immigration bar.

When Is The State Bar Concerned About "Ineffective" Assistance Of Counsel In Immigration Matters?

According to an official for the California State Bar, Rule of Professional Conduct 3-110A is controlling when determining whether negligence leads to disciplinary action. According to this rule, "a member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." The official added "if the facts indicate mere negligence by an attorney but not an intentional reckless repeated failure to perform legal services with competence, then we would not have grounds for investigation."

The codes of Professional Responsibility in most states suggest that this approach is typical. Mere negligence by an attorney, as opposed to willful misconduct, does not subject him or her to discipline. Therefore, the "complaint" requirement has not only encouraged the filing of state bar complaints that would otherwise have not been filed. But it has also caused complaints to be submitted that are routinely dismissed. The conclusion is inescapable that the drafters of the "complaint" requirement set forth in Lozada and 8 C.FR. 208.4(a)(5)(iii) have overstepped their authority and gone into an area well beyond their domain.

Are There Better Ways For Dealing With Ineffective Assistance Of Counsel?

Below are three scenarios in which ineffective assistance of counsel comes into play in immigration law. They are followed first by a look at the applicable Lozada requirements, and then by a proposed alternative to those requirements.

SCENARIO #1: CLERICAL ERROR. Attorney is negligent and he does not dispute this.

Suppose a case is set in Immigration Court for next January 15th at 1:00 P.M. The Immigration Court sends the attorney of record a new hearing notice indicating that the case has been reset and moved up to January 15th at 8:30 A.M. The attorney (and/or his staff) fails to properly convey this information to the respondent. As a result, the alien is "deported in absentia."

Under current rules, the only way for the damage to be undone is by the alien filing a Motion To Reopen based on Ineffective Assistance of Counsel pursuant to Lozada, including evidence that a complaint was filed to the state bar about the "ineffective" attorney, or an explanation of why a complaint was not filed.

Lozada alternative for Scenario #1: Motion To Reopen Based on Mistake

In civil law, a procedure exists which allows judgments taken as a result of a party's "mistake" to be corrected. According to California Code of Civil Procedure 473(b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.

For situations involving administrative errors, a similar procedure should be implemented in immigration law. An attorney should be allowed to present a motion to reopen and provide a detailed explanation of the mistake that led to a deportation order. If the explanation appears concocted, the adjudicator could deny it. The fact that the only system in play to correct a clerical error or honest mistake in immigration law requires a complaint to the disciplinary authorities (that will most likely be disregarded) provides compelling evidence of the urgent need to modify the approach set forth in Lozada.

SCENARIO #2: LEGAL ERROR: Attorney #1 is negligent and it is clear from the administrative record.

Suppose an inexperienced immigration attorney (or an attorney who does not specialize in immigration law) undertakes a complicated removal case with sophisticated criminal/immigration issues. The respondent is ordered removed. Some time afterward, an experienced practitioner reviews the file and sees several motions that should have been made and various forms of possible relief that were overlooked. It appears from the record that the prior attorney was not aware of these possible remedies.

What should be required in the motion to reopen? According to Lozada, we first need an affidavit setting forth the arrangement between the client and the attorney. Next, the attorney whose integrity has been impugned must be informed of the allegations and given an opportunity to respond. Any response should be included in the motion. Lastly, the bar complaint or an explanation of why not?

Lozada alternative for Scenario #2: Motion To Reopen Based on Ineffective Assistance of Counsel As Demonstrated in the Record.

If the ineffective assistance is clear from the record, this should be sufficient evidence to warrant reopening. As noted above, the 9th Circuit has already held that the Lozada requirements do not need to be strictly enforced when the ineffective conduct is clear in the record. This precedent should be the basis of a new approach.

If the handling attorney was simply confused about the law and there was no willful wrongdoing, what purpose is served by imposing a bar complaint that the disciplinary authorities will likely ignore? Will such a requirement really deter this situation from repeating itself with another attorney? Would not the threat of a civil action for malpractice be enough to deter such conduct from being repeated with the practitioner in the example above?

SCENARIO #3: Questionable Motion To Reopen. Prior attorney vehemently disputes every allegation against him.

The BIA affirms the IJ's decision deporting or removing an alien. Years later, the alien receives a "bag and baggage letter" asking him to report for deportation. A motion to reopen is brought alleging that the prior attorney failed to inform his client that he could file a motion to reconsider with the Board of Immigration Appeals within 30 days or file a petition for judicial review in circuit court.

The true facts are that the respondent was fully apprised of all his appeal options by his prior attorney. Nevertheless, the current attorney has informed the respondent that if he wishes to remain in America with his family, he only has one option: he must blame his prior lawyer and file a motion to reopen based on ineffective assistance of counsel.

Under Lozada, a declaration is required from the alien setting forth the contractual agreement. It is also necessary to inform the prior attorney of the allegations against him and give him or her an opportunity to respond. It should be noted that pursuant to Lozada, it is the attorney bringing the motion who is responsible for informing the prior attorney of these allegations. It is also the new attorney who is responsible for providing the prior attorney's his (understandably indignant) response to the IJ or BIA.

This situation illustrates another deficiency in Lozada. In this scenario, the attorney bringing the motion is clearly the last person who should be responsible for including the prior attorney's response with the motion. Like the "complaint" requirement, the requirement of informing the "ineffective" attorney of the allegations against him and including his response in the motion, is a requirement likely to be defied.

Lozada alternative for Scenario #3: Motion To Reopen Based on Ineffective Assistance of Counsel Involving Facts In Dispute (Attorney Response should be obtained by someone other than the attorney bringing the motion.)

In this scenario, the attorney filing the motion has a strong incentive for not informing the prior attorney of the allegations against him. Therefore, a party other than the attorney bringing the motion should be responsible for seeing to it that the attorney whose integrity has been impugned is really informed of the allegations against him and that the response is actually presented to the adjudicator.

Conclusion

There is a reason one law student chooses to become a prosecutor and another a defense attorney. Many factors go into this choice. What has been labeled "deportation defense" often involves helping families stay together in America. Indeed, the practice of "deportation defense" could be characterized as helping people in trouble. This is distinguishable from getting people into trouble. Some of the practitioners best suited for "deportation defense" are the most ill suited for reporting their colleagues to the state bar-an action more associated with a prosecutorial temperament. Yet Lozada has the effect of forcing defenders to be prosecutors.

As seen from the foregoing, the requirement of reporting one's colleague to disciplinary authorities is not only repugnant, but also "ineffective." It does not deter collusion; it encourages it. It does not deter frivolous motions to reopen, rather it encourages frivolous bar complaints which are routinely disregarded when they deal with mere negligence as opposed to willful misconduct. The complaint requirement provides no assistance whatsoever determining the crucial issue of whether there has been a violation of due process (caused by ineffective assistance of counsel) as to warrant reopening the underlying case.

The proposals offered above are by no means intended as final solutions to the problem of dealing with ineffective assistance of counsel in immigration matters. Rather, they are intended as a call for a new approach which recognizes the current problems and addresses them in an effective and reasonable manner.

The following article first appeared in the March/April 2008 edition of AILA Monthly.


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