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It Seems That Lozada Does Not Belong In The Immigration Benefits Context

by Joseph P. Whalen

In my October 28, 2011, article I asked: "Does Lozada Belong in the Immigration Benefits Context?[1] " In a decision dated January 4, 2012, the Third Circuit Court of Appeals went a long way towards answering that question. At least in the Third Circuit, apparently the answer is leaning towards "no".

Margarito Contreras, et al v. Atty Gen USA, No. 10-4235 (3rd Cir. 01/04/2012)[2] :

"This immigration case requires us to decide, among other things, whether the Fifth Amendment's Due Process Clause guarantees an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. We hold that it does not, and thus deny the petition for review."

I say that the answer is leaning towards no but I hold off from being emphatic about it. There are certain legal entitlements under the INA that cross the bounds of the benefits and removal adjudication contexts. These grey areas entail clear legal entitlements. When an individual has a solid claim to a constitutional or statutory entitlement, no degree of ineffective assistance is insurmountable. On the other hand, when even a smidge of pure discretion underlies the grant or denial or any benefit or some form of relief then, it may be a prudential conservation of limited resources that is the determining factor in answering this question I posed.

The Third Circuit relied on its own Fadiga v. Att'y Gen., 488 F.3d 142 (3d Cir. 2007)[3] and thereby, implicitly contrasting the instant case (Contreras) against Strickland v. Washington, 466 U.S. 668, (1984) (establishing an error-and-prejudice test applicable to Sixth Amendment claims of ineffective assistance of counsel in criminal cases)[4] .

In Strickland, the U.S. Supreme Court held:

"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."

The principle from Strickland arose from an "adversarial" proceeding. Specifically a criminal case and extended that to the death penalty phase because it was "sufficiently like a trial in its adversarial format". That same adversarial format applies to Removal Proceedings.

Benefits adjudications do not (or should not) be adversarial in nature. Instead, the proper approach in the benefits context is an inquisitorial format. Even if the adjudicator is playing the role of "the government", (s)he is also bound to seek the truth and ensure fairness in process and result. It is true that the lines between the "ideally" clearly defined roles of the administrative adjudicator get blurred from time to time. They tend to get blurred in order to reach a fair and equitable outcome in the interests and furtherance of justice. So, if an adjudicator whether an IJ, the BIA, AAO, or some DHS Officer has discretion in any matter, (s)he is obligated to exercise it in such a manner that will not be challenged as arbitrary, capricious, an abuse, or contrary to law. The result must be able to stand up to scrutiny so that it will not be overturned by an actual "reasonable adjudicator" upon review.

The Strickland decision's standards did not establish mechanical rules. The Supreme Court stated that the ultimate focus of an ineffective assistance of counsel inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. A benefits determination is not quite akin to a trial as was the focus of the Strickland court.

A conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. 2254(d), but is a mixed question of law and fact. The Supreme Court made it clear that if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. The easy way out for the reviewer is often to freshly examine the merits of the case. That is the actual course taken by the AAO through its de novo reviews whether it states so or not. In certain instances AAO gets hung in a nonsensical procedural quagmire when it should simply take the easy route and reexamine the merits of a case. Granted that there are ultimate limits on certain things. Where the outcome in a case is predestined one way or the other as a matter of law, then reaching that truth is what is most important, procedural errors (whether by the adjudicator below or by counsel) be damned. I have stated before that I want to see finality but that finality must be on the merits rather than on a technicality. Lastly, when a particular case in the benefits context concerns a legally enforceable entitlement, then it is the adjudicator's duty to reach the merits.

The Seventh Circuit has spoken on the issue of finality in a matter about which I am passionate. In Ortega (excerpt below), the issue was a claim to United States Citizenship. I can think of no other right more important under the INA than citizenship. It is the ultimate prize and clearly a legally enforceable entitlement for a citizen by jus soli or jus sanguinis[5] , with naturalization in a class all its own.

Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)[6] provides:

".... Congress's solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congress's concern that individuals be able to settle, definitively, the issue of citizenship."..... "As we have discussed in some detail, 8 C.F.R. ?341.6 requires that any subsequent application for citizenship [should] be filed as a motion to reconsider or to reopen. ..." [ 341.6 has been repealed, this issue is now covered by 341.5(e) per 76 FR 53764, 53805 (8/29/11), effective Nov. 28, 2011.] The regulation is still clunky. However, the court stated it in a workable manner.



4Washington was executed in July 1984, two months after the Supreme Court's decision.[1] He had spent seven years on death row.
5Covers acquisition at birth abroad and "derivation" (now called automatically acquired citizenship).
6Found at: or

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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