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Office of the Circuit Executive 
U.S. Court of Appeals for the Ninth Circuit 
 
Case Name:ONTIVEROS LOPEZ V INS 9771187 9870877
Case Number:	Date Filed:
97-70752	05/24/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERNARDO ONTIVEROS-LOPEZ,                             Nos. 97-70752
Petitioner,                                                97-71187
                                                          98-70877
v.
                                                     INS No.
IMMIGRATION AND NATURALIZATION
                                                     A44-345-235
SERVICE,
Respondent.                                           OPINION

On Petitions for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 6, 1999--Pasadena, California

Filed May 24, 2000

Before: Melvin Brunetti, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

_________________________________________________________________



COUNSEL

Gary Finn, Coachella, California, for the petitioner.

Frank W. Hunger, Kristen A. Giuffreda and Elizabeth A.
Walsh, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Bernardo Ontiveros-Lopez seeks review of three
decisions of the Board of Immigration Appeals ("BIA").
Ontiveros-Lopez alleges that he was denied due process of
law because of ineffective assistance of counsel at his depor-
tation hearing. Despite Ontiveros-Lopez's asserted innocence,
counsel did not dispute deportability. Instead, his attorney

                               5464


sought relief from deportation based on Ontiveros-Lopez's
wife's status as a United States citizen. In fact, counsel mis-
read the law, and relief was statutorily unavailable to
Ontiveros-Lopez on this basis.

The BIA affirmed the order of deportation entered by the
Immigration Judge ("IJ") on its merits. Ontiveros-Lopez then
retained new counsel and moved to reopen his deportation
proceedings, claiming that his original counsel had been inef-
fective. The BIA denied this motion on procedural grounds.
When Ontiveros-Lopez moved for reconsideration, the BIA
denied this motion also.

Ontiveros-Lopez has filed with this court petitions for
review of each of these three BIA decisions. We deny the
petition for review of the BIA's affirmance of the order of
deportation. We grant the petition for review of the BIA's
denial of the motion to reopen and hold that the BIA abused
its discretion when it refused to reopen Ontiveros-Lopez's
case. Accordingly, we remand to the BIA for consideration of
Ontiveros-Lopez's claim of ineffective assistance of counsel.
We dismiss the third petition as moot.

I

Ontiveros-Lopez is a Mexican citizen who became a lawful
permanent resident of the United States on December 12,
1993, by virtue of his marriage to a United States citizen.
Ontiveros-Lopez and his wife have two children who were
born in the United States. On August 23, 1995, Ontiveros-
Lopez's car was stopped at an INS checkpoint near West-
moreland, California, and he was detained, arrested, and inter-
rogated by INS agents. At the time of the stop, Ontiveros-
Lopez was accompanied by his wife and his sister, an undocu-
mented alien. His wife and sister were also detained and
placed under arrest.

                               5465


Ontiveros-Lopez was placed in deportation proceedings via
the issuance and service of an Order to Show Cause ("OSC").
The OSC charged Ontiveros-Lopez with deportability under
the Immigration and Nationality Act for aiding and abetting
his undocumented sister's attempted unlawful entry into the
United States. See 8 U.S.C. S 1227(a)(1)(E)(i).1 Ontiveros-
Lopez contends that he played no role in his sister's unlawful
entry and that he learned she was in this country only after she
had entered. Nevertheless, at the deportation hearing on July
19, 1996, Ontiveros-Lopez's counsel admitted all the allega-
tions of the OSC and conceded Ontiveros-Lopez's deporta-
bility from the United States.

Counsel then moved for relief from deportation on the basis
of Ontiveros-Lopez's marriage to a United States citizen. This
approach was based on an obvious mistake of law. Under the
clearly applicable law (subject to exceptions not available to
Ontiveros-Lopez), a person deported for alien smuggling is
statutorily ineligible for relief from deportation and perma-
nently inadmissible to the United States. See 8 U.S.C.
S 1182(a)(6)(E). Thus, as a direct result of counsel's error, the
IJ had no choice but to enter an order of deportation based on
the concession of deportability and to deny relief from depor-
tation as a matter of law. Counsel filed an appeal with the
BIA raising the same flawed legal claims that he had pursued
before the IJ. The BIA affirmed the IJ's decision on May 28,
1997.

Ontiveros-Lopez engaged new counsel on June 26, 1997.
On June 27, 1997, just within the 30-day time period for seek-
ing review of the BIA's affirmance of the deportation order,
new counsel filed a petition for review of that decision with
this court on Ontiveros-Lopez's behalf ("first petition"). The
first petition urges us to reverse the BIA's decision because
of ineffective assistance of counsel at the deportation hearing.
_________________________________________________________________
1 At the time the OSC issued, this section was codified at 8 U.S.C.
S 1251(a)(1)(E)(i).

                               5466


Also on June 27, 1997, the day after he was retained, new
counsel requested Ontiveros-Lopez's records from his prior
counsel. Prior counsel never complied with this request. In a
request received by the INS on July 1, 1997, Ontiveros-
Lopez's new counsel also sought a copy of the hearing
records from the INS. The INS never responded. Then, on
July 17, 1997, new counsel wrote directly to the immigration
court that had held Ontiveros-Lopez's deportation hearing. He
requested the opportunity to review Ontiveros-Lopez's file
and to make copies of the relevant documents, but the immi-
gration court did not provide access to the record. In fact, it
was only during the ordinary course of required filings in this
court in connection with the first petition that the INS sup-
plied a copy of the record of proceedings before the IJ.

The INS filed the administrative record with this court on
August 19, 1997. The record before us does not reveal when
new counsel received a copy, but we assume that he received
it within a few days of that date. The 90-day period in which
to move the BIA to reopen the deportation proceedings
expired on August 26, 1997, seven days after the record was
filed in this court. See 8 C.F.R. S 3.2(c)(2). A motion to
reopen is the procedural vehicle through which a petitioner
may bring, usually for the first time, an ineffective assistance
of counsel claim before the BIA. Such a motion, when based
on a claim of ineffective assistance of counsel, is generally
subject to the heightened procedural requirements announced
in Matter of Lozada, 19 I. & N. Dec. 637 (BIA), aff'd sub
nom. Lozada v. INS, 857 F.2d 10 (1st Cir. 1988). See
Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.
2000); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). Spe-
cifically, the BIA requires the movant to provide with his
moving papers: 1) an affidavit explaining the agreement with
his prior counsel regarding his legal representation; 2) evi-
dence that prior counsel has been informed of the allegations
of ineffective assistance and given the opportunity to respond;
and 3) either a showing that a complaint against prior counsel
has been filed with the proper disciplinary authorities or an

                               5467


explanation of the reasons why not. See Matter of Lozada, 19
I. & N. Dec. at 639.

On August 26, 1997, the last day to do so, Ontiveros-Lopez
filed his motion to reopen with the BIA. Ontiveros-Lopez's
new counsel submitted a declaration with the motion to
reopen explaining that he was aware of the Lozada require-
ments and that, due to the late receipt of the record, he was
still in the process of complying. Three weeks later, on Sep-
tember 18, 1997, the BIA denied the motion to reopen on the
ground that Ontiveros-Lopez had failed to comply with the
Lozada requirements. On October 20, 1997, Ontiveros-Lopez
filed a petition for review in this court of the BIA's denial of
the motion to reopen ("second petition"). 2

Also on October 20, 1997, Ontiveros-Lopez filed a motion
to reconsider before the BIA. This motion contained all of the
information required by Lozada to support a claim of ineffec-
tive assistance of counsel. The BIA denied the motion to
reconsider on July 14, 1998. Ontiveros-Lopez again filed a
petition for review on August 7, 1998, this time seeking
review of the BIA's denial of the motion to reconsider ("third
petition").

All three petitions are before us.

II

[1] The first petition seeks to present Ontiveros-Lopez's
claim of ineffective assistance of counsel as part of a direct
review of the BIA's affirmance of the IJ's deportation order.
Unlike most claims of error, a claim of ineffective assistance
of counsel, by its nature, can rarely be presented to the BIA
on direct appeal. Thus, in the vast majority of cases, the BIA
would never have the opportunity to consider a claim of inef-
_________________________________________________________________
2 Since October 18, 1997, fell on a Saturday, Ontiveros-Lopez had until
the following Monday to file his petition for review.

                               5468


fective assistance of counsel absent a motion to reopen. We
generally will not consider a claim of error that the BIA has
not first been given the opportunity to correct because to do
so deprives us of the benefit of the agency's expertise and a
fully developed record. See Roque-Carranza v. INS, 778 F.2d
1373, 1374 (9th Cir. 1985). We therefore require an alien who
argues ineffective assistance of counsel to exhaust his admin-
istrative remedies by first presenting the issue to the BIA. See
id.; see also Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995).

[2] Ontiveros-Lopez filed his first petition before he prop-
erly exhausted his ineffective assistance of counsel claim
before the BIA. The first petition appeals the BIA's affir-
mance of the deportation order based on his prior counsel's
concession of Ontiveros-Lopez's deportability and his statu-
tory ineligibility for relief. While we could review that ruling
for its soundness, Ontiveros-Lopez instead urges us to grant
relief on the basis of ineffective assistance of counsel. This
we cannot do. Ontiveros-Lopez's direct appeal of the IJ's
deportation order to the BIA did not present ineffective assis-
tance of counsel as a ground for relief, and the BIA did not
have the opportunity to develop a record and pass on the
issue. We therefore deny the first petition for its failure to sat-
isfy the administrative exhaustion requirement.

III

[3] The second petition asks us to review the BIA's denial
of Ontiveros-Lopez's motion to reopen his deportation pro-
ceedings on the basis of ineffective assistance of counsel. The
motion to reopen squarely presented the ineffective assistance
of counsel claim to the BIA, and the claim has therefore been
properly exhausted.

We have jurisdiction to review the BIA's denial of the
motion to reopen under Section 106(a) of the Immigration and
Nationality Act, 8 U.S.C. S 1105a(a).3 We review the denial
_________________________________________________________________
3 The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996),

                               5469


of a motion to reopen for an abuse of discretion. See INS v.
Doherty, 502 U.S. 314, 323 (1992). "An abuse of discretion
will be found when the denial was arbitrary, irrational or con-
trary to law." Watkins v. INS, 63 F.3d 844, 847 (9th Cir. 1995)
(internal quotation marks omitted).

[4] We hold that the BIA abused its discretion in this case.
Although the BIA acts within its discretion to impose the
heightened Lozada procedural requirements, see 8 C.F.R.
S 3.2(c); INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per
curiam), it may not impose the Lozada requirements arbitrar-
ily. See Castillo-Perez v. INS, 2000 WL 565587, at *6 (9th
Cir. May 11, 2000); Escobar-Grijalva, 206 F.3d at 1335
(describing the requirements of Lozada as "reasonable rules
for the normal ineffective assistance claim" but "not disposi-
tive" under the circumstances of the case). In this case, the
BIA may not ignore counsel's declaration, attached to the
motion to reopen, describing his diligent efforts to obtain the
materials necessary for meeting the Lozada standard. Docu-
ments were requested from Ontiveros-Lopez's original coun-
sel, but to no avail. Moreover, the administrative tribunal
itself failed to respond to counsel's request to provide copies
of the exhibits submitted to the IJ. Only in the week preceding
the deadline to file the motion to reopen did counsel obtain a
copy of the exhibits, and then only when the administrative
record was served on him pursuant to his first petition for
review filed in this court.
_________________________________________________________________
as amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996),
repeals Section 106(a), but that repeal does not affect this case. The pre-
IIRIRA INA jurisdictional provision applies -- altered only by certain
"transitional changes to judicial review" -- to deportation cases that were
pending before April 1, 1997, and in which the final order of deportation
is not filed until after October 30, 1996. See IIRIRA S 309(c), available
in 8 U.S.C.A. S 1101 historical and statutory notes; Kalaw v. INS, 133
F.3d 1147, 1150 (9th Cir. 1997). The BIA's order on the motion to reopen
was filed on September 18, 1997.

                               5470


[5] Ontiveros-Lopez and his new counsel could not compe-
tently supply the required Lozada materials without recourse
to a substantially complete record of proceedings. While
Ontiveros-Lopez may have been able to attest to his own
understanding with his prior counsel absent the record, he and
his new counsel could not be expected to identify the specifics
of counsel's deficient performance without reference to an
accurate and substantially complete record of the filings and
proceedings before the IJ. Without that information,
Ontiveros-Lopez could neither notify prior counsel of his alle-
gations and give him the opportunity to respond, nor responsi-
bly draft a complaint to the state bar.

[6] We therefore remand the motion to reopen to the BIA
so that it can address Ontiveros-Lopez's claim of ineffective
assistance of counsel on the merits. If the BIA denies the
motion on the merits, Ontiveros-Lopez will be free to petition
this court for review of that decision.

IV

Because we grant relief on Ontiveros-Lopez's second peti-
tion, we dismiss his third petition as moot.

We DENY petition 97-70752. We GRANT petition 97-
71187 and REMAND to the BIA for a determination of
Ontiveros-Lopez's ineffective assistance of counsel claim on
its merits. We DISMISS petition 98-70877 as moot.

                               5471


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