On January 15, 2025, our firm was able to secure a massive win, not only for our client, but also for immigrants and immigration law practitioners nationwide. One of our clients had missed her appellate deadline because her previous attorney, who was pregnant at the time, became life-threateningly ill and was forced to have an emergency delivery and missed the deadline. Although our firm tried to get the Board of Immigration Appeals to accept our client’s appeal based on exceptional circumstances, the Board was unmoving and unsympathetic, despite the tragic circumstances surrounding the missed deadline.
Under most areas of practice, a client can have a second attempt at a unfavorable outcome if they can show that the unfavorable outcome was a result of their previous counsel’s mistake. This is known as an ineffective assistance of counsel claim. In 1984, the United States Supreme Court in Strickland v. Washington laid out a two-part test to determine if ineffective assistance resulted in a violation of due process for a client. This test was 1) did the prior attorney’s assistance fall below the objective standard of reasonableness? And 2) would the result of the proceedings have been different but for the prior attorney’s ineffective assistance of counsel.
However, in 1988, the Board of Immigration Appeals in Matter of Lozada, created new, and incredibly burdensome, requirements for an ineffective assistance of counsel claim in immigration proceedings. Specifically, requiring 1) an affidavit by the respondent attesting the facts; 2) prior counsel must be informed; and 3) a bar complaint should be filed, and if not, a reason why. Although the language of Lozada suggests that the bar complaint is not required, the Board has yet, to our knowledge, found that a bar complaint was not required. Thus, while every other area of practice follows the Supreme Court’s test, immigration practitioners are forced to follow the Board’s requirements.
These requirements create a heavy burden on immigrants in this country who already struggle to understand the legal processes, now requiring them to file a complaint against their prior attorney, making it difficult for them to succeed in their claims. This requirement also results in multiple unnecessary complaints being filed against attorneys that are often ultimately dismissed by the bars of the attorney’s state. Despite this process being burdensome, higher courts have affirmed the Boards process, and it is almost unheard of that a higher court would limit the Board’s process for ineffective assistance of counsel claims.
In our client’s case, because the Board refused to accept the late filing, the only option left was to pursue an ineffective assistance of counsel claim against the prior attorney. All procedures were followed, and a complaint was filed against the attorney. Proof that the complaint was filed was provided to the Board along with all other requirements. However, the Board ultimately denied the motion, finding that the requirements were not satisfied because the actual complaint itself had not been provided. Our office argued that it has never been required to provide the contents of the complaint, however, the Board refused to budge.
So, our office filed an appeal before the 10th Circuit, a court which had, to that point, only affirmed the Board’s decisions on ineffective assistance of counsel claims. However, our office worked tirelessly for our client and put forth a strong argument in favor of our client. On January 15, 2025, the 10th Circuit found in favor of our client, finding that the Board had “abused its discretion by inexplicably departing from the established policy in Lozada and imposing an additional requirement for a motion to reopen based on ineffective assistance of counsel that does not appear within the Lozada decision or any case interpreting Lozada.”
Because of this win, our client is able to continue with her appeal and seek protection from deportation. Considering how rare a win is in the 10th Circuit, and how even rarer it is to have a circuit court limit the Board’s requirements under ineffective assistance of counsel claims, this is a huge win for our clients, for Contigo Law, and for immigration practitioners nationwide.
We want to give a major congratulations to our clients and to the team who worked tirelessly on this appeal. At Contigo Law we are dedicated to fighting hard for our clients and we are so pleased with the outcome of this case.
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