🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration!  — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner ESQUIRE
Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong!  Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

  • “In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
  • “Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS:  “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
  • “We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing.  Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better!  American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes! 

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!   

🇺🇸 Due Process Forever!

PWS

07-14-24

⚖️ “HON. SIR JEFFREY OF CLAIRVOYANCE” — The Day After His Blog On “Ineffective Assistance,” The 3rd & 10th Cirs “Blow Out” Garland EOIR’s Inept Approach!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-ineffective-assistance-saint-ford-ii#

https://www2.ca3.uscourts.gov/opinarch/211729p1.pdf

https://www2.ca3.uscourts.gov/opinarch/211729po.pdf

“The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers. Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand. … AMBRO, Circuit Judge, concurring Arckange Saint Ford will get a second shot at seeking withholding of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full. But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing. [Emphasis added.]”

“The opinion and judgment filed on May 16, 2022 [34 F.4th 201 (3d Cir. 2022)] are hereby vacated. The Clerk is directed to file the amended opinion and re-enter the judgment contemporaneously with this order.” – Saint Ford v. Atty. Gen.

[Hats off again to Robert Andrew Painter!]

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https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110752008.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca10-mtr-remand-singh-v-garland#

“Singh argues the BIA committed legal error in denying his motion to reopen because it failed to cite or apply the prejudice standard from Matter of Lozada and its progeny—i.e., that the alien “show a reasonable likelihood that the outcome would have been different,” Molina, 763 F.3d at 1263 (internal quotation marks omitted)— and instead applied an elevated standard of prejudice from Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)—i.e., that the alien “overcome” a prior adverse credibility determination. We agree. … The BIA applied an incorrect legal standard in deciding whether Singh had been prejudiced by his attorney’s alleged ineffective assistance because it required him to “overcome” the adverse credibility determination to show prejudice. The BIA therefore abused its discretion in denying Singh’s motion to reopen. See Qiu, 870 F.3d at 1202 (“[C]ommitting a legal error . . . is necessarily an abuse of discretion.” (internal quotation marks omitted)). On remand, the BIA should consider whether there is “a reasonable likelihood that the outcome would have been different but for counsel’s deficient performance.” Mena-Flores, 776 F.3d at 1169 (internal quotation marks omitted).”

[Hats off to Jessica K. Miles of El Paso!]

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Wrong legal standards, mistakes at both trial and appellate levels, sloppy work, unfair results in “life or death” cases. Why is this “acceptable quasi-judicial performance” in the Biden Administration? Why isn’t Garland being held accountable for his life-threatening, ongoing, anti-due-process “clown show” @ EOIR?🤡☠️

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

🇺🇸 Due Process Forever!

PWS

10-13-22

⚖️ HON. “SIR JEFFREY” CHASE ON LOZADA/INEFFECTIVE ASSISTANCE OF COUNSEL— Reviving My “Rivera Dissent,” While Highlighting More Than A Decade Of EOIR/DOJ Failure To Provide Effective Guidance!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2022/10/11/amending-lozada

Amending Lozada?

October 11, 2022

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.

A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4

By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7

A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9

Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.

The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:

I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12

Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.

Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:

By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15

In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16

Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18

When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.

Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.

In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.

According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22

Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.

Copyright 2022 Jeffrey S. Chase.All rights reserved.

Notes:

  1. 466 U.S. 668 (1984).
  2. Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).
  3. Id.
  4. The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.
  5. 19 I&N Dec. 637 (BIA 1988).
  6. Id. at 638.
  7. Id. at 639.
  8. American Immigration Council, Practice Advisory, “Seeking Remedies For Ineffective Assistance of Counsel in Immigration Cases,” (Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_advisory.pdf, at 11.
  9. Id.
  10. 10.21 I&N Dec. 599 (BIA 1996) (en banc).
  11. 11.Id. at 606.
  12. 12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.
  13. 13.23 I&N Dec. 553 (BIA 2003).
  14. 14.Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. Jan. 7, 2009).
  15. 15.Id. at 737-38.
  16. 16.Id. at 737. Moses E. Herzog, the fictional protagonist of Saul Bellow’s novel Herzog, authored numerous strongly-worded letters that he never sent.
  17. 17.Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009).
  18. 18.Id. at 2.
  19. 19.81 Fed. Reg. 49556, 49565 (July 28, 2016), https://www.federalregister.gov/documents/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective.
  20. 20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).
  21. 21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”
  22. 22.Private email to the author.

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Republished by permission.

As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”

This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.

Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing! 

Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum. 

“Lozada reform” is long overdue. But, so is meaningful EOIR reform! 

Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.

Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”

🇺🇸 Due Process Forever!

PWS

10-12-22

🤮INEFFECTIVE ASSISTANCE/DEFECTIVE COURTS — 3rd Cir. Exposes Massive Due Process Failure @ Garland’s EOIR! — St. Ford v. A.G.

 

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

From Judge Roth’s opinion:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.

 

Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.

But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.

. . . .

Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.

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What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken  EOIR!

Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break! 

This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!

Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system! 

You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!

🇺🇸 Due Process Forever!

PWS

05-19-22

ANOTHER BIG DUE PROCESS VICTORY: 3rd. Cir. Reaffirms That Due Process Applies Equally To Discretionary Relief, Finds BIA Screwed Up “Ineffective Assistance Claim,” Rejects OIL’s Attack  On Due Process — Calderon-Rosas v. Atty. Gen.

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-ineffective-assistance-calderon-rosas-v-atty-gen

Dan Kowalski reports from LexisNexis Immigration Community:

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Daniel M. Kowalski

27 Apr 2020

CA3 on Ineffective Assistance: Calderon-Rosas v. Atty. Gen.

Calderon-Rosas v. Atty. Gen.

“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”

[Hats off to Petra D. Fist!]

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Get the full decision at the link.

Panel:  GREENAWAY, JR., KRAUSE, and RESTREPO,

Circuit Judges

Opinion by:  Judge Krause

Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:

The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74

8

(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).

More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.

So true. Yet, so often ignored in practice by the Supremes and Circuit Courts. 

The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.” 

Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding. 

Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing! 

Nice words are one thing. Actions an entirely different matter!

Due Process Forever!

PWS

04-28-20

BREAKING: SUPREMES RULE IMMIGRANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE ATTY GAVE WRONG ADVICE ON DEPORTATION! — JAE LEE v. UNITED STATES — Chief Justice Roberts Writes For 6-2 Majority!

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf

Here’s the Court’s Headnote (not part of the decision)

Petitioner Jae Lee moved to the United States from South Korea with his parents when he was 13. In the 35 years he has spent in this country, he has never returned to South Korea, nor has he become a U. S. citizen, living instead as a lawful permanent resident. In 2008, federal officials received a tip from a confidential informant that Lee had sold the informant ecstasy and marijuana. After obtaining a warrant, the officials searched Lee’s house, where they found drugs, cash, and a loaded rifle. Lee admitted that the drugs were his, and a grand jury indicted him on one count of possessing ecstasy with in- tent to distribute. Lee retained counsel and entered into plea discussions with the Government. During the plea process, Lee repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison. Lee had in fact pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U. S. C. §1101(a)(43)(B), so he was, contrary to his attorney’s advice, subject to mandatory deportation as a result of that plea. See §1227(a)(2)(A)(iii). When Lee learned of this consequence, he filed a motion to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Lee in deciding whether to accept a plea, and Lee’s counsel acknowledged that although Lee’s defense to the charge was weak, if he had known Lee would be de- ported upon pleading guilty, he would have advised him to go to trial. A Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated. The District Court, however, denied relief, and

2

JAE LEE v. UNITED STATES Syllabus

the Sixth Circuit affirmed. Applying the two-part test for ineffective assistance claims from Strickland v. Washington, 466 U. S. 668, the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice.

Held: Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice. Pp. 5–13.

(a) When a defendant claims that his counsel’s deficient perfor- mance deprived him of a trial by causing him to accept a plea, the de- fendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S. 52, 59.

Lee contends that he can make this showing because he never would have accepted a guilty plea had he known the result would be deportation. The Government contends that Lee cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal. Pp. 5–8.

(b) The Government makes two errors in urging the adoption of a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. First, it forgets that categorical rules are ill suited to an inquiry that demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor, 529 U. S. 362, 391 (internal quotation marks omitted); Strickland, 466 U. S., at 695. More fundamentally, it overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U. S. 289, 322–323. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial. Pointing to Strickland, the Government urges that “[a] defendant has no entitlement to the luck of a lawless deci- sionmaker.” 466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it

Cite as: 582 U. S. ____ (2017) 3

Syllabus

would have affected the defendant’s decisionmaking. Pp. 8–10.
(c) Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation: Both Lee and his attorney testified that “deportation was the determinative issue” to Lee; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to South Korea.

The Government argues that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances,” Padilla v. Kentucky, 559 U. S. 356, 372, since deportation would almost certainly result from a trial. Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. Pp. 10–13.

825 F. 3d 311, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined except as to Part I. GORSUCH, J., took no part in the consideration or decision of the case.

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My favorite quote from the Chief Justice’s opinion:

“There is no reason to doubt the paramount importance Lee placed on avoiding deportation. Deportation is always “a particularly severe penalty,” Padilla, 559 U. S., at 365 (internal quotation marks omitted), and we have “recognized that ‘preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence,’” id., at 368 (quoting St. Cyr, 533 U. S., at 322; alteration and some internal quotation

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12 JAE LEE v. UNITED STATES Opinion of the Court

marks omitted); see also Padilla, 559 U.S., at 364 (“[D]eportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (footnote omitted)). At the time of his plea, Lee had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents—both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child.”

My question:

When is the Court finally going to take the next logical step, ditch the fiction that “deportation from the United States is strictly a civil matter,” and formally recognize that deportation, at least of someone like Lee who has been legally admitted to the U.S. for permanent residence, is indeed punishment, of the severest type imaginable! Indeed, exile as punishment dates back to ancient times?

Also worthy of note, the DOJ and the Solicitor General continue to be spectacularly unsuccessful in convincing a conservative, law enforcement oriented Court of the merits of their extreme “hard-line” positions in immigration-related matters. I have previously predicted that loss of “face” and credibility by the SG before the Supremes is a likely consequence of representing the Trump Administration with Jeff Sessions as your boss. As the President himself is finding out, the hard way, once lost, credibility before the courts is difficult or impossible to regain.

PWS

06-25-48