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Failure to File Adjustment Application on Time is Ineffective Assistance of Counsel

In an unpublished decision, the Board of Immigration Appeals (BIA) decided that when a lawyer fails to file a timely application with the Immigration Court in removal proceedings lure to file the application is solely the lawyer’s fault, the Court should construe this as ineffective assistance of counsel. Further, the Ninth Circuit Court of Appeals has previously held that if a lawyer’s ineffectiveness is plain on its face, then the requirements in Matter of Lozada are not required. Matter of Lozada is a BIA case which holds that, in order to claim in effective assistance of counsel, the client must file a bar complaint with the appropriate State bar and must advise the lawyer that the complaint is being filed.

In this particular case, the Immigration Judge gave a call-up date for the filing of all applications for relief from removal. The date passed without any applications being filed and the lawyer asked that the case be reopened in order to properly file for adjustment of status. The Judge refused to reopen the case. The immigration lawyer placed the entire blame for the lack of filing on himself. The BIA reversed the Immigration Judge’s decision, holding that there was ineffective assistance of counsel and that the respondent in this case deserved to have his case heard on the merits.

Many immigrant advocates have long complained that the Matter of Lozada requirement in ineffective assistance of counsel cases is far too strict. It requires, in addition to a showing to the BIA that there was ineffective assistance and that it prejudiced the respondent, that the respondent file a State bar complaint. The requirement of the bar complaint not only makes it more difficult for the respondent but it unnecessarily harms the lawyer, who, in most cases, cooperates with the respondent in making sure the Immigration Judge is aware that the respondent is not at fault.

This new unpublished case issued on November 13, 2013, goes a long way to re-defining Matter of Lozada.