The Board of Immigration Appeals, or BIA, recently issued a precedent decision setting forth standards for reopening a case based on a claim of ineffective assistance of counsel. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020).

The facts involved a man who was ordered removed but filed a timely appeal with the BIA. While the appeal was pending, his attorney filed a motion to remand the case to the immigration court based on his client’s eligibility for adjustment of status as an immediate relative. However, the attorney failed to include information regarding his client’s rehabilitation or other positive discretionary factors, and the BIA denied the motion. The attorney then filed a timely motion to reopen, based on his own ineffective assistance of counsel.

Although the attorney had provided ineffective assistance of counsel to the respondent, the attorney did not file a complaint against himself on behalf of the respondent with the appropriate disciplinary authorities.

What are the requirements for a motion to reopen based on ineffective assistance of counsel?

The statute and regulations set forth the requirements for filing a motion to reopen based on ineffective assistance of counsel. INA § 240(c)(7); 8 C.F.R. §§ 1003.2(c), 1003.23(b). In addition, under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the following requirements must be met:

• The motion must be supported by a declaration from the respondent attesting to the relevant facts. The declaration should include a statement of the agreement between the respondent and the attorney with respect to the representation.
• Before the respondent files the motion, he or she must inform counsel of the allegations and give counsel the opportunity to respond. Any response should be included with the motion.
• The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.
• The respondent must show that the representation was ineffective and prejudiced the respondent.

What are the holdings in Matter of Melgar?

The BIA held that an attorney’s acceptance of responsibility for his errors in the motion to reopen does not discharge the disciplinary authority complaint obligation under Matter of Lozada, particularly where the attorney representing the respondent on the ineffective assistance of counsel motion to reopen makes that allegation against him or herself. In reaching this holding, the Board reaffirmed the importance of the complaint obligation in tracking “pattern[s] of misconduct that should be addressed.”

While the language in Matter of Lozada offers the opportunity to explain why a complaint was not filed, the BIA found that the attorney’s attempt to avoid the complaint requirement by simply taking responsibility for his previous errors in the motion to reopen essentially made the complaint requirement meaningless. The court was also wary of the potential for collusion between the respondent and his attorney, where the attorney could avoid dealing with a bar complaint while the respondent receives a benefit with respect to the motion to reopen.

The BIA also held that a respondent seeking reopening based on a claim of ineffective assistance of counsel must show a reasonable probability that, but for counsel’s error, he would have prevailed on his claim. The BIA found that, even assuming the complaint requirement from Matter of Lozada had been met, the respondent was not prejudiced because the additional evidence submitted with the motion to reopen was insufficient to create a reasonable probability that the Board would have granted adjustment of status in the exercise of discretion in light of the respondent’s significant criminal history.

What are the takeaways for practitioners?

Practitioners should always meet their ethical duties to their clients, as provided by the jurisdiction where they are licensed, including the duties of zealous advocacy, diligence, competence, confidentiality, candor to the tribunal and avoidance of conflict of interest.

Despite previous unpublished BIA decisions to the contrary, if a practitioner commits error(s) that prejudice a client in the course of representation in removal proceedings, the same practitioner should not represent the client in the motion to reopen based on ineffective assistance of counsel. Instead, the practitioner should inform the client of the error(s) that prejudiced the client, the option to file a motion to reopen based on ineffective assistance of counsel, and the requirement to seek new legal counsel for a motion to reopen based on ineffective assistance of counsel. Seeking new counsel for the motion to reopen based on ineffective assistance of counsel will avoid a conflict of interest for the practitioner who committed the error(s) and, as the Board discussed, will avoid the potential for collusion between the practitioner who committed the error(s) and the respondent. Practitioners should instead cooperate with the respondent’s subsequent representative in any complaint to the appropriate disciplinary authority and/or motion to reopen.

Practitioners who wish to gain competency on motions to reopen should review CLINIC’s many motion to reopen resources, reach out to the Defending Vulnerable Populations Program, or submit a request through the “Ask the Expert” service if the practitioner is a CLINIC affiliate.

CLINIC’s motions to reopen resources are available here:

• Practice Advisory: Motions to Reopen for DACA Recipients with Removal Orders
• Guide to Assisting Asylum-Seekers with In Absentia Removal Orders
• Template Motion to Rescind In Absentia Removal Order and Reopen Removal Proceedings for Formerly Separated Families.