The Board of Immigration Appeals (BIA) issued a precedent setting decision on December 4, 2020 in the Matter of Jesus A. Melgar involving the reopening of cases on grounds of ineffective assistance of counsel. The BIA found that a given attorney’s acceptance of responsibility for error does not discharge the disciplinary authority complaint incumbent on the respondent under Matter of Lozada and that the respondent, should he or she be seeking a reopening on the basis of a claim of ineffective assistance of counsel must show a reasonable probability that, but for counsel’s error, he or she would have prevailed on his or her claim.
Previously before the BIA the respondent in the matter is a native and citizen of El Salvador. He was appealing an immigration judge’s order of removal as well as filing a motion to remand to apply for adjustment of status on the basis of an approved visa petition filed by his son, a United States citizen. Later, on December 2, 2019, the respondent filed a timely motion to reopen his case based on a claim of ineffective assistance of counsel. The BIA denied the motion for two reasons. The first reason given by the BIA is respondent failed to meet his obligation under Matter of Lozada wherein he would either file a complaint with the appropriate disciplinary authorities before alleging ineffective assistance of counsel or, in the case that respondent does not file such a complaint, explain why he did not. The second reason given is that respondent failed to establish a reasonable probability that, but for his attorney’s mistakes, he would have obtained a favorable result.
With respect to the second reason the BIA found that the newly submitted information regarding respondent’s criminal record did not erase its concern regarding the number of encounters he has had with law enforcement and the extended period of time which these encounters had occurred. With respect to the first reason the BIA goes into detail ruling that the reason given by the respondent, that counsel “has taken responsibility for the error and the error is clear”, was not sufficient to allay the concern that an instance of ineffective counsel may be a potential violation of ethical or legal responsibilities. In addition to this concern the BIA, relying on Matter of Rivera, finds that the bar complaint serves as a protection against schemes of collusion between counsel and an alien in which supposedly ineffective assistance is tolerated “in order to secure a benefit for the to the alien in that delay can be a desired end, in itself, in immigration proceedings.” Matter of Rivera, 21 I&N Dec. at 604. The BIA found that, while there may be valid reasons for not submitting a bar complaint, the reason given by the respondent is not in that set.
For the aforementioned reasons the BIA denied respondent’s motion to reopen based on claim of ineffective assistance of counsel.
