Correcting Course on Matter of Lozada Through the Federal Courts and Executive Action

Correcting Course on Matter of Lozada Through the Federal Courts and Executive Action

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Sui Chung, Sarah Owings, Susan G. Roy, and Rekha Sharma-Crawford ^*

Abstract: Under U.S. law, legal claims are labeled as being civil or criminal in nature. Depending on this distinction, individuals wanting to raise the defense that their prior counsel was deficient are required to satisfy certain elements. Immigration laws, which can include a mix-master of concepts, sometimes merge criminal concepts into civil administrative proceedings. One clear example of this notion is in the context of claims for ineffective assistance of counsel. The Board of Immigration Appeals, in Matter of Lozada, has set out a three-prong procedural requirement that includes the mandatory filing of a bar complaint against attorneys representing noncitizens. This requirement applies in both the removal and benefits contexts as a prerequisite to a claim of ineffective assistance of counsel. After more than three decades, the imposition of this oppressive requirement has proven to undermine due process and chill access to counsel. Due process now mandates that the compulsory bar complaint filing requirement, which creates greater harm for the practice, should be eliminated. While traditional grounds for filing a bar complaint in the face of actual unethical conduct remains solidly grounded in normal process, the requirement that it must always be filed to raise a claim of ineffective assistance of counsel must be abolished. This paper reviews the implementation of Lozada throughout the decades, discusses potential avenues available for course correction, including executive action by the attorney general, directive memos by the Executive Office for Immigration Review, and suggests new arguments that can then pave the way for the federal courts to reexamine the application of the Strickland standard in immigration matters.

Introduction

In May 1984, the Supreme Court in the case of Strickland v. Washington ¹ announced the standard for determining when the right to counsel extends to the overturning of a criminal conviction due to ineffective assistance of counsel. ² On the heels of this decision, in June of the same year, the Board of Immigration Appeals (Board or BIA) adopted the Strickland standard for civil immigration cases. ³ A mere four years later, however, rather than continuing with the Strickland standard, the Board issued Matter of Lozada, creating its own deviant standard that requires (1) filing an affidavit (2) informing prior

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counsel of the allegations; and (3) explaining "whether a complaint has been filed with appropriate disciplinary authorities . . . and if not, why not." ⁴

Immigration law and process has long been recognized as a civil, not criminal, matter. ⁵ Despite this classification, the concept of ineffective assistance of counsel, a claim reserved for criminal proceedings, ⁶ has been shoehorned into the immigration laws. Typically, in civil cases, deficient attorney representation claims are referred to as legal malpractice. ⁷ No matter the nomenclature, the overall essence of both claims ultimately seeks to determine if an attorney's conduct was inadequate to a degree that resulted in causing harm to the client. Put another way, the criminal courts utilize the Strickland standard, while civil courts use a negligence standard to determine if the attorney representation was inadequate and, if so, if there was prejudice. Neither standard requires the filing of a bar complaint in order to advance the issue.

Perhaps because immigration laws speak in terms of ineffective assistance of counsel, ⁸ rather than legal malpractice, the Board, pre-Lozada, also utilized the Strickland standard. The approach was reasonable for many reasons. Much like criminal proceedings, the government commences, and prosecutes, removal proceedings. ⁹ Similarly, the terminology in removal proceedings includes concepts like arrest, detention, and bond. ¹⁰ With Lozada, the Board devalued these similarities, rejected the civil standard, and charted its own punitive course. While both criminal and civil cases assess the nature and quality of the attorney-client relationship, and the resulting harm or prejudice, neither requires, for any reason, that a bar complaint be filed against a deficient attorney. For immigration practitioners, this requirement sets them apart from attorneys in every other area of legal practice.

Despite the passage of more than three decades, the framework outlined by the Board in Lozada has remained etched in stone, and in fact has become even more onerous though subsequent interpretations of the Lozada requirements. Through its subsequent decisions, which allow no flexibility in the bar complaint requirement, the Board has all but eliminated the "if not, why not" exception to the third prong of Lozada, thereby proving the punitive intent behind its creation. ¹¹

While it can be said that the Lozada framework was originally designed to provide guidance to agencies faced with claims of ineffective assistance of counsel, and to provide some measure of protection to nonimmigrants from deficient representation, ¹² it was also designed to "police the immigration bar." ¹³ Time has now shown that parts of the framework are unworkable, and are harmful not only to attorneys, but to their noncitizen clients as well. And, as the Board has made clear in its subsequent decisions, the real purpose behind the Lozada requirements is to prevent alleged "collusion" between noncitizens and their attorneys, rather than ensuring that noncitizens' due process rights are protected. ¹⁴

The regulations dictate that published Board decisions are binding on "the Board, the immigration courts, and DHS [Department of Homeland

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Security]." ¹⁵ In this way the harmful effects of the Board's mandatory bar complaint requirement under Lozada affect not only those who practice within the immigration courts but also spill over to United States Citizenship and Immigration Services (USCIS) processes as well. Thus, ineffective assistance of counsel claims that are brought to address resulting harms before USCIS require the same Lozada compliance. ¹⁶

Adding to the confusion, the federal courts are disparate in their treatment of the procedural requirements under Lozada. Applying the Strickland standard will allow immigration practice to align with other areas of law. Claims of deficient representation exist in every area of law. In most areas, judges and adjudicators are authorized to review the record to determine if such claims are meritorious or meritless; no bar complaint requirement exists. Immigration practice must align with other areas of law if this area of practice is to thrive, because many attorneys turn away cases or abandon the practice altogether, simply choosing not to incur the added stress of defending against a frivolous bar complaint. The current framework, with its mandatory bar complaint filing procedure, creates barriers to access to counsel, increases the burden on immigrants, and provides little incentive for new attorneys to enter this field even though the need for representation remains critical and is chronically unmet.

The History, Background, and Foundation of the Matter of Lozada Decision

The legal system is fraught with peril, both for the individuals who are held subject to accountability under the law, and for the attorneys who are trying to help them navigate the process. As long as there have been legal proceedings, lawyers have been making mistakes. The Constitution is supposed to help protect the public from deprivation of their rights without due process of law, ¹⁷ and it is from those constitutional rights that the courts have delineated the remedies for people who experienced ineffective assistance of counsel, including when a do-over of the removal proceedings becomes necessary.

In 1984, the U.S. Supreme Court set the standard for determining when a criminal conviction should be overturned due to ineffective assistance of counsel. In Strickland v. Washington, the Court held that a finding of ineffective assistance that violates a criminal defendant's right to counsel under the Sixth Amendment requires both (1) that the defense attorney was objectively deficient and (2) that there was a reasonable probability that a competent attorney would have led to a different outcome. ¹⁸ Under this reasonable-probability standard, a criminal defendant does not have to show that it is more likely than not that the outcome would have been different, but instead must demonstrate that the attorney's errors undermine confidence in the outcome.

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There is no requirement for a finding of attorney malpractice to demonstrate the reasonable probability; rather, a criminal attorney can freely admit when they have made a mistake that undermined confidence in the proceedings. Because the consequences for admitting error are minimal, and the upside is the preservation of due process, everyone wins when a reviewing court can take a second look at a case where attorney error is present. It is common in criminal proceedings for defendants to seek review of their convictions under this standard, and defense attorneys are able to fall on their own swords to admit mistakes in order to avoid an unjust outcome. Everyone sleeps better at night, and we all win.

Not so in the immigration law context. Because removal proceedings are civil rather than criminal in nature, and despite the fact that mistakes by counsel can ultimately lead to removal from the United States and its attendant consequences (potential family separation, diminished outcomes for relatives who are affected by the removal of a caregiver, and even exposure to deadly danger, etc.), the courts have held that the right to counsel in removal proceedings springs not from the Sixth Amendment right to counsel, but rather from the Fifth Amendment guarantee of due...