In re Assaad
| Decision Date | 12 February 2003 |
| Docket Number | Interim Decision Number 3487,File A72 824 993. |
| Citation | 23 I&N Dec. 553 |
| Parties | In re Bassel Nabih ASSAAD, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 22, 2001, an Immigration Judge denied the respondent's motion to reopen, in which he alleged ineffective assistance of prior counsel and sought to pursue an appeal of a previous denial of relief. The respondent has appealed from that decision. The appeal will be dismissed.
The issue before us is whether an exception to the 30-day time limit for filing an appeal from a decision of an Immigration Judge can ever be made based on a claim of ineffective assistance of counsel. In regard to this question, the Immigration and Naturalization Service seeks to have us reexamine and overturn our decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
The Service notes that the United States Supreme Court has held, in the context of criminal proceedings, that where there is no constitutional right to the appointment of counsel at government expense, there is no constitutional basis for a claim of ineffective assistance of counsel. Coleman v. Thompson, 501 U.S. 722, 752-54 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). According to the Service, we have not addressed this Supreme Court authority, with which Matter of Lozada and its progeny are in conflict. Thus, the Service contends that we should reconsider Lozada in light of Coleman and Wainwright.
We acknowledge the arguments made by the Service but are not persuaded that we should withdraw from our decision in Matter of Lozada. Although the Supreme Court's decision in Coleman was rendered more than 10 years ago, the Service has never raised it to challenge Lozada in subsequent cases before the Board. See, e.g., Matter of A---- A----, 22 I&N Dec. 140 (BIA 1998); Matter of N---- K---- & V---- S----, 21 I&N Dec. 879 (BIA 1997); Matter of Rivera, 21 I&N Dec. 599 (BIA 1996), aff'd, 122 F.3d 1062 (4th Cir. 1997) (unpublished table decision). Furthermore, for more than a decade the circuit courts have recognized Lozada as valid precedent setting forth procedures by which respondents may present claims of ineffective assistance of counsel.
The respondent is a native and citizen of Syria who entered the United States in 1993 as a nonimmigrant visitor. The record reflects that he was subsequently granted conditional permanent resident status on the basis of his marriage to a United States citizen. Removal proceedings were instituted in 1997 after the termination of his status.
In proceedings before the Immigration Judge, the respondent sought a waiver under section 216(c)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(B) (1994 & Supp. IV 1998), to remove the conditional basis of his permanent resident status. The Immigration Judge denied the waiver, finding that limited evidence was submitted to assess the qualifying marriage and that the respondent knew little about his wife. The Immigration Judge ordered the respondent removed from the United States in a decision dated April 2, 1998. The respondent reserved appeal but his attorney submitted the appeal a week late.2 We dismissed the appeal as untimely on September 19, 2000.3
On February 12, 2001, nearly 3 years after the Immigration Judge's decision, the respondent, represented by new counsel, sought reopening, presumably so the Immigration Judge would reissue his decision in order for a timely appeal to be filed.4 With his motion, the respondent submitted evidence in compliance with the procedural requirements of Matter of Lozada for making a claim of ineffective assistance of counsel, including a grievance filed with the State Bar of Texas. The Immigration Judge denied the motion on February 22, 2001, and the respondent has appealed from that decision.
On appeal, the respondent has admitted that the motion filed with the Immigration Judge was untimely, but he argues that former counsel did not inform him of our decision dismissing his original appeal as untimely. He asserts that he did not learn of our order until a Service officer sought to arrest him. The respondent therefore contends that his motion asserting a claim of ineffective assistance of counsel should have been considered. In support of his appeal, he has submitted a letter from the State Bar of Texas to his current counsel, stating that the Investigatory Panel of the District Grievance Committee determined, based on the respondent's complaint, that there was just cause to believe that former counsel committed professional misconduct.
In Matter of Lozada, supra, at 639-40, we set forth the procedural requirements for a claim of ineffective assistance of counsel, noting that they were necessary to provide a basis for evaluating the many claims presented, to deter baseless allegations, and to notify attorneys of the standards for representing aliens in immigration proceedings. First, we held that the alien must submit an affidavit detailing the agreement that was entered into with counsel with respect to the actions to be taken and the representations counsel made or did not make in this regard. We also stated that the alien must inform counsel of the allegations of ineffective assistance and give him or her the opportunity to respond. Finally, we concluded that the alien must file a complaint with the appropriate disciplinary authorities, such as a state bar, with respect to any violation of counsel's ethical or legal responsibilities, or adequately explain why no filing was made. In addition to these requirements, an alien alleging ineffective assistance of counsel must also show that he or she was prejudiced by the actions or inactions of counsel. Id. at 640.
We revisited these procedures in Matter of Rivera, supra, at 603-05, where we set forth further policy reasons for the "complaint" requirement of Matter of Lozada. We noted that such a filing increases our confidence in the validity of the particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves our long-term interests in monitoring the representation of aliens by the immigration bar. Matter of Rivera, supra, at 605. We further determined that the bar complaint requirement acts as a protection against collusion between counsel and client to achieve delay in proceedings.
It is clear that Matter of Lozada provides a measure of protection for aliens who are prejudiced by incompetent counsel. As a removal proceeding has the potential to deprive a respondent of the right to stay in the United States, which can include separation from family and return to possible persecution, the procedures in that proceeding must be fundamentally fair. Moreover, as discussed below, the courts have consistently recognized that ineffective counsel may deprive an alien of a fair hearing. See, e.g., Saakian v. INS, 252 F.3d 21, 24-25 (1st Cir. 2001). The Lozada approach has provided an appropriate framework for analyzing ineffective assistance claims, balancing the need for finality in immigration proceedings with some protection for aliens prejudiced by ineffective assistance of counsel.
The Service argues that Matter of Lozada conflicts with the Supreme Court decisions in Coleman v. Thompson, supra, and Wainwright v. Torna, supra. In Wainwright, the Supreme Court found that since a convicted felon had no constitutional right to counsel to pursue a discretionary state appeal, he could not be deprived of the effective assistance of counsel by his attorney's failure to timely file the discretionary appeal. Wainwright v. Torna, supra, at 587-88.
Citing that decision, the Supreme Court reiterated in Coleman that where there is no constitutional right to counsel, there can be no deprivation of effective assistance of counsel. In that case, the prisoner's attorney had sought state habeas review of various claims, but had filed his state appeal late, resulting in a procedural default. The prisoner claimed that his attorney's error should excuse the procedural default and allow federal habeas review of the merits of his claim. The Court rejected this argument, holding that because there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such...
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