Patel v. Gonzales

• Citation: 496 F.3d 829
• Decision Date: 08 August 2007
• Docket Number: No. 06-3077.,06-3077.
• Parties: Shehzad Qamaruddin PATEL, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

496 F.3d 829

Shehzad Qamaruddin PATEL, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-3077.

United States Court of Appeals, Seventh Circuit.

Argued July 10, 2007.

Decided August 8, 2007.

Raymond J. Sanders (argued), Immigrant Law Center, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Anh-Thu P. Mai (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

When Shehzad Patel failed to appear at a hearing scheduled in his removal proceedings, the immigration judge ("IJ") ordered him removed in absentia. Patel faults his original attorney, who, he asserts, assured him that his absence would be excused. Patel retained new counsel to file a motion to reopen on his behalf; the motion was denied. On the eve of his removal, he retained yet another attorney and filed a second motion to reopen, asserting for the first time that his previous attorneys were ineffective. The Board of Immigration Appeals ("BIA") found that Patel had not complied with its procedural prerequisites for claiming ineffective assistance of counsel, see In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), and denied the motion. Because the BIA did not abuse its discretion in denying the second motion to reopen, we deny the petition for review.

I. Background

Patel is a citizen of Pakistan who overstayed his visa in 1996. The Department of Homeland Security initiated removal proceedings against him in 2003, and over the next twelve months, Patel attended a series of hearings with his attorney, Marshall Hong, at which he conceded removeability but sought to adjust his status based on an approved application for labor certification. Before each hearing Patel was sent a notice to appear warning him that he could be removed from the United States if he failed to attend. The notices stated that his attendance would be excused only in "exceptional circumstances," such as the "death of an immediate relative."

When Patel failed to attend his master calendar hearing on October 28, 2004, the IJ ordered him removed in absentia. Patel then received notice in December 2004 that he was scheduled to be removed in March 2005. Patel retained two new attorneys, Susan Fortino-Brown and Alexandra Baranyk, who in February 2005 filed with the IJ a motion to reopen and rescind the in absentia removal order. See 8 C.F.R. 1003.23(b)(4)(ii). They asserted that Patel skipped the hearing in Chicago to visit a dying friend in Dallas, Texas, and noted that the BIA has held that a close family member's illness may justify an alien's failure to attend a hearing. They argued that Patel considered his friend to be a "second mother" and so his absence should be excused. The IJ denied the motion, and in September 2005 the BIA affirmed. On March 17, 2006, Patel received notice that he was scheduled for removal on April 11, 2006.

On April 10—the day before his scheduled removal — Patel's current attorney, Raymond Sanders, filed the current motion to reopen with the BIA, arguing that all three of Patel's prior attorneys were ineffective. He attached to the motion two complaints that he had filed on April 6 with the Illinois Attorney Registration and Disciplinary Committee ("ARDC") (technically, the ARDC calls these "requests for investigation"); the first was directed against Hong and the second against Fortino-Brown and Baranyk. In the first complaint Patel accused Hong of assuring him that the IJ would grant a continuance if he skipped the hearing, and of failing to file a motion to reopen as promised after the IJ ordered Patel's removal. In the second complaint Patel claimed that Fortino-Brown and Baranyk were ineffective for failing to alert the BIA to "Hong's malfeasance."

The BIA denied the second motion to reopen because it found that Patel had not complied with the Lozada procedural requirements for basing a motion to reopen on allegations of ineffective assistance of counsel. Under Lozada the motion must include (1) an affidavit from the alien attesting to the relevant facts and setting forth a detailed account of the actions counsel agreed to take on his behalf, (2) evidence that former counsel was informed of the allegations and given the opportunity to respond, and (3) an explanation of whether the alien filed a complaint with appropriate disciplinary authorities and if not, why not. 19 I. & N. Dec. at 639. The BIA found that Patel had met neither the first requirement—his affidavit did not allow the BIA to "ascertain the scope of the work" that his prior attorneys had agreed to do—nor the second—there was no evidence that he notified the attorneys of his allegations.

Patel attached to his opening brief to this court Hong's response to his ARDC complaint. At no time did Patel give that response to the BIA, so it is not part of the administrative record, and Patel's inclusion of the response in his brief is improper. Regardless, Hong's response undercuts Patel's contention that he was the victim of deficient performance by Hong. According to Hong, Patel said he wanted to skip the October 2004 hearing to visit a sick uncle, not a dying friend. By his account, Hong repeatedly told Patel to attend the October 2004 hearing. After the IJ entered the removal order, Hong told Patel that he would file a motion to reopen only if Patel provided a physician's letter or death certificate showing that his uncle had died and documents establishing a family relationship. Patel failed to produce these documents, so Hong told him in December 2004 that he would not file a motion to reopen. Hong did not hear from Patel again until March 20, 2006, three days after Patel received notice of his imminent removal. On that day, Patel came to Hong's office and said that attorney Royal Berg had informed him that he would be deported unless Hong filed an affidavit with the BIA accepting responsibility for Patel's failure to attend the hearing. According to Hong, Patel even admitted telling Berg that Hong had advised him against skipping the hearing, and he offered Hong money to sign the affidavit Patel already had prepared. When Hong refused, Patel threatened to file an ARDC complaint.

Patel also attached to his opening brief Fortino-Brown's response to his ARDC complaint. Once again, this document was never given to the BIA, is not part of the administrative record, and is not properly included in Patel's brief. In her response, Fortino-Brown asserts that she did not argue in her motion to reopen that Hong was ineffective because after investigating she determined that his conduct had been "entirely proper."

II. Discussion

Patel argues that the BIA should have been more flexible in applying Lozada, and asserts that his affidavits in support of his ARDC complaints, which he attached to the motion to reopen, fulfill the Lozada prerequisites. We review the BIA's denial of a motion to reopen for abuse of discretion. Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir.2007).

Although aliens do not have a constitutional right to effective counsel, we have endorsed the BIA's decision to grant relief where, in its discretion, the BIA finds that an alien's claim has been undercut by bad lawyering. See Magala v. Gonzales, 434 F.3d 523, 525-26 (7th Cir.2005); Stroe v. INS, 256 F.3d 498, 501 (7th Cir.2001). The BIA established the Lozada requirements to filter out strategic claims of ineffective assistance, which often are filed for the purposes of delay. See Lozada, 19 I. & N. Dec. at 639; Stroe, 256 F.3d at 501. The Lozada requirements reduce the potential for abuse by providing information from which the BIA can assess whether an ineffective assistance claim has enough substance to warrant the time and resources necessary to resolve the claim on its merits. See Lozada, 19 I. & N. Dec. at 639.

The BIA is free to deny motions to reopen for failure to comply with Lozada as long as it does not act arbitrarily. See Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir.2006). We have not expressly decided whether the BIA abuses its discretion by requiring strict compliance with Lozada, but several circuits have held that aliens only need to show substantial compliance. See, e.g., Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir.2007); Habchy v. Gonzales, 471 F.3d 858, 864 (8th Cir.2006); Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir.2001). But because Patel did not fulfill two of the three Lozada requirements, he has not shown even substantial compliance. See Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir.2006) ("[A]n alien who fails to satisfy any of the three Lozada requirements will rarely, if ever, be in substantial compliance.").

Lozada requires that an alien first notify former counsel of the allegations and give counsel an opportunity to respond, and then file a complaint with the appropriate disciplinary authorities. 19 I. & N. Dec. at 639. This two-step notification requirement is a particularly important screening tool because in many cases it removes the need for an evidentiary hearing and enables the BIA to resolve ineffective-assistance claims on the basis of documentary submissions. See In re Rivera-Claros, 21 I. & N. Dec. 599, 604 (BIA 1996). By requiring the alien to give counsel an opportunity to respond before the motion...