On July 15, the Board of Immigration Appeals (BIA) — the administrative tribunal within DOJ that reviews immigration decisions on behalf of the attorney general — issued an opinion in Matter of L-R-M-C- & V-A-M-M-, clarifying that a motion to reopen premised on a claim of ineffective assistance of counsel must include either substantive proof that a bar complaint was filed concerning the attorney’s shoddy practice or a really good reason that no such complaint was filed. It’s a bad time to be a bad immigration lawyer, and shoddy and corrupt attorneys should take notice that the standards are tightening and get right or get out.
L-R-M-C- & V-A-M-M-
The alien respondents, L-R-M-C- and V-A-M-M-, are a mother and daughter, both of whom are Honduran nationals.
They entered the United States illegally in April 2021, were placed into removal proceedings (presumably after being released from DHS custody), and as relief from removal, L-R-M-C- filed an application for asylum and other humanitarian protections on behalf of herself and her daughter.
On May 3, 2023, the immigration judge found L-R-M-C- was credible but nonetheless denied her relief requests on the ground that she hadn’t met her burden of proof.
A timely appeal of that decision was due at the BIA on June 2, 2023, but no notices of appeal were filed by counsel until more than a month later (on July 19 and 20, 2023), and those appeal notices were rejected because they were defective.
Finally, on July 25, 2023, respondents through counsel successfully filed an appeal, accompanied by a motion asking the Board to accept the untimely filing.
“On September 18, 2023,” the BIA explained, it “considered the motion, noted there was insufficient evidence to support the attorney’s allegation of timely preparation, and summarily dismissed the appeal as untimely.”
The respondents next timely filed a motion to reopen their cases, arguing that they had been “the victims of ineffective assistance of counsel”. What happened next was quite the tale.
Motions to Reopen
Section 240 of the Immigration and Nationality Act (INA) governs removal proceedings, and paragraph (c)(7) therein imposes strict limits on motions requesting that immigration judges and/or the BIA reopen cases in which they have issued dispositive final orders.
Aliens may only file one motion to reopen (with an exception for “battered spouses, children, and parents”), and it must “state the new facts that will be proven at a hearing to be held if the motion is granted” and “be supported by affidavits or other evidentiary material”.
In general, that motion to reopen must be filed within 90 days of the issuance of a final order of removal, though there is an exception for a motion filed after that period when reopening is sought to apply for asylum or similar protections “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered”.
Of course, there is an exception to that exception where the evidence supporting the motion to reopen isn’t material to the “changed country conditions” claim or where it was available and should have been presented at the earlier hearing.
The reason why Congress is strict about motions to reopen was best explained by the Supreme Court in its landmark 1988 opinion in INS v. Abudu: “There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.”
That, coupled with the Court’s later observation that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”, underscores why motions to reopen immigration proceedings are, as the justices’ put it, “disfavored”.
“A Lawyer Shall Provide Competent Representation to a Client”
Lawyers are held to a general standard of competence, and the question that naturally flows from Abudu is what constitutes “a fair opportunity” for aliens to “develop and present” their cases, particularly when their lawyers are inept or otherwise fail to present their clients’ cases adequately.
The first rule in the American Bar Association’s Model Rules of Professional Conduct, one replicated in every jurisdiction that authorizes attorneys to practice law, states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Like most professionals, immigration lawyers run the gamut from exceedingly skilled and experienced to being veritable walking malpractice suits, with most on the former end of the spectrum and closer to that side of the middle.
That said, it’s hardly novel for clients to complain about the aptitude of their lawyers when they lose, but such claims are commonplace when the losers in question are aliens facing deportation from the United States.
Matter of Lozada
Consequently, and even though as one court has observed, “litigants are generally bound by the conduct of their attorneys”, immigration precedent has long allowed aliens to reopen their cases when their lawyers screw them up — so long as there was demonstrated incompetence, and real consequences for the attorney involved.
In 1988, the BIA established standards for aliens seeking to reopen based upon the shoddy work of their legal representatives in its precedent opinion Matter of Lozada.
As the Board held there:
A motion to reopen ... based upon a claim of ineffective assistance of counsel requires (1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.
Montufar-Caballero v. Garland
While that standard may seem fairly straightforward and exacting, it proved to be anything but in this case and others like it. Which brings me to a January 2025 opinion from the U.S. Court of Appeals in Ludin Rosario Montufar-Caballero and V.A.M.M. v. Garland.
You’ll note that the lead petitioner in that case has the same initials as L-R-M-C-, the lead respondent in Matter of L-R-M-C- & V-A-M-M-, and that her minor daughter there has the same initials as the daughter in the BIA’s opinion, as well.
That’s because 8 C.F.R. § 1208.6 bars anyone in the executive branch from disclosing any “information contained in or pertaining to any application for refugee admission, asylum, withholding of removal under section 241(b)(3) of the Act, or protection under regulations issued pursuant to the Convention Against Torture's [CAT’s] implementing legislation” — including the applicant’s name.
There are exceptions to that rule for disclosures of such information in civil and criminal investigations, as well as with respect to the adjudication of the claim itself, including to a federal court “considering any legal action ... arising from the adjudication of, or failure to adjudicate, the asylum application”.
In other words, the 10th Circuit can, and likely must, disclose Montufar-Caballero’s name (the daughter is still a minor, with other judicial rules protecting her identity), but even when the federal appellate court remands a case back down (which is what happened here), the BIA must revert to the pseudonym.
If that sounds silly, such inanity is just the start of the issues I have with the regulation, but that is a topic for another day.
As per the circuit court, when Montufar-Caballero moved to reopen her case before the BIA (based upon Matter of Lozada), she was represented by new counsel, and while (1) the lead petitioner submitted an affidavit with that motion stating that “she had filed a complaint against the attorney with the Utah Office of Professional Conduct”; (2) her former lawyer averred she’d received both the affidavit and the complaint; and (3) the motion included “a certified mail receipt for mail to the Utah Office of Professional Conduct”, the BIA denied that motion because the new lawyer didn’t file the bar complaint itself.
Needless to say, reviewing that complaint would have helped the BIA determine whether the former attorney’s incompetence actually denied the alien “a fair opportunity to develop and present” her case or whether she was simply seeking a do-over or marking time to remain in the United States.
Nonetheless, the 10th Circuit granted Montufar-Caballero’s petition, concluding the BIA had “inexplicably depart[ed] from the established policy in Lozada and impos[ed] an additional requirement for a motion to reopen based on ineffective assistance of counsel that does not appear within” that precedential BIA opinion — specifically the requirement that she submit the complaint purportedly filed with the Utah Office of Professional Conduct.
Matter of L-R-M-C- & V-A-M-M-
That’s pretty strong language, but the BIA took the circuit’s admonition to heart and closed the loop on what respondents must show to seek reopening based on ineffective assistance of counsel in Matter of L-R-M-C- & V-A-M-M-.
In brief, the Board held that motions to reopen alleging ineffective assistance of counsel “must include a copy of the bar complaint filed with disciplinary authorities and proof of the filing of that complaint, or an explanation why a bar complaint was not filed”, which should settle the issue going forward.
Note that this is not some new, Trump II restriction that the Board is only now imposing to make it easier for DHS to expedite removals: The BIA first denied L-R-M-C- and V-A-M-M-‘s motion in May 2024, which is why Merrick Garland, President Biden’s attorney general, is the named respondent in the 10th Circuit’s opinion.
And, respectfully, a requirement that the actual complaint setting forth the lawyer’s incompetence must be attached to a motion to reopen of this sort could easily be read into Matter of Lozada, so I would contest the 10th Circuit’s characterizations of the BIA’s earlier actions.
But the important parts of this opinion are not so much the rules it establishes as the BIA’s explanation for why the standards for seeking reopening based upon ineffective assistance of counsel must be so strict.
Quoting Matter of Rivera, the Board first noted that requiring submission of the complaint “serves to deter meritless claims of ineffective assistance of counsel” by discouraging “collusion between alien and counsel in which ‘ineffective’ assistance is tolerated, and goes unchallenged by an alien before disciplinary authorities, because it results in a delay that is a benefit to the alien”.
As the BIA explained, “The respondents’ current attorney works at the same firm as the attorney being reported. The danger of collusion is especially high in such a case.”
Second, the BIA explained, the bar complaint requirement for reopening “also serves to preserve the integrity of the entire system”, given that “a series of complaints against an individual attorney may alert disciplinary authorities to a pattern of misconduct”.
Third, and reflecting the Supreme Court’s concerns about reopening in the immigration context, the BIA held that where it “must consider competing interests — those of an alien alleging incompetent counsel, and those of a lawyer attempting to minimize deficient conduct — the actual, as-filed complaint assists the adjudicator in determining whether the ‘heavy burden’ for reopening has been met”.
Fourth, and possibly most important, this opinion and Matter of Lozada will now clearly guide “vulnerable aliens” as they attempt “to demonstrate deficient performance by their prior counsel”.
As the Board explained:
Unscrupulous lawyers can harm respondents and have a detrimental effect on the immigration system. A potential loophole exists, however, when the ineffective attorney attempts to avoid official reporting by accepting responsibility in the motion to reopen without filing a bar complaint, or by passing the respondent to a friend or coworker who will assert the ineffectiveness claim but avoid documenting it with the relevant disciplinary authorities.
While such misconduct is rare, it does happen, especially since unlike in most legal malpractice cases (where the purportedly aggrieved client seeks monetary damages), aliens in Matter of Lozada cases receive their benefit from continued litigation and delayed deportation, while, as the Board notes, the lawyer may escape any punishment at all.
Nor would it be “onerous” for L-R-M-C- to provide the Board with the complaint she allegedly filed with the disciplinary authorities, as “Montufar-Caballero” suggested it would be to the 10th Circuit. If she filed it with the appropriate authorities, the BIA concluded, she must submit it to the Board, as well.
Bad Time to Be a Bad Immigration Lawyer
This BIA opinion makes it more likely that formal complaints will be filed when ineffective assistance of counsel is claimed. Combined with DHS’s recent crackdown on attorneys who file fraudulent applications on behalf of their alien clients, this is a bad time to be a bad immigration lawyer. Shoddy and corrupt attorneys should take notice and either up their legal games and get right with the law or find some other way to earn a living.