Interim Decision *3059
MATTER OF LOZADA
In Deportation Proceedings
A-31025184
Decided by Board April 18, 1988
(1) A motion to reopen or reconsider 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 allegatione
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.
(2) An alien deportable under section 241(aX4) of the Immigration and Nationality
Act, 8 U.S.C. § 1251(a)(4) (1982), is ineligible for voluntary departure unless he
qualifies under the provisions of section 244(aX2) of the Act,
8 U.S.C. § 1254(aX2)
(1982), which in the case of criminal offenders requires, inter alia, that the alien
have been physically present in the United States and a person of good moral
character for a continuous period of not less than 10 years following the date of
his conviction_ Matter of P-,
6 I&N Dec. 788 (BIA 1955), followed.
CHARGE:
Order: Act of 1952—Sec. 241(aX4) [
8 U.S.C. §1251(aX4)J—Crime involving moral
turpitude
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Mark L. Galvin, Esquire John M. Furlong
Watt & Galvin General Attorney
110 Chestnut Street
Providence, Rhode Island 02903
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
On March 13, 1985, an immigration judge found the respondent
deportable as charged on the basis of his concessions at the hearing
under section 241(aX4) of the Immigration and Nationality Act, 8
U.S.C. §125.1(a)(4) (1982), as an alien who was convicted of a crime
involving moral turpitude committed within 5 years of entry and
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was sentenced to confinement for 1 year or more, denied his applications for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c)
(1982), and for voluntary departure under section 244(e) of the Act,
8 U.S.C. § 1254(e) (1982), and ordered him deported to the Dominican Republic. That same day, the respondent filed a Notice of
Appeal (Form I-290A), indicating that he would be filing a separate
written brief or statement in support of his appeal. No such brief
or statement was forthcoming. On July 8, 1986, over a year after
the immigration judge had entered his decision in the case, the
Board summarily dismissed the appeal, noting that the respondent
had in no meaningful manner identified the claimed error in the
immigration judge's comprehensive decision of March 13, 1985.
On January 20, 1987, the respondent, through present counsel,'
filed a motion to reopen the proceedings, alleging (1) that prior
counsel's failure to submit a written brief or statement explaining
the basis for appeal constituted ineffective assistance of counsel
and (2) that the immigration judge erred as a matter of law and
discretion in deciding the case. The respondent also filed a petition
for review of the Board's decision with the United States Court of
Appeals for the First Circuit. The court has stayed action on. the
petition for review pending the Board's resolution of the motion to
reopen. The motion will be denied.
Any right a respondent in deportation proceedings may have to
counsel is grounded in the fifth amendment guarantee of due process. Magallanes-Damian v. INS,
783 F.2d 931 (9th Cir. 1986); Paul
v. INS,
521 F.2d 194 (5th Cir- 1975). Ineffective assistance of counsel
in a deportation proceeding is a denial of due process only if the
proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Ramirez-Durazo v.
INS,
794 F.2d 491 (9th Cir. 1986); Lopez v. INS,
775 F.2d 1015 (9th
Cir. 1985); see also Magallanes-Damian v. INS, supra (alien must
show not merely ineffective assistance of counsel, but assistance
which is so ineffective as to have impinged upon the fundamental
fairness of the hearing in -violation of the fifth amendment due
process clause). One must show, moreover, that he was prejudiced
by his representative's performance. Mohsseni Behbahani v. INS,
796 F.2d 249 (9th Cir. 1986). See generally Matter of Santos,
19 I&N
Dec. 105 (BIA 1984).
The Government maintains that the fact that prior counsel did
not submit a brief does not in itself amount to deprivation of due
process. We agree.
The record before the Board does not contain counsel's Notice of Entry of Appearance as Attorney or Representative (Form G-28).
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Failure to specify reasons for an appeal is grounds for summary
dismissal under 8 C.F.R. § 3.1(d)(1-aXi) (1988). See generally Matter
of Valencia,
19 I&N Dec. 354 (131A 1986). It would be anomalous to
hold that the same action or, more accurately, inaction that gives
rise to a summary dismissal of an appeal could, without more,
serve as the basis of a motion to reopen. To allow such anomaly
would permit an alien to circumvent at will the appeals process,
with its regulatory time constraints, by the simple expedient of
failing to properly pursue his appeal rights, then claiming ineffective assistance of counsel. Litigants are generally bound by the conduct of their attorneys, absent egregious circumstances. LeBlanc v.
INS,
715 F.2d 685 (1st Cir. 1983). No such egregious circumstances
have been established in this case.
A motion based upon a claim of ineffective assistance of counsel
should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts. In the case before us, that
affidavit should include a statement that sets forth in detail the
agreement that was entered into with former counsel with respect
to the actions to be taken on appeal and what counsel did or did
not represent to the respondent in this regard. Furthermore, before
allegations of ineffective assistance of former counsel are presented
to the Board, former counsel must be informed of the allegations
and allowed the opportunity to respond. Any subsequent response
from counsel, or report of counsel's failure or refusal to respond,
should be submitted with the motion. Finally, if it is asserted that
prior counsel's handling of the case involved a violation of ethical
or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.
The high standard announced here is necessary if we are to have
a basis for assessing the substantial number of claims of ineffective
assistance of counsel that come before the Board. Where essential
information is lacking, it is impossible to evaluate the substance of
such claim. In the-iri-stant-case;-for-example, the-respondent has
not alleged, let alone established, that former counsel ever agreed
to prepare a brief on appeal or was engaged to undertake the task.
Then, too, the potential for abuse is apparent where no mechanism
exists for allowing former counsel, whose integrity or competence
is being impugned, to present his version of events if he so chooses,
thereby discouraging baseless allegations. The requirement that
disciplinary authorities he notified of breaches of professional conduct not only serves to deter meritless claims of ineffective representation but also highlights the standards which should be expected of attorneys who represent persons in immigration proceedings,
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the outcome of which may, and often does, have enormous significance for the person.
The respondent's motion is wholly insufficient in light of the
foregoing guidelines. We note, moreover, that no prejudice was
shown to have resulted from prior counsel's failure to or decision
not to file a brief in support of the appeal. The respondent received
a full and fair hearing at which he was given every opportunity to
present his case. We do not find, and the respondent does not
allege, any inadequacy in the quality of prior counsel's representation at the hearing. The immigration judge considered and properly evaluated all the evidence presented, and his conclusions that
the respondent did not merit a grant of section 212(c) relief as a
matter of discretion and that he was ineligible for voluntary departure as a matter of law are supported by the record.
The allegations of error ascribed to the immigration judge in the
respondent's motion are unfounded. Contrary to present counsel's
contention, it is clear from the transcript of hearing and the immigration judge's decision that the immigration judge was well aware
that the respondent committed the offense of obtaining money
under false pretenses several years prior to his conviction of that
offense. And contrary to counsel's contention, the immigration
judge correctly determined that the respondent was not eligible for
a grant of voluntary departure. By the express terms of section
244(e) of the Act, an alien deportable under section 241(a)(4) of the
Act is ineligible for voluntary departure unless he qualifies under
the provisions of section 244(a)(2) of the Act, which in the case of
criminal offenders requires, inter alia, that the alien have been
physically present in this country, and a person of good moral
character, for a continuous period of not less than 10 years following his conviction. See generally Matter of 13—, 6 I&N Dec. 788 (BIA
1955). The 10 -year period is measured from the date of conviction,
not the date the offense was committed, since it is the conviction,
not the commission of the offense, that renders the alien deportable.
Id. Since 10 years from the date of the conviction constituting
the ground of deportation have not yet elapsed, the respondent is
unable to demonstrate statutory eligibility for voluntary departure.
The respondent has shown no basis for reopening or reconsideration.. His motion will be denied.
ORDER: The motion is denied.
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