Damian Egwumba v. Jefferson Sessions, III, 682 F. App'x 305

Egwumba, a Cameroonian national, entered the U.S. on an F-1 student visa in 2002; he overstayed after graduating in 2008 and was charged removable in 2011.
At his removal hearing he conceded removability; his counsel requested a continuance which the IJ denied; Egwumba later retained new counsel for appeal and alleged ineffective assistance of former counsel (IAC).
The BIA dismissed his appeal for failing to comply with the procedural Lozada requirements for IAC claims; Egwumba filed motions for reconsideration and to reopen, submitting additional affidavits and documents.
The BIA denied reconsideration and the motion to reopen, finding Egwumba failed to show he informed his former counsel of the complaint and gave her an opportunity to respond (Lozada second requirement).
Egwumba sought judicial review; the Fifth Circuit reviewed the BIA’s denials for abuse of discretion and upheld the BIA’s decision, finding the record did not show strict compliance with Lozada’s requirements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA abused its discretion in denying motion to reopen based on alleged IAC where Lozada requirements were not met	Egwumba argued he satisfied Lozada by submitting affidavits, a certified-mail tracking receipt, bar complaints, and an email showing intent to notify counsel	BIA argued the evidence did not demonstrate what was sent to former counsel or that counsel was informed of the complaint contents and given the opportunity to respond; thus strict Lozada compliance lacking	The court held the BIA did not abuse its discretion; the record did not compel a contrary conclusion and BIA permissibly required strict Lozada compliance
Whether the BIA erred in denying reconsideration when Egwumba submitted new evidence with the motion	Egwumba urged reconsideration and submitted new documentation supporting withholding and IAC	BIA treated the submission as raising new evidence akin to a motion to reopen and found it time- and number-barred; reconsideration normally does not present new evidence	The court upheld the BIA’s refusal to consider new evidence on reconsideration and affirmed denial of reconsideration

Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir.) (motions to reopen are disfavored)
Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir.) (standard for BIA abuse of discretion review)
Singh v. Gonzales, 436 F.3d 484 (5th Cir.) (reconsideration reviewed for abuse of discretion)
Mai v. Gonzales, 473 F.3d 162 (5th Cir.) (IAC grounds for reopening limited to egregious circumstances)
Lara v. Trominski, 216 F.3d 487 (5th Cir.) (discussing Lozada requirements)
Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir.) (BIA may require strict Lozada compliance)
Zhao v. Gonzales, 404 F.3d 295 (5th Cir.) (distinguishing motions to reopen and for reconsideration)
Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir.) (review limits: court will not overturn BIA unless evidence compels different result)