28 I. & N. Dec. 169
BIA2020Background
- Respondent Jesus A. Melgar, a native of El Salvador, had a long history of arrests and convictions including a Utah conviction for child abuse (Utah Code § 76-5-109(3)(B)).
- The Board dismissed Melgar’s appeal from an IJ removal order on September 3, 2019; Melgar filed a timely motion to reopen on December 2, 2019, claiming ineffective assistance of counsel to obtain a remand to apply for adjustment of status based on an approved I‑130 filed by his U.S. citizen son.
- Melgar’s ineffective-assistance claim was brought against his current attorney, who represented him before the IJ and the Board and continues to represent him in the motion to reopen.
- Melgar did not file a disciplinary (bar) complaint because his attorney “took responsibility” for the error; the Board rejected that explanation as insufficient under Matter of Lozada.
- The Board also found Melgar failed to show prejudice: his newly submitted evidence (letters, rehabilitation material) did not overcome his criminal history or the child‑abuse conviction, so he failed to establish a reasonable probability of obtaining a remand.
Issues
| Issue | Plaintiff's Argument (Melgar) | Defendant's Argument (DHS/Board) | Held |
|---|---|---|---|
| Whether counsel’s admission of error satisfies Matter of Lozada bar‑complaint requirement | Counsel admitted error; filing a complaint unnecessary | Lozada requires filing or a valid explanation; admission by the same attorney is insufficient and risks collusion | Admission does not satisfy Lozada; procedural requirement unmet |
| Standard for prejudice on motion to reopen for ineffective assistance | Melgar: counsel’s omission prejudiced him; would likely have obtained remand | DHS/Board: movant must show a reasonable probability that, but for counsel's error, outcome would differ | Board applies "reasonable probability" standard; prejudice must be shown |
| Whether Melgar’s new evidence would have produced a remand or discretionary adjustment | New evidence of rehabilitation and letters would have persuaded Board/IJ | Criminal history—including child‑abuse conviction—and absence of statements from children outweigh positives | New evidence insufficient; no reasonable probability of remand; motion to reopen denied |
Key Cases Cited
- Harmon v. Sharp, 936 F.3d 1044 (10th Cir. 2019) (describing the "reasonable probability" prejudice standard in ineffective‑assistance context)
- Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (distinguished on mens‑rea grounds regarding offense characterization)