Ugbajah v. Sessions
687 F. App'x 19
| 2d Cir. | 2017Background
- Petitioner Iyk O. Ugbajah, a Nigerian national, sought review of the BIA’s Feb. 17, 2016 denial of his motion to reopen removal proceedings.
- Ugbajah filed the motion to reopen after the 90-day statutory window; the BIA found it untimely.
- Ugbajah claimed ineffective assistance of prior counsel to excuse the time bar and sought to pursue asylum, withholding, and CAT relief that former counsel allegedly did not file.
- He submitted an affidavit asserting he wanted asylum but did not detail any agreement with prior counsel about filing asylum or other relief.
- He did not file a disciplinary complaint against his prior attorney and explained he could not from detention; by the time of the motion he had current counsel who could have assisted.
- The BIA denied the motion for failure to substantially comply with Lozada requirements; the Second Circuit reviewed for abuse of discretion and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused discretion in denying untimely motion to reopen | Ugbajah argued ineffective assistance of counsel excused the 90‑day time limit and justified reopening to pursue asylum/CAT/withholding claims | DHS (via BIA) argued the motion was untimely and Ugbajah failed to meet Lozada prerequisites for ineffective assistance, so time bar stands | Held: No abuse of discretion; motion denied as untimely because Lozada requirements not substantially met |
| Whether Ugbajah complied with Lozada’s requirement to describe agreement with former counsel | Ugbajah contended counsel failed to file asylum despite his desire to seek it | Government/BIA noted Ugbajah’s affidavit did not describe any specific agreement or request to counsel to file asylum | Held: Failure to describe the agreement justified denying relief under Lozada |
| Whether failure to file a disciplinary complaint was excused | Ugbajah claimed inability to file from detention as excuse | BIA/Government observed he later had current counsel and provided no reasonable explanation for not filing | Held: Explanation not reasonable; failure to file forfeited that Lozada requirement |
| Whether BIA’s procedural handling violated due process by not reaching merits | Ugbajah argued BIA didn’t consider fear evidence or background and thus denied fair process | Government contended BIA permissibly denied on procedural Lozada grounds without reaching merits | Held: No due process violation; BIA may deny on Lozada noncompliance and strategic decisions by counsel do not necessarily render proceedings unfair |
Key Cases Cited
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (motions to reopen are disfavored; abuse-of-discretion review)
- INS v. Doherty, 502 U.S. 314 (1992) (standards for motions to reopen and removability procedures)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (ineffective assistance of counsel can excuse time limits)
- Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43 (2d Cir. 2005) (Lozada compliance required to pursue ineffective assistance claim)
- Twum v. INS, 411 F.3d 54 (2d Cir. 2005) (describing Lozada requirements)
- Esposito v. INS, 987 F.2d 108 (2d Cir. 1993) (flexibility in Lozada requirement when reasonable explanation exists)
- Changxu Jiang v. Mukasey, 522 F.3d 266 (2d Cir. 2008) (counsel’s strategic decisions do not necessarily render proceedings unfair)