ASSAAD
Case Information
*1 Cite as 23 I&N Dec. 553 (BIA 2003)
In re Bassel Nabih ASSAAD, Respondent File A72 824 993 - Houston Decided February 12, 2003 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) Case law of the United States Supreme Court holding, in the context of criminal
proceedings, that there can be no deprivation of effective assistance of counsel where there
is no constitutional right to counsel does not require withdrawal from 19 I&N Dec. 637 (BIA 1988),
aff’d
,
(2) The respondent did not establish that his former counsel’s failure to file a timely
appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel .
FOR RESPONDENT: Edward D. Gillett, Esquire, Houston, Texas AMICI CURIAE: [1] Beth Werlin, Esquire; Nadine Wettstein, Esquire; and Mary Kenney, Esquire, Washington, DC
AMICUS CURIAE: [1] Iris Gomez, Esquire, Boston, Massachusetts FOR THE IMMIGRATION AND NATURALIZATION SERVICE: [1] George R. Martin, Appellate Counsel
BEFORE: Board En Banc: SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, COLE,
GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, ESPENOZA, OSUNA, and HESS, Board Members. Concurring Opinions: FILPPU, Board Member, joined by SCIALABBA, Chairman; PAULEY, Board Member.
OSUNA, Board Member:
In a decision dated February 22, 2001, an Immigration Judge denied the respondent’s motion to reopen, in which he alleged ineffective assistance of prior counsel and sought to pursue an appeal of a previous denial of relief. The respondent has appealed from that decision. The appeal will be dismissed.
I. ISSUE
The issue before us is whether an exception to the 30-day time limit for filing an appeal from a decision of an Immigration Judge can ever be made based on a claim of ineffective assistance of counsel. In regard to this question, the Immigration and Naturalization Service seeks to have us reexamine and overturn our decision in Matter of Lozada , 19 I&N Dec. 637 (BIA 1988).
The Service notes that the United States Supreme Court has held, in the
context of criminal proceedings, that where there is no constitutional right to
the appointment of counsel at government expense, there is no constitutional
basis for a claim of ineffective assistance of counsel.
Coleman v. Thompson
,
We acknowledge the arguments made by the Service but are not persuaded that we should withdraw from our decision in . Although the Supreme Court’s decision in Coleman was rendered more than 10 years ago, the Service has never raised it to challenge Lozada in subsequent cases before the Board. See, e.g. Matter of A-A- , 22 I&N Dec. 140 (BIA 1998); Matter of N-K- & V-S- , 21 I&N Dec. 879 (BIA 1997); Matter of Rivera 21 I&N Dec. 599 (BIA 1996), aff’d , 122 F.3d 1062 (4th Cir. 1997) (unpublished table decision). Furthermore, for more than a decade the circuit courts have recognized as valid precedent setting forth procedures by which respondents may present claims of ineffective assistance of counsel.
II. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Syria who entered the United States in 1993 as a nonimmigrant visitor. The record reflects that he was subsequently granted conditional permanent resident status on the basis of his marriage to a United States citizen. Removal proceedings were instituted in 1997 after the termination of his status.
In proceedings before the Immigration Judge, the respondent sought a waiver under section 216(c)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(B) (1994 & Supp. IV 1998), to remove the conditional basis of his permanent resident status. The Immigration Judge denied the waiver, finding that limited evidence was submitted to assess the qualifying marriage and that the respondent knew little about his wife. The Immigration Judge ordered the respondent removed from the United States in a decision dated April 2, 1998. The respondent reserved appeal but his attorney submitted the appeal a week late. [2] We dismissed the appeal as untimely on September 19, 2000. [3]
On February 12, 2001, nearly 3 years after the Immigration Judge’s decision, the respondent, represented by new counsel, sought reopening, presumably so the Immigration Judge would reissue his decision in order for a timely appeal to be filed. [4] With his motion, the respondent submitted evidence in compliance with the procedural requirements of Matter of Lozada for making a claim of ineffective assistance of counsel, including a grievance filed with the State Bar of Texas. The Immigration Judge denied the motion on February 22, 2001, and the respondent has appealed from that decision.
On appeal, the respondent has admitted that the motion filed with the Immigration Judge was untimely, but he argues that former counsel did not inform him of our decision dismissing his original appeal as untimely. He asserts that he did not learn of our order until a Service officer sought to arrest him. The respondent therefore contends that his motion asserting a claim of ineffective assistance of counsel should have been considered. In support of his appeal, he has submitted a letter from the State Bar of Texas to his current counsel, stating that the Investigatory Panel of the District Grievance Committee determined, based on the respondent’s complaint, that there was just cause to believe that former counsel committed professional misconduct.
III. ANALYSIS A. Matter of Lozada In Matter of Lozada , supra , at 639-40, we set forth the procedural requirements for a claim of ineffective assistance of counsel, noting that they were necessary to provide a basis for evaluating the many claims presented, to deter baseless allegations, and to notify attorneys of the standards for representing aliens in immigration proceedings. First, we held that the alien must submit an affidavit detailing the agreement that was entered into with counsel with respect to the actions to be taken and the representations counsel made or did not make in this regard. We also stated that the alien must inform counsel of the allegations of ineffective assistance and give him or her the opportunity to respond. Finally, we concluded that the alien must file a complaint with the appropriate disciplinary authorities, such as a state bar, with respect to any violation of counsel’s ethical or legal responsibilities, or adequately explain why no filing was made. In addition to these requirements, an alien alleging ineffective assistance of counsel must also show that he or she was prejudiced by the actions or inactions of counsel. Id. at 640.
We revisited these procedures in Matter of Rivera , , at 603-05, where we set forth further policy reasons for the “complaint” requirement of Matter of Lozada . We noted that such a filing increases our confidence in the validity of the particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves our long-term interests in monitoring the representation of aliens by the immigration bar. Matter of Rivera , at 605. We further determined that the bar complaint requirement acts as a protection against collusion between counsel and client to achieve delay in proceedings.
It is clear that Matter of Lozada provides a measure of protection for aliens who are prejudiced by incompetent counsel. As a removal proceeding has the potential to deprive a respondent of the right to stay in the United States, which can include separation from family and return to possible persecution, the procedures in that proceeding must be fundamentally fair. Moreover, as discussed below, the courts have consistently recognized that ineffective counsel may deprive an alien of a fair hearing. See, e.g. Saakian v. INS , 252 F.3d 21, 24-25 (1st Cir. 2001). The approach has provided an appropriate framework for analyzing ineffective assistance claims, balancing the need for finality in immigration proceedings with some protection for aliens prejudiced by ineffective assistance of counsel.
B. Supreme Court and Circuit Court Decisions
The Service argues that Matter of Lozada conflicts with the Supreme Court decisions in Coleman v. Thompson , and Wainwright v. Torna , supra . In Wainwright , the Supreme Court found that since a convicted felon had no constitutional right to counsel to pursue a discretionary state appeal, he could not be deprived of the effective assistance of counsel by his attorney’s failure to timely file the discretionary appeal. Wainwright v. Torna supra , at 587 88.
Citing that decision, the Supreme Court reiterated in Coleman that where there is no constitutional right to counsel, there can be no deprivation of effective assistance of counsel. In that case, the prisoner’s attorney had sought state habeas review of various claims, but had filed his state appeal late, resulting in a procedural default. The prisoner claimed that his attorney’s error should excuse the procedural default and allow federal habeas review of the merits of his claim. The Court rejected this argument, holding that because there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Coleman v. Thompson , at 752-53.
In light of
Coleman
and
Wainwright
, the Service argues that we should
reconsider and overturn and hold that a claim of ineffective
assistance of counsel cannot amount to a constitutional violation in
immigration proceedings, where there is no constitutional right to appointed
counsel. Amici disagree, arguing that respondents in immigration proceedings
have both a constitutional and statutory right to competent counsel.
[5]
According to amici, the Supreme Court’s decisions in
Coleman
and
Wainwright
are limited in their application to the specific criminal contexts
in which they arose and are not relevant to whether respondents in
immigration proceedings may assert a constitutional claim of ineffective
assistance based on the Due Process Clause of the Fifth Amendment.
We are not persuaded by the arguments advanced by the Service and
decline to overrule our decision in
Matter of Lozada supra
. We first
acknowledge some ambiguity in the basis set forth in that decision for
respondents to assert ineffective assistance claims. Relying on governing
circuit court law at the time, we stated that any right to counsel a respondent
may have in immigration proceedings is grounded in the Fifth Amendment
guarantee of due process, and that ineffective assistance of counsel is a
denial of due process only if the proceedings were so fundamentally unfair
that the alien was prevented from reasonably presenting his or her case.
Id.
at 638 (citing
Magallanes-Damian v. INS
,
In any event, since was decided 15 years ago, the circuit
courts have consistently continued to recognize that despite having no right
to appointed counsel in an immigration hearing, a respondent has a Fifth
Amendment due process right to a fair immigration hearing and may be
denied that right if counsel prevents the respondent from meaningfully
presenting his or her case.
See, e.g. Osei v. INS
,
The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, has joined the other circuits that have found a
basis in the Fifth Amendment for ineffective assistance of counsel claims. In
Goonsuwan v. Ashcroft
,
Numerous circuit court decisions have also generally endorsed the
procedural requirements we set forth in
Matter of Lozada
for making a claim
of ineffective assistance of counsel.
See, e.g.
,
Xu Yong Lu v. Ashcroft
,
supra
, at 132 (concluding that the three-prong
Lozada
test is a “reasonable
exercise of the Board’s discretion”);
Lara v. Trominski supra
, at 498 (finding
that the general application of the
Lozada
rules is not an abuse of discretion);
Lata v. INS
,
supra
, at 1246 (noting that the Board has laid out a
“comprehensive procedure” that petitioners should follow, and that this
procedure has been adopted by other circuits).
See generally Fajardo v. INS
,
Significantly, most of the decisions cited above were rendered in the
decade after the Supreme Court decided
Coleman v. Thompson
,
supra
. This
strongly suggests that the courts of appeals have not viewed the Supreme
Court’s pronouncements in the criminal context as requiring a reexamination
of the due process underpinnings of ineffective assistance of counsel claims
in the immigration context. The sole circuit court decision that has
questioned the basis for
Matter of Lozada
and that has suggested that aliens
in immigration proceedings may not have a constitutional due process basis
for raising ineffective assistance claims did so in dicta and in a divided
opinion.
Stroe v. INS
,
As a result of this extensive body of law, the principle that aliens may have a valid claim of ineffective assistance of counsel if an attorney’s actions were so deficient as to foreclose the fundamental fairness of the proceedings is settled law in most circuits. We are therefore bound by this precedent. Matter of Anselmo , 20 I&N Dec. 25, 31-32 (BIA 1989). These circuit court cases, including those in the Fifth Circuit, specifically considered the issue of ineffective assistance of counsel in the immigration context and concluded that it may amount to a constitutional due process violation.
The Supreme Court cases cited as controlling by the Service were decided years ago and arose in the context of criminal, rather than immigration, proceedings. Coleman v. Thompson , at 752-54; Wainwright v. Torna , at 587-88. We acknowledge, of course, that Supreme Court law is paramount and must be respected. However, accepting the Service’s interpretation of Supreme Court law in this case would amount to a decree by the Board that the circuit courts that have analyzed the issue in the immigration context, and who are clearly able to consider the Supreme Court’s authority, have reached an incorrect result. We are unwilling to so hold, as it is beyond our limited authority as an administrative decision-making body. Matter of Martin , 23 I&N Dec. 491, 492 (BIA 2002) (deeming circuit court decisions to be “authoritative” precedent). [8]
We therefore decline to accept the Service’s argument that Matter of should be overruled as a result of the Supreme Court’s decisions in Coleman v. Thompson and Wainwright v. Torna . We see no reason, based on Supreme Court law that has never been directly applied to immigration proceedings, to disavow a decision that has garnered general approval in the circuit courts for more than 15 years. [9]
C. Application of Matter of Lozada
In the present appeal, the respondent has complied with the three-step procedural requirements of . He has provided the required affidavit, informed former counsel of the allegations against him, and notified the appropriate disciplinary authorities in the State of Texas. However, we must dismiss the respondent’s appeal because he has not shown the required prejudice stemming from prior counsel’s actions. The respondent asserts that former counsel’s failure to file the appeal in a timely manner is per se prejudicial. We disagree. Although, in some instances, counsel’s failure to file a timely appeal may constitute per se prejudice in removal proceedings, that is not the case here.
The exact parameters of due process protections in cases involving
ineffective assistance of counsel are unclear.
See Chowdhury v. Ashcroft
,
241 F.3d 848, 854 (7th Cir. 2001) (holding that while there is case law
providing that aliens have protection against ineffective counsel based on the
Fifth Amendment, the extent of that protection is unclear, and probably fewer
protections are guaranteed than if immigration proceedings were governed by
the Sixth Amendment);
Mejia Rodriguez v. Reno
, at 1146 (holding that
an alien asserting an ineffective assistance of counsel claim must make a
showing that he or she was eligible for the relief requested). The Fifth Circuit
has held that an alien seeking to prevail on a claim of ineffective assistance
of counsel must show not only that counsel was ineffective, but also that the
alien suffered “substantial prejudice” as a result of counsel’s errors.
Miranda-Lores v. INS
, at 85;
Ogbemudia v. INS
,
We note that in
Roe v. Flores-Ortega
, 528 U.S. 470, 484 (2000), the
Supreme Court held that “counsel’s constitutionally deficient performance
depriv[ing] a defendant of an appeal that he otherwise would have taken,”
establishes a “successful ineffective assistance of counsel claim entitling him
to an appeal” without any additional showing of prejudice. However, for the
same reasons that we do not find the Supreme Court’s decisions in the
criminal context in
Coleman v. Thompson
and
Wainwright v. Torna
controlling in the immigration context, we do not find that the Court’s
pronouncement in
Roe v. Flores-Ortega
requires us to find per se prejudice
from counsel’s failure to file an appeal in immigration proceedings.
See
Hernandez v. Reno
, at 55-57 (1st Cir. 2001) (holding that while, in the
criminal context, counsel’s failure to comply with a defendant’s request to
appeal is treated as prejudice per se, citing
Roe v. Flores-Ortega
, the court
was unwilling to “incorporate into civil deportation proceedings the whole
apparatus of Sixth Amendment precedent”).
But see Dearinger ex rel.
Volkova v. Reno
,
Our review of the record indicates that the respondent received a fair and complete hearing before the Immigration Judge. He was well represented by counsel throughout the hearing before the Immigration Judge and was provided every opportunity to present his case for a waiver under section 216(c)(4)(B) of the Act. [10] In a careful decision, the Immigration Judge determined that the respondent had failed to meet his burden of showing that he had contracted a valid marriage, which is necessary for a waiver under section 216(c)(4)(B). Matter of Stowers , 23 I&N Dec. 605 (BIA 1999); Matter of Gawaran , 20 I&N Dec. 938 (BIA 1995). In addition, the respondent has made no showing in his motion alleging ineffective assistance of counsel that he is eligible for any relief from removal, or that there was error in the Immigration Judge’s decision. Accordingly, we find that the respondent has not shown that he was prejudiced from prior counsel’s conduct, and we will dismiss the appeal.
IV. CONCLUSION
Matter of Lozada , has given the Board a useful framework for evaluating claims of ineffective assistance of counsel and is in accord with controlling precedent in most circuits. We therefore decline to withdraw from its reasoning based on Supreme Court law that has never been directly applied to immigration proceedings. Furthermore, applying the Lozada standards to this case, we find that the respondent has failed to show the requisite prejudice to warrant consideration of his late appeal. Accordingly, the appeal will be dismissed.
ORDER: The respondent’s appeal is dismissed. CONCURRING OPINION: Lauri Steven Filppu, Board Member, in which Lori L. Scialabba, Chairman, joined
I respectfully concur. I agree that the respondent has not shown that we should entertain his original untimely appeal from the order of removal. Unlike the majority, however, I find no basis for distinguishing United States Supreme Court authority on the circumstances in which a party may claim ineffective assistance of counsel.
In
Coleman v. Thompson
,
On the other hand, when the government is not constitutionally required to
provide counsel, a claim of ineffective assistance of counsel will not lie and
any mistakes made by counsel are imputed to the client.
Coleman v.
Thompson
, at 752-54. Absent a governmental obligation to supply
counsel, a client is simply bound by the actions of his or her attorney, even
when, as here, that attorney misses a deadline through no fault of the client.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship
, 507 U.S. 380,
396-97 (1993) (rejecting a lower court’s attempt to separate the conduct of
an attorney from the consequences to the client and stating that clients must
“be held accountable for the acts and omissions of their chosen counsel”);
United States v. Boyle
,
The reasoning behind these Supreme Court decisions does not square with the large body of lower court cases, identified by the majority, finding a Fifth Amendment right to the effective assistance of counsel in immigration proceedings, even though the government has no constitutional obligation to provide counsel to aliens in such proceedings. Adding to the dilemma is our own case law holding that we follow circuit precedent, absent very rare circumstances. E.g. Matter of Anselmo , 20 I&N Dec. 25 (BIA 1989). I agree with the majority that we should not lightly decline to follow circuit precedent. But neither should we decline to follow Supreme Court precedent. When the two seem to conflict, the only answer is to follow the Supreme Court, unless a valid ground for distinction emerges such that the conflict disappears.
Favoring lower court precedent over the Supreme Court is particularly
problematic in a situation such as we have here, where only one court of
appeals has ever confronted
Coleman v. Thompson
,
supra
, or
Wainwright v.
Torna
,
supra
, in the civil immigration context. In that case, the United States
Court of Appeals for the Seventh Circuit expressed concern that “the Board
may not be cognizant of the relevant precedents governing the right to
counsel” and strongly suggested that Supreme Court law, including
Coleman
,
was controlling.
Stroe v. INS
,
Despite its heavy emphasis on simple adherence to long-standing circuit law, the majority does hint at several possible grounds for distinguishing the Supreme Court’s rulings, but none of them is convincing. The majority explains that the Supreme Court cases were decided years ago and arose in the criminal context, and it suggests that there is a difference between the right to the effective assistance of counsel arising under the Sixth Amendment and one arising under the Fifth Amendment.
I do not understand the majority to say that Coleman v. Thompson supra a 1991 ruling, was decided so long ago that its validity today is in doubt. Instead, the majority is justifiably concerned with the number of subsequent court of appeals rulings in the immigration context that have not addressed it. But, ultimately, this concern must give way if there is not a solid analytical ground for distinction. The lower courts do not have the authority to overrule the Supreme Court. If Coleman and Wainwright are not distinguishable, it does not matter how many lower court cases, oblivious to Supreme Court law, exist. Once recognized, the Supreme Court’s rule still prevails. The “criminal law” distinction is also groundless. If there were an absolute dichotomy between civil and criminal cases, we should then be following the Supreme Court’s rulings in civil cases such as United States v. Boyle , supra , and Link v. Wabash R.R. Co. supra , where parties are charged with the mistakes of their lawyers. Yet the majority’s reference to a criminal law distinction may be intended to invoke a presumed contrast between the Fifth and Sixth Amendments. Indeed, such a contrast would naturally suggest itself. It does not, however, actually exist in relation to the issue now before us.
As the Supreme Court has explained, the Sixth Amendment applies only to criminal trial proceedings. It does not apply to criminal appeals. E.g. Martinez v. Court of Appeal of California, Fourth Appellate Dist. , 528 U.S. 152, 159-61 (2000) (stating that in “light of our conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal . . . must be grounded in the Due Process Clause”); Evitts v. Lucey , 469 U.S. 387, 396 (1985) (explaining that the constitutional right to counsel during the first appeal as of right in the criminal context derives in significant part from the Due Process Clause and declaring that a “first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney”).
The Sixth Amendment, consequently, is
not
the source of the government’s
constitutional obligation to furnish counsel during a criminal defendant’s first
appeal as of right.
See Ross v. Moffitt
,
The amici advance claims not endorsed by the majority. But the amici also fail in their further attempts to distinguish Coleman and Wainwright or to identify sources outside the Constitution for a right to the effective assistance of counsel in civil immigration proceedings. Amici seek to distinguish Coleman because of its concerns over federalism; because it involved a discretionary state appeal, as opposed to a first appeal as of right such as the regulations give to aliens in removal cases; and because the Attorney General has sought to promote the competency of the immigration bar through the regulations pertaining to attorney discipline. See 8 C.F.R. §§ 3.101-.109, 292.3 (2002).
Certain aspects of Coleman were influenced by federalism concerns. But, contrary to amici’s contentions, there is no indication in Coleman ’s discussion of the right to “effective assistance” suggesting that the outcome depends on whether the prosecuting authority is the Federal Government or a state government. Amici are correct in noting that the death-row inmate in Coleman was attacking a procedural default, the late filing of a state appeal by his lawyer, occurring after the functional equivalent of his first appeal as of right. The controlling factor, however, was the absence of a constitutional obligation on the state to provide counsel at the stage where the procedural default occurred. In this respect, Coleman is not distinguishable from the respondent’s case, but rather is similar, because the collateral nature of Coleman’s proceedings meant that the state government was not constitutionally required to provide counsel to Coleman, just as the Government is not constitutionally required to provide counsel to the respondent in this removal proceeding. The respondent thus stands on the same constitutional footing as did Coleman when it comes to the question whether either of them has the right to the effective assistance of counsel. See Evitts v. Lucey supra , at 396 n.7.
As for amici’s reference to the attorney discipline regulations, this is
similar to amici’s argument that there is either a statutory or regulatory basis
for finding a right to the effective assistance of counsel in civil immigration
cases, even though the Constitution may not provide such a right. In removal
proceedings, a respondent has the “privilege” of being represented, “at no
expense to the Government.” Sections 240(b)(4)(A), 292 of the Immigration
and Nationality Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362 (2000). This,
however, does not imply a right to competent counsel.
See Pennsylvania v.
Finley
,
Still, this does not end the inquiry. As the majority explains, we could take the respondent’s original late appeal using our certification powers. 8 C.F.R. §§ 3.1(c ), 3.7 (2002); see also Matter of Jean , 23 I&N Dec. 373, 380 n.9 (A.G. 2002) (stating that the certification authority is limited to “exceptional” situations and is not intended as a general cure for filing defects or for circumventing the regulations, even when enforcing them results in hardship); Matter of J-J- , 21 I&N Dec. 976, 984 (BIA 1997) (same, but addressing our sua sponte reopening powers). Further, the majority could retain the procedural tests announced in supra , in connection with any case where attorney error or misconduct lies at the heart of our consideration of the case for certification.
The reasons identified by the majority at the end of its decision are more than sufficient for us to decline to certify the respondent’s original late appeal in this case. Because of its acceptance of circuit court case law, however, the majority necessarily focuses on whether due process requires us to take the late appeal, as opposed to focusing on considerations pertaining to certification under the regulations. The difference, moreover, is likely to be of meaningful consequence.
For example, the majority’s determination that the respondent has a Fifth Amendment right to the effective assistance of counsel in his removal case forces the majority to address the Supreme Court’s decision in Roe v. Flores-Ortega , 528 U.S. 470, 483-86 (2000) (holding, in a criminal case involving a first appeal as of right, that when counsel files a late appeal that “deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal” without the need to show any additional prejudice in relation to the appeal).
The majority is correct that Fifth Amendment due process would not
necessarily require identical procedures in different categories of cases. So
it is not clear that the ruling in
Roe v. Flores-Ortega
, respecting the
nature of the prejudice needed in cases of untimely appeals, would extend to
removal proceedings, even assuming the right to effective assistance of
counsel. But the majority itself recognizes that there already seems to be a
circuit split on this very subject, leading potentially to different procedures
in different circuits.
Compare Hernandez v. Reno
,
None of this would matter, however, if the majority’s focus were on our independent certification power instead of the requirements of due process. Further, some level of review of the underlying merits of a late appeal seems inherent in either the majority’s approach or in the exercise of discretion involving certification. But, as Matter of Jean supra , makes clear, the ordinary hardships arising from an untimely appeal would not warrant certification, meaning that our review could be more selective, with a focus on the needed exceptional situation.
The majority’s approach, as applied in this case, seems more focused on a simple assessment of whether there was any merit to the underlying late appeal. The point of an appeal deadline, however, would be substantially undermined for cases involving counsel if the deadline could be overcome by a simple showing of some merit to the appeal after compliance with the procedural steps required by Lozada .
As for Board Member Pauley’s approach to retaining
Lozada
by analogy
to
Dickerson v. United States
,
In the end, we are an administrative tribunal, and we are bound by the authority of higher courts. It is disconcerting when we confront two lines of seemingly irreconcilable higher authority and when we must choose between them. But, in the absence of an analytically sound basis for distinction, I do not believe we would show disrespect to the courts of appeals if we were to follow the direction of the Supreme Court.
I would dismiss the current appeal for these reasons. CONCURRING OPINION: Roger A. Pauley, Board Member
I join part III.C. of the majority opinion but cannot join part III.B. as a basis
for continuing to apply
Matter of Lozada
, 19 I&N Dec. 637 (BIA 1988),
aff’d
,
I cannot subscribe to this reasoning. Nothing in
Matter of Anselmo Matter of Martin
, , or any other precedent decision of the Board
supports, much less mandates, the rather astonishing proposition that we must
defer to courts of appeals rulings that are at odds with (and that do not even
acknowledge) governing Supreme Court decisions. Indeed,
Matter of
Anselmo
itself discusses and distinguishes with approval a precedent in which
the Board refused to apply a court of appeals decision, precisely because the
issue was before the Supreme Court and had been challenged by the Solicitor
General.
Matter of Mangabat
, 14 I&N Dec. 75 (BIA 1972),
aff’d sub nom.
Cabuco-Flores v. INS
,
Were it not, therefore, for the ground on which I concur in the majority’s result, I would find myself, as does Board Member Filppu, compelled to consider and to determine whether the Supreme Court’s rulings on the constitutional scope of the right to counsel support the Board’s Lozada ruling, and if not, whether any statutory or other basis properly exists therefor. Moreover, in that circumstance, I might well join Board Member Filppu in concluding that its legal foundations, if any, lie in quicksand.
In my view, however, the proper outcome of this case is dictated by
adherence to the principle of stare decisis. While the legal basis of
Matter
of Lozada
, is unclear, and is deliberately left so by the majority’s
opinion, that is not sufficient reason to abandon it as a precedent. The
Supreme Court was recently faced with a similar situation in
Dickerson v.
United States
, 530 U.S. 428 (2000), where a substantial challenge was
mounted to the constitutional foundation of the Court’s decision in
Miranda
v. Arizona
,
The requirements of Lozada are hardly as entrenched in our national culture as are the Miranda warnings, and Lozada has only been on the books for some 15 years, in contrast to Miranda ’s 34 years when Dickerson was decided. Nevertheless, has generated, in that period, an all but universal degree of acceptance and adherence in the country, and it has become “embedded” in immigration law and practice through application by immigration law practitioners, Immigration Judges, and the courts in thousands of cases. Moreover, in contrast to the situation in Dickerson where, shortly after Miranda was issued, Congress enacted a statute embodying its disagreement that warnings are a constitutionally necessary ingredient for determining the admissibility of statements given during custodial interrogation, it is noteworthy that Congress has not seen fit to even attempt to reject or modify Lozada through legislation, despite having passed major immigration reforms in the years since it was decided.
Therefore, whether or not I would have agreed with Lozada ’s “reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now.” Dickerson v. United States , supra , at 429; cf. Matter of Velarde , 23 I&N Dec. 253, 268 (BIA 2002) (Pauley, dissenting). Finally, Lozada ’s rule may well have served to improve the quality of legal representation afforded to aliens in immigration proceedings and thus, like the warnings required by Miranda , the effect of Lozada does not provide the “special justification” the Supreme Court has held is necessary to justify overturning an established precedent. Dickerson v. United States , , at 429. [2]
I therefore agree with the majority that Lozada remains applicable to the respondent’s case. But as earlier noted, I also join in the majority’s holding, in accordance with a decision from the First Circuit, [3] which initially affirmed , that the respondent needed to demonstrate that he suffered prejudice from the ineffective assistance of counsel in failing to file a timely notice of appeal, but he did not do so. Accordingly, I concur in the order dismissing his appeal.
Notes
[1] We acknowledge the thoughtful arguments raised in the supplemental briefs submitted by amici curiae and the Immigration and Naturalization Service in response to our request for additional briefing. We have considered both of the amici briefs dated April 23, 2001, and February 26, 2002, even though the former brief was not submitted directly in relation to the case now before us.
[2] The respondent was competently represented by counsel at the hearing before the Immigration Judge. After the conclusion of those proceedings, however, the respondent apparently dismissed that attorney and retained new counsel. It was the second attorney who filed the appeal late and who is the subject of the present ineffective assistance claim filed by the respondent’s current counse l.
[3] The Immigration Judge’s order became final when the respondent’s appeal was not timely filed. See section 101(a)(47)(B)(ii) of the Act, 8 U.S.C. § 1101(a)(47)(B)(ii) (2000) (providing that a deportation order becomes final upon the expiration of the period in which the alien is permitted to seek review by the Board); 8 C.F.R. § 3.38(b) (2002) (specifying that an appeal must be filed within 30 days); 8 C.F.R. § 3.3(a)(1) (2002) (describing how an appeal may be taken to the Board); see also Matter of Jean , 23 I&N Dec. 373, 378 (A.G. 2002).
[4] The Service asserts that the respondent should have filed his motion to reopen with the Board, rather than with the Immigration Judge. We need not address the Service’s procedural objections, because we view the issues posed by this case to be sufficiently important for us to review pursuant to our independent authority to certify, reopen, or reconsider a case. 8 C.F.R. §§ 3.1(c), 3.2(a) (2002); see also Matter of G-D- , 22 I&N Dec. 1132, 1133-34 (BIA 1999) (stating that the Board uses its authority to reopen or reconsider cases sparingly, in “truly exceptional” situations). Our invocation of these powers extinguishes any procedural questions pertaining to the timeliness of the respondent’s motion or to the forum in which it is filed.
[5] In light of our disposition of this case, we find it unnecessary to address whether there is a statutory basis in the Immigration and Nationality Act for raising a claim of ineffective assistance of counsel. See sections 240(b)(4)(A), 292 of the Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362 (2000) (stating that a respondent has the “privilege” of being represented, “at no expense to the Government”). We also do not reach the argument advanced by amici that claims of ineffective assistance derive from regulations of the Executive Office for Immigration Review that enforce standards of conduct for those appearing before Immigration Judges and the Board. See Professional Conduct for Practitioners – Rules and Procedures, 65 Fed. Reg. 39,513 (2000).
[6] We acknowledge that some courts have taken a “broad” view of the
Lozada
requirements,
holding that we should apply a flexible approach by not mandating strict adherence to all of the
Lozada
steps in every case.
See Xu Yong Lu v. Ashcroft
,
supra
, at 134 (noting that while in
many, if not most, cases, persons alleging ineffective assistance should file disciplinary
complaints, this is not an “absolute” requirement);
Saakian v. INS
(endorsing a flexible
approach to );
Castillo-Perez v. INS
,
[7] According to Judge Wood’s concurring opinion in Stroe v. INS , at 505, “[A]s the Supreme Court constantly reminds us, due process is a flexible concept, and I see no reason to make a categorical assumption that it will never be implicated in a counsel-related problem in an immigration case.”
[8] We also note that the current regulations governing asylum claims specifically include ineffective assistance of counsel as a potential exception to the 1-year deadline for filing asylum applications. See 8 C.F.R. § 208.4(a)(5)(iii) (2002) (providing that ineffective assistance of counsel may constitute “extraordinary circumstances” excusing a failure to file an asylum application within the 1-year deadline). These regulations mandate that an alien claiming such circumstances must comply with the procedural steps of Matter of Lozada . The supplementary information to the latest revision of the asylum regulations took note of the Service’s arguments before the Board advocating a reexamination of as part of a broader assessment of the role that counsel error may play in requests for relief in immigration proceedings. Asylum Procedures, 65 Fed. Reg. 76,121, 76,124 (2000). However, the language of 8 C.F.R. § 208.4(a)(5)(iii) has remained unchanged since it was added to the asylum regulations in 1997.
[9] In their respective concurring opinions, Board Members Filppu and Pauley, while reaching different conclusions about the effect of Coleman v. Thompson and Wainwright v. Torna (continued...)
[9] (...continued)
make the point that the Board should follow Supreme Court authority in instances where that
authority conflicts with precedents of the circuit courts. We agree. As noted above, Supreme
Court law is paramount and the Board, along with every other judicial or quasi-judicial tribunal
in this country, is mandated to follow it. Were we convinced of a conflict between the
Supreme Court’s pronouncements and circuit court precedents, we would follow Supreme
Court law without question. In this case, however, for the reasons explained in this decision,
we find that the Court’s decisions in
Coleman
and
Wainwright
do not govern the question
whether there is a Fifth Amendment basis for raising ineffective assistance of counsel claims
in immigration proceedings, where virtually every circuit that has looked at this issue over the
years has not identified such a conflict with applicable circuit law.
Matter of Mangabat
14 I&N Dec. 75 (BIA 1972),
aff’d sub nom. Cabuco-Flores v. INS
,
[10] As noted earlier, the respondent was represented by one attorney before the Immigration Judge, but he hired a different attorney to file his appeal with the Board. See supra note 2.
[1] The court in
Stroe
described its own older case law, as well as that from most other circuits,
as having “assumed” the existence in immigration cases of a right to the effective assistance
of counsel.
Stroe v. INS
, at 499-500;
see also Pop v. INS
,
[2] Amici also advance an “equitable tolling” claim as to the motion to reopen issues in this case, (continued...)
[2] (...continued)
but not as to the original untimely appeal, which forms the basis for the ineffective assistance
of counsel claim. Statutes of limitation are subject to tolling but jurisdictional provisions are
not.
See Zipes v. Trans World Airlines, Inc.
,
[1] The majority disregard the Supreme Court decisions on which Board Member Filppu and the Service rely because they were rendered in a different, i.e., criminal law, context. This, however, is not a sufficient basis of distinction. Generally speaking, criminal defendants enjoy the protection of constitutional guarantees of the right to counsel and due process of law to a greater extent than do aliens in civil immigration proceedings. The majority recognize this principle—indeed they accord it determinative effect—when they find that the automatic prejudice rule that the Supreme Court itself has held applies in the criminal context to counsel’s failure to file a timely appeal does not apply in this case. But the majority unaccountably fail to apply the same principle to the Supreme Court’s due process decisions regarding the right to effective assistance of counsel or to explain why limitations on that right acknowledged by the Supreme Court in the criminal context do not apply, a fortiori, in immigration proceedings.
[2] Board Member Filppu criticizes this approach because “we are not the Supreme Court” and
“do not speak with authority on issues of constitutional law.”
Matter of Assaad
, at 568
(Filppu, concurring). I do not find these facts to weaken the propriety of relying on stare
decisis principles as a basis for deciding this case. Presumably, Board Member Filppu is
implying that the decisions of lower tribunals should be regarded as less worthy of precedential
deference by those tribunals, because of the possibility of reversal by a higher authority. But
I am aware of no such doctrine. Rather, the extent of reliance on settled questions of law,
which as noted above is great in this case, plays the major part in stare decisis. In short, stare
decisis is not only for the Supreme Court.
See, e.g. EEOC v. Trabucco
,
[3]
Hernandez v. Reno
,