Ninth Circuit Grants Reopening Where Prior Counsel Failed to Notify Clients of BIA Decision

The Ninth Circuit has granted a petition for review filed by a Honduran family after the BIA denied their motion to reopen and reissue its prior decision affirming the denial of asylum, withholding of removal, and CAT protection. The family's former attorney did not read the BIA's emailed decision for months and failed to timely advise them of the thirty-day deadline to seek judicial review, causing them to miss it entirely.

The Court held that the BIA erred in concluding it lacked authority to consider an ineffective assistance claim based on counsel's failure to advise about proceedings before a different tribunal, reaffirming that the Board has long had discretion to consider such claims. The Court also held that mailing a courtesy copy of the decision directly to the family did not rebut the presumption of prejudice from counsel's error, since it was unreasonable to expect non-English-speaking petitioners with limited education to independently decipher the filing deadline. The case was remanded for the BIA to apply the presumption of prejudice and address the merits of the ineffective assistance claim.

The full text of Menjivar-Ayala v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/07/09/24-4562.pdf

BIA Denies Reopening Where Forced-Abortion Claim Lacked Reasonably Available Corroboration

The Board of Immigration Appeals has denied a Chinese respondent’s motion to reconsider and motion to reopen after the denial of asylum and withholding of removal. The respondent claimed that she had been forced to undergo an abortion in China and argued that the agency improperly required corroboration.

The Board held that the Immigration Judge properly required corroboration of credible but unpersuasive testimony and properly found that corroborating evidence of the alleged forced abortion was reasonably available. The Board also rejected the respondent’s ineffective assistance claim, finding that counsel did not act unreasonably by relying on a certified translation of evidence submitted by prior counsel.

The full text of Matter of Y-H-L- can be found here: https://www.justice.gov/eoir/media/1446391/dl?inline

Sixth Circuit Rejects Ineffective Assistance Claim for Failure to Comply with Lozada

The Sixth Circuit has dismissed in part and denied in part consolidated petitions filed by a Liberian lawful permanent resident ordered removed after firearms convictions and an embezzlement conviction. Prior counsel had conceded removability and applied for cancellation of removal, which was denied in discretion.

The Court dismissed the direct challenge to removability for lack of exhaustion (the direct appeal to the agency did not challenge his removability) and dismissed the discretionary cancellation challenge for lack of jurisdiction. The Court also denied the ineffective assistance claim because the respondent did not satisfy Lozada’s procedural requirements; photocopies of unsent letters and unfiled grievance forms were insufficient to show that a bar complaint had actually been filed and prior counsel had actually be notified of the charges against him. The Court further upheld the BIA’s denial of the government’s unsupported motion to reopen and dismiss, since it failed to explain what circumstances had changed since issuance of the final removal order that would justify reopening.

The full text of Morris v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0182p-06.pdf

First Circuit Remands Ineffective Assistance Claim After Missed BIA Briefing Deadline

The First Circuit has determined that the Board of Immigration Appeals abused its discretion in denying a motion to reopen based on ineffective assistance of counsel. The petitioner’s attorney missed the BIA briefing deadline in her appeal from the denial of adjustment of status. The BIA found that the petitioner had not complied with Lozada (though it did not specify how she failed to comply) and faulted the petitioner for not filing her brief with her motion to reopen (even the BIA had previously denied a motion for a late filed brief and returned the brief to counsel).

The Court denied the petition for review of the underlying adjustment denial, finding that it lacked jurisdiction to review the discretionary denial of relief. However, the Court granted the petition as to reopening, finding that the BIA failed to explain its Lozada ruling, failed to address a substantial prejudice argument, and failed to account for the fact that the late brief had been before the Board at several points. The case was remanded for further proceedings.

The full text of Buckley v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1957P-01A.pdf

Fifth Circuit Finds Father-in-Law's Arrest Was Not a Changed Country Condition

The Fifth Circuit has determined that a Salvadoran respondent's untimely motion to reopen did not qualify for the changed country conditions exception. The respondent argued that he faced increased danger in El Salvador after his father-in-law, an alleged former MS-13 official, was arrested and extradited to the United States, causing MS-13 to believe that the father-in-law had cooperated with the FBI.

The Court found that the father-in-law's arrest and extradition were changes in the respondent's personal circumstances, not changed country conditions in El Salvador. Although the respondent may now face greater danger, the danger flowed from a family-specific development, rather than from a material nationwide change in conditions. The Court also rejected the respondent's request for equitable tolling, finding that he did not establish that former counsel's alleged ineffectiveness prevented him from timely filing the motion to reopen.

The full text of Prado-Majano v. Blanche can be found here: https://www.ca5.uscourts.gov/opinions/pub/25/25-60040-CV0.pdf

Eighth Circuit Affirms Denial of IAC Claim

The Eighth Circuit has affirmed the agency’s denial of a motion to reopen based on ineffective assistance of counsel because the attorney failed to provide proof that his self-reported bar complaint was actually sent to the relevant disciplinary authorities.

The full text of Rodriguez Irias v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/02/251419P.pdf

Eleventh Circuit Reaffirms Lozada Requirements

The Eleventh Circuit has reaffirmed the procedural requirements of Matter of Lozada, finding that the Supreme Court’s decision in Lopez Bright did not undermine the case law relying on Lozada.

The full text of Gutierrez-Milan v. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202413788.pdf

Fourth Circuit Addresses Standards for Ineffective Assistance of Counsel

The Fourth Circuit has determined that whether an attorney has rendered ineffective assistance of counsel requires an evaluation of whether counsel was “reasonably competent.” Noting that the petitioner’s counsel at trial proffered a particular social group that was “dead on arrival” under Fourth Circuit precedent, and failed to proffer two applicable and cognizable social groups identified by later counsel, the court determined that trial counsel did not act in a reasonably competent manner.

The full text of Guandique-de Romero v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241154.P.pdf

Ninth Circuit Addresses Scope of IAC Claims

The Ninth Circuit has determined that the Board of Immigration Appeals’ power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal had been entered includes the power to review deficient performance that occurs before a different tribunal, including the Ninth Circuit. “Given this longstanding precedent, the Board acted arbitrarily when it denied Li’s motion to reopen on the sole basis that Li’s claimed ineffective assistance occurred before a ‘different tribunal.’”

“If the Board believed it had no discretion to review ineffective assistance claims based on conduct before a different tribunal, then the agency abused its discretion. If the Board instead believed that Li should have sought relief in the Ninth Circuit after the petition had been dismissed, it does not explain how that would comport with its own procedural requirements under Matter of Lozada, which insists upon such issues being raised before the Board in the first instance. Finally, if the Board harbored concerns grounded in the separation-of-powers doctrine—a topic it did not raise in its decision—it does not explain how those concerns manifest in Li’s case and not any of the cases that came before it. The dissent accuses us of requiring the Board to invoke the magic words ‘separation-of-powers’ in its decision. But it is not merely the Board’s failure to mention the doctrine; it is its failure to provide a reasoned explanation why an attorney’s failure to file an opening brief before the Ninth Circuit should implicate separation-of-powers concerns when the exact same thing happened in Lata and we explained that the petitioner should have first pursued relief with the Board.”

The full text of Li v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/10/18-70278.pdf

CA Court of Appeals Reverses Denial of Motion to Vacate

The CA Court of Appeal has reversed the denial of a motion to vacate where defense counsel testified that she advised the defendant he would lose his residency status and the defendant signed a plea form advising him that he must expect his conviction would result in deportation, exclusion from admission, and denial of naturalization. The court noted that the defendant sent a letter requesting to withdraw his plea before sentencing, noting his fears that he could be deported. Even though he repeatedly told the judge he wanted to withdraw his plea if he was going to be deported, the judge denied his request.

Four years later, the defendant filed a motion to vacate under Penal Code 1473.7. He indicated that he had difficulty reading the plea because of cataracts, that his whole life was in the United States, and that the last time he was in Mexico, he was assaulted by the police due to his bisexuality. Although the DA agreed to allow the defendant to withdraw his plea and re-plead to a misdemeanor, the judge refused to abide by the agreement.

The court reasoned that defense counsel’s advisals were insufficient. Despite her testimony, her notes indicated that she had advised the client his immigration status would change and he would have an immigration hearing. Nonetheless, the immigration consequences of an aggravated felony (mandatory deportation) were crystal clear at the time of plea. “Counsel did not explain that Manzanilla faced mandatory deportation. Counsel’s advice was deficient for lack of specificity despite clear law establishing that Manzanilla’s removal was virtually certain.” Such advice is constitutionally deficient.

The court noted that the plea form, which described the immigration consequences in mandatory terms, did not cure this inadequate advisal. Even with the word “will,” the plea form is simply a generic advisement, not designed to substitute for accurate advice from counsel. The court noted that there was evidence other than the defendant’s testimony regarding counsel’s advice - namely, counsel’s notes and testimony.

The court found that defense counsel also failed to creatively plea bargain. “It is undisputed that counsel failed to make a counteroffer of 364 days in custody, which was more likely to be accepted by the prosecution than the more significant sentence reductions she sought of six or nine months.” “Moreover, counsel does not remember raising Manzanilla’s immigration status in plea bargaining, and her notes confirm this. Her notes and memory also confirm that she learned Manzanilla was a legal permanent resident only when they discussed the consequences of the plea, after he stated he would take it, and after her counteroffers. This suggests that counsel failed to bargain creatively with the prosecution in a manner that considered immigration consequences.”

The court further noted that the defendant was not required to affirmatively show the prosecution would have accepted 364 days. “Here, there is an indication the prosecution would reasonably accept a plea of 364 days because the prosecution’s opening offer was 365 days. The People offer no explanation as to why the prosecution would have not found a one-day reduction reasonable.”

The court determined that there was evidence the defendant did not understand the consequences of his plea. For example, he told his defense counsel it was “ok” if he was required to attend an immigration court hearing, so long as the hearing was in the United States. This statement shows that he did not understand the nature of an immigration process, which is designed to establish a non-citizen’s deportability. “If Manzanilla knew he was subject to mandatory deportation to Mexico, then his concern about the location of his immigration hearing seems irrelevant.”

The court also noted the swiftness with which the defendant brought his concerns about immigration to the attention of the criminal court. “He did not wait months or years to claim he did not realize he would be deported. He did not wait to claim he did not understand the consequences only after efforts to avoid deportation proceedings had failed. He was not making a desperate allegation to avoid the consequences of an immigration proceeding that had gone unexpectedly bad. Manzanilla advised the court at the first court hearing after entry of the plea, 21 days later, with no deportation proceeding underway, that he had not understood that deportation was a certainty.”

The full text of People v. Manzanilla can be found here:

http://sos.metnews.com/sos.cgi?0722//B313557

Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

The full text of Saint Ford v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

Ninth Circuit Rejects Ineffective Assistance of Counsel Claim

The Ninth Circuit has rejected a claim that a petitioner’s two prior attorneys committed ineffective assistance of counsel by failing to file untimely motions to reopen for him at an earlier date. “Under the circumstances of this case, we thus cannot conclude that to avoid engaging in ‘egregious conduct that threatens the fairness of the proceedings,’ petitioner’s prior lawyers were required to file untimely motions to reopen with no apparent prospect for avoiding the time bar.”

The full text of Hernandez-Ortiz v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/16-72752.pdf

BIA Vitiates "Self-Lozada" Procedure

The Board of Immigration Appeals has determined that when an attorney admits that they rendered ineffective assistance of counsel, their client is not excused from filing a bar complaint, when the same attorney is trying to reopen the proceedings based on their admitted ineffective assistance. In addition, the Board has determined that the respondent must show that that, but for counsel’s error, he would have prevailed on his claim, in order to establish the required prejudice for an ineffective assistance of counsel finding.

The full text of Matter of Melgar can be found here:

justice.gov/eoir/page/file/1342986/download

Ninth Circuit Affirms No Prejudice Requirement for IAC MTR Where In Absentia Issued

The Ninth Circuit has affirmed that a petitioner seeking reopening based on ineffective assistance of counsel need not establish prejudice when the ineffective assistance resulted in the entry of an in absentia removal order.

The full text of Sanchez Morales v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/18-70666.pdf

Eleventh Circuit Denies IAC Claim

The Eleventh Circuit has held that the filing of a bar complaint is not sufficient to demonstrate that prior counsel was notified of the allegations against him and given an opportunity to respond because not all bar complaints lead to a notice being sent to the attorney. In addition, the filing of a bar complaint is a separate requirement under Matter of Lozada from notice to the attorney, and permitting the bar complaint to serve as notice would eviscerate the separate requirement of a bar complaint.

The full text of Point Du Jour v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201815235.pdf

Third Circuit Confirms that Petitioner has Constitutional Right to Effective Counsel when Seeking Discretionary Relief

The Third Circuit has confirmed that a petitioner seeking cancellation of removal (a discretionary form of relief) still has a Fifth Amendment right to due process, including effective assistance of counsel. Thus, even an applicant for discretionary relief may assert an ineffective assistance of counsel claim, which is reviewable by the federal appellate court.

The full text of Calderon-Rojas v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192332p.pdf

Seventh Circuit Finds IAC for Failure to Advise about U Visa Eligibility

The Seventh Circuit has determined that an attorney provided ineffective assistance of counsel by failing to advise a client about his eligibility for a U visa. “The Board should not have faulted Alvarez-Espino for failing to provide his initial counsel with information significant to a potential U visa application. The Board’s reasoning is backwards: it is up to counsel, not the client, to ask the right questions and to solicit information pertinent to potential legal grounds to prevent removal. To place the burden on Alvarez-Espino as the Board did is to require him to have a nuanced understanding of American immigration law. That expectation defies reality.”

However, the court found that the petitioner was not prejudiced by the ineffective assistance, because he did eventually file his U visa, and the application will continue to process while he is outside of the country.

The full text of Alvarez-Espino v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-06/C:19-2289:J:Scudder:aut:T:fnOp:N:2483918:S:0

Eleventh Circuit Remands Asylum Claim Based on Ineffective Assistance of Counsel

The Eleventh Circuit has remanded an asylum claim, where the trial counsel acted deficiently by not (1) communicating with the petitioner about the substance of his case; (2) allowing the petitioner to review the evidence despite his repeated requests; and/or (3) adequately preparing for the merits hearing.

“The BIA reasoned that Gurian’s performance was not deficient because he reasonably relied on evidence that Sow was directly involved in gathering. But Sow was not involved in gathering evidence. Because Sow was detained, his involvement was limited to reviewing evidence that Ibrahim, Diallo, and Gurian collected on his behalf. Sow repeatedly sought to review and correct the mounting evidence. But his efforts were unsuccessful, as Gurian refused to allow Sow access. When Sow finally had the opportunity to review some of the evidence, he attempted to communicate his concerns to Gurian. But Gurian either did not listen, or could not understand Sow, no doubt due to the language barrier and lack of an interpreter. In fact, Gurian failed to obtain an interpreter for any of their meetings or phone conversations, a sanctionable offense. As a result, Sow was unable to communicate with his counsel about the substance of his case.”

“Gurian also failed to familiarize himself with the case. For example, during the merits hearing, Gurian was unaware of basic facts like how many asylum applications Sow had submitted and how many individuals named Djibril Barry were involved in the case. And because of Gurian’s failure to review the evidence, he submitted contradictory affidavits. The evidence was not only internally inconsistent—he submitted multiple, contradictory affidavits prepared by Djibril Barry—but it was also inconsistent with his own client’s account.”

“Because the IJ explicitly said that he would have granted Sow’s application but for the evidentiary inconsistencies, we have no trouble concluding that there is a reasonable probability that the outcome of Sow’s merits hearing would have been different with adequate assistance of counsel.”

The full text of Sow v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201715245.pdf

Sixth Circuit Addresses Prejudice Standard for IAC

The Sixth Circuit has emphasized that a petitioner need only show a reasonable probability that but-for his counsel’s substandard conduct, he would have received a different outcome in his removal proceedings. The Board of Immigration Appeals (Board) “required that Kada prove prejudice by showing that his claims necessarily would have succeeded or that he has actually been tortured rather than asking whether he demonstrated a reasonable probability that, but for his counsel’s ineffective assistance, he would have been entitled to remain in the United States. And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused its discretion by denying Kada’s motion to reopen.”

The full text of Kada v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0014p-06.pdf

First Circuit Applies Lozada Requirements to Direct Appeal

The First Circuit has determined that the procedural requirements for an ineffective assistance of counsel claim outlined in Matter of Lozada apply to a claim of ineffective assistance of counsel made on direct appeal, as well as to ineffective assistance of counsel claims made in motions to reopen.

The full text of Ferreira v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-2211P-01A.pdf