Patel, Shehzad Q. v. Kiesler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3077
SHEHZAD QAMARUDDIN PATEL,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A95 925 155
____________
ARGUED JULY 10, 2007—DECIDED AUGUST 8, 2007
____________
Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.
CUDAHY, Circuit Judge. When Shehzad Patel failed
to appear at a hearing scheduled in his removal proceed-
ings, the immigration judge (“IJ”) ordered him removed
in absentia. Patel faults his original attorney, who, he
asserts, assured him that his absence would be excused.
Patel retained new counsel to file a motion to reopen on
his behalf; the motion was denied. On the eve of his
removal, he retained yet another attorney and filed a
second motion to reopen, asserting for the first time that
his previous attorneys were ineffective. The Board of
Immigration Appeals (“BIA”) found that Patel had not
complied with its procedural prerequisites for claiming
ineffective assistance of counsel, see In re Lozada, 19 I. &
2 No. 06-3077
N. Dec. 637 (BIA 1988), and denied the motion. Because
the BIA did not abuse its discretion in denying the second
motion to reopen, we deny the petition for review.
I. Background
Patel is a citizen of Pakistan who overstayed his visa
in 1996. The Department of Homeland Security initiated
removal proceedings against him in 2003, and over the
next twelve months, Patel attended a series of hearings
with his attorney, Marshall Hong, at which he conceded
removeability but sought to adjust his status based on an
approved application for labor certification. Before each
hearing Patel was sent a notice to appear warning him
that he could be removed from the United States if he
failed to attend. The notices stated that his attendance
would be excused only in “exceptional circumstances,” such
as the “death of an immediate relative.”
When Patel failed to attend his master calendar hear-
ing on October 28, 2004, the IJ ordered him removed in
absentia. Patel then received notice in December 2004
that he was scheduled to be removed in March 2005. Patel
retained two new attorneys, Susan Fortino-Brown and
Alexandra Baranyk, who in February 2005 filed with the
IJ a motion to reopen and rescind the in absentia removal
order. See 8 C.F.R. 1003.23(b)(4)(ii). They asserted that
Patel skipped the hearing in Chicago to visit a dying
friend in Dallas, Texas, and noted that the BIA has held
that a close family member’s illness may justify an alien’s
failure to attend a hearing. They argued that Patel
considered his friend to be a “second mother” and so his
absence should be excused. The IJ denied the motion, and
in September 2005 the BIA affirmed. On March 17, 2006,
Patel received notice that he was scheduled for removal
on April 11, 2006.
No. 06-3077 3
On April 10—the day before his scheduled removal—
Patel’s current attorney, Raymond Sanders, filed the
current motion to reopen with the BIA, arguing that all
three of Patel’s prior attorneys were ineffective. He
attached to the motion two complaints that he had filed on
April 6 with the Illinois Attorney Registration and Disci-
plinary Committee (“ARDC”) (technically, the ARDC calls
these “requests for investigation”); the first was directed
against Hong and the second against Fortino-Brown and
Baranyk. In the first complaint Patel accused Hong of
assuring him that the IJ would grant a continuance if he
skipped the hearing, and of failing to file a motion to
reopen as promised after the IJ ordered Patel’s removal. In
the second complaint Patel claimed that Fortino-Brown
and Baranyk were ineffective for failing to alert the BIA
to “Hong’s malfeasance.”
The BIA denied the second motion to reopen because it
found that Patel had not complied with the Lozada
procedural requirements for basing a motion to reopen on
allegations of ineffective assistance of counsel. Under
Lozada the motion must include (1) an affidavit from the
alien attesting to the relevant facts and setting forth a
detailed account of the actions counsel agreed to take on
his behalf, (2) evidence that former counsel was informed
of the allegations and given the opportunity to respond,
and (3) an explanation of whether the alien filed a com-
plaint with appropriate disciplinary authorities and if
not, why not. 19 I. & N. Dec. at 639. The BIA found that
Patel had met neither the first requirement—his affidavit
did not allow the BIA to “ascertain the scope of the work”
that his prior attorneys had agreed to do—nor the
second—there was no evidence that he notified the attor-
neys of his allegations.
Patel attached to his opening brief to this court Hong’s
response to his ARDC complaint. At no time did Patel give
that response to the BIA, so it is not part of the adminis-
4 No. 06-3077
trative record, and Patel’s inclusion of the response in his
brief is improper. Regardless, Hong’s response undercuts
Patel’s contention that he was the victim of deficient
performance by Hong. According to Hong, Patel said he
wanted to skip the October 2004 hearing to visit a
sick uncle, not a dying friend. By his account, Hong
repeatedly told Patel to attend the October 2004 hearing.
After the IJ entered the removal order, Hong told Patel
that he would file a motion to reopen only if Patel provided
a physician’s letter or death certificate showing that
his uncle had died and documents establishing a family
relationship. Patel failed to produce these documents, so
Hong told him in December 2004 that he would not file
a motion to reopen. Hong did not hear from Patel again
until March 20, 2006, three days after Patel received
notice of his imminent removal. On that day, Patel came
to Hong’s office and said that attorney Royal Berg had
informed him that he would be deported unless Hong
filed an affidavit with the BIA accepting responsibility
for Patel’s failure to attend the hearing. According to
Hong, Patel even admitted telling Berg that Hong had
advised him against skipping the hearing, and he offered
Hong money to sign the affidavit Patel already had
prepared. When Hong refused, Patel threatened to file
an ARDC complaint.
Patel also attached to his opening brief Fortino-Brown’s
response to his ARDC complaint. Once again, this docu-
ment was never given to the BIA, is not part of the admin-
istrative record, and is not properly included in Patel’s
brief. In her response, Fortino-Brown asserts that she
did not argue in her motion to reopen that Hong was
ineffective because after investigating she determined
that his conduct had been “entirely proper.”
No. 06-3077 5
II. Discussion
Patel argues that the BIA should have been more flexible
in applying Lozada, and asserts that his affidavits in
support of his ARDC complaints, which he attached to the
motion to reopen, fulfill the Lozada prerequisites. We
review the BIA’s denial of a motion to reopen for abuse
of discretion. Gomes v. Gonzales, 473 F.3d 746, 752 (7th
Cir. 2007).
Although aliens do not have a constitutional right to
effective counsel, we have endorsed the BIA’s decision to
grant relief where, in its discretion, the BIA finds that an
alien’s claim has been undercut by bad lawyering. See
Magala v. Gonzales, 434 F.3d 523, 525-26 (7th Cir. 2005);
Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001). The
BIA established the Lozada requirements to filter out
strategic claims of ineffective assistance, which often are
filed for the purposes of delay. See Lozada, 19 I. & N. Dec.
at 639; Stroe, 256 F.3d at 501. The Lozada requirements
reduce the potential for abuse by providing information
from which the BIA can assess whether an ineffective
assistance claim has enough substance to warrant the
time and resources necessary to resolve the claim on its
merits. See Lozada, 19 I. & N. Dec. at 639.
The BIA is free to deny motions to reopen for failure to
comply with Lozada as long as it does not act arbitrarily.
See Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir. 2006). We
have not expressly decided whether the BIA abuses its
discretion by requiring strict compliance with Lozada, but
several circuits have held that aliens only need to show
substantial compliance. See, e.g., Yang v. Gonzales, 478
F.3d 133, 142-43 (2d Cir. 2007); Habachy v. Gonzales, 471
F.3d 858, 864 (8th Cir. 2006); Lu v. Ashcroft, 259 F.3d 127,
133 (3d Cir. 2001). But because Patel did not fulfill two
of the three Lozada requirements, he has not shown
even substantial compliance. See Barry v. Gonzales, 445
6 No. 06-3077
F.3d 741, 746 (4th Cir. 2006) (“[A]n alien who fails to
satisfy any of the three Lozada requirements will rarely,
if ever, be in substantial compliance.”).
Lozada requires that an alien first notify former counsel
of the allegations and give counsel an opportunity to
respond, and then file a complaint with the appropriate
disciplinary authorities. 19 I. & N. Dec. at 639. This two-
step notification requirement is a particularly important
screening tool because in many cases it removes the
need for an evidentiary hearing and enables the BIA to
resolve ineffective-assistance claims on the basis of
documentary submissions. See In re Rivera-Claros, 21 I. &
N. Dec. 599, 604 (BIA 1996). By requiring the alien to
give counsel an opportunity to respond before the motion
to reopen is filed, Lozada discourages baseless allega-
tions and ensures that a “ ‘mechanism exists for allowing
former counsel, whose integrity or competence is being
impugned, to present his version of events if he so
chooses.’ ” Reyes v. Ashcroft, 358 F.3d 592, 599 (9th Cir.
2004) (quoting Lozada, 19 I.& N. Dec. at 639). If former
counsel admits to the alleged error, the inquiry ends and
the BIA may resolve the claim on the merits. See Fadiga
v. U.S. Att’y Gen., No. 05-4910, 2007 WL 1720048, at *11
(3d Cir. June 15, 2007). But if former counsel denies the
allegations, the alien must take the next step of either
filing a formal complaint with the appropriate dis-
ciplinary authority or explaining why such a complaint is
unwarranted. See Lozada, 19 I. & N. Dec. at 639. This
second step increases the BIA’s confidence in the claim’s
validity, reduces the need for an evidentiary hearing,
and helps the BIA to police the quality of the immigra-
tion bar. See Rivera-Claros, 21 I. & N. Dec. at 605.
Here, Patel skipped over the first notification step and
went straight to the second, filing ARDC complaints
against former counsel just days before he filed his second
No. 06-3077 7
motion to reopen. To explain this approach, Patel argues
at length that his imminent removal prevented him from
providing former counsel an opportunity to respond to
his claims. But this explanation is at best disingenuous.
Patel knew as early as January 2005 (when he retained
Fortino-Brown and Baranyk) that Hong had not filed a
motion to reopen, and he knew at least by September 2005
(when the BIA denied the second motion to reopen) that
Fortino-Brown and Baranyk did not raise an ineffective-
assistance claim. Yet he did nothing to pursue the matter
until March 2006, when he received another notice of his
imminent removal, and only then did he retain present
counsel to file an 11th-hour motion to reopen asserting
that all three of his former counsel failed him. Patel never
supplemented this motion with Hong’s and Fortino-
Brown’s responses during the intervening three months
before the BIA ruled. Had he done so, the BIA would
have learned that Fortino-Brown did not believe there
was any basis to claim that Hong was ineffective, and
that Patel allegedly attempted to bribe Hong to sign a
false affidavit saying he had erred and then threatened
him when he refused.
Having deprived the BIA of the opportunity to review the
substance of former counsel’s responses, Patel submits
them here to demonstrate that he fulfilled Lozada’s
notification requirements. But because he did not submit
them to the BIA, we cannot consider them as evidence
of notification. See Yadegar-Sargis v. INS, 297 F.3d 596,
599 n.1 (7th Cir. 2002). And Patel points to no evidence
properly before the BIA that contradicts its finding that
he did not fulfill Lozada’s notification requirements. Patel
asserts that the affidavits he attached to his ARDC
complaints and filed with his motion show “sufficient oral
notification,” but the affidavits do not state that he
expressed even dissatisfaction to his attorneys, let alone
that he informed them of his plan to file a motion to
8 No. 06-3077
reopen based on their allegedly inept performance. He
also relies on his present attorney’s representations to
the BIA that he informed former counsel of the allegations,
but as the BIA explained, such representations do not
constitute evidence. See Singh v. INS, 213 F.3d 1050, 1054
n.8 (9th Cir. 2000) (citing In re Ramirez-Sanchez, 17 I. &
N. Dec. 503, 506 (BIA 1980)). Given this lack of evidence,
the BIA did not abuse its discretion in concluding that
Patel failed to comply with Lozada’s notification require-
ment.
We could deny the petition based solely on Patel’s fail-
ure to meet one Lozada requirement, see Barry, 445 F.3d
at 746, but here the BIA correctly found that Patel also
failed to describe the scope of his representation agree-
ment with his former counsel. Patel argues that the
affidavits he submitted to the ARDC along with his
complaints are sufficient to meet this requirement, but as
the BIA noted, the affidavits do not reveal whether
Fortino-Brown or Baranyk (or both) was responsible for
his case, nor do they clarify whether Patel retained Hong
to file a motion to reopen. The BIA’s assertion that Patel
should have submitted the “representation agreements” is
puzzling, because Lozada and its progeny do not sug-
gest that an alien need submit anything more than a
detailed affidavit. Nevertheless, the crux of the BIA’s
finding is that Patel did not explain what actions his
prior counsel were hired to undertake—and the record
supports that finding. Indeed, it is unclear whether
Patel himself knows whether all three attorneys were
obligated to assist him—he states in his brief to this court
that “he suffered at the hands of two (possibly three)
attorneys.” Given this ambiguity, the BIA did not abuse its
discretion in finding that Patel did not meet the first
Lozada requirement.
No. 06-3077 9
III. Conclusion
Because the BIA did not abuse its discretion in conclud-
ing that Patel did not fulfill two of the Lozada require-
ments, we deny the petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-07