MELGAR , 28 I. & N. Dec. 169 ( 2020 )

Cite as 28 I&N Dec. 169 (BIA 2020) Interim Decision #4002
Matter of Jesus A. MELGAR, Respondent
Decided December 4, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Counsel’s acceptance of responsibility for error does not discharge the disciplinary
authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988),
particularly where the ineffective assistance allegation is rendered by the same attorney
against himself.
(2) A respondent seeking reopening on the basis of a claim of ineffective assistance of
counsel must show a reasonable probability that, but for counsel’s error, he would have
prevailed on his claim.
FOR RESPONDENT: Gage C. Herbst, Esquire, Midvale, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY: Saida Ulle, Assistant Chief
Counsel
BEFORE: Board Panel: GRANT, MULLANE, and RILEY, Appellate Immigration
Judges
MULLANE, Appellate Immigration Judge:
This case was last before us on September 3, 2019, when we dismissed
the respondent’s appeal from an Immigration Judge’s order of removal and
denied his motion to remand to apply for adjustment of status on the basis of
an approved visa petition filed by his United States citizen son. On
December 2, 2019, the respondent filed a timely motion to reopen based on
a claim of ineffective assistance of counsel. The Department of Homeland
Security (“DHS”) opposes the respondent’s motion. 1 The respondent’s
motion to reopen will be denied.
The respondent is a native and citizen of El Salvador. In his motion, he
asserts that his attorney provided ineffective assistance during the pendency
of his appeal. In particular, he contends that his attorney, who is still his
1
In its opposition, the DHS incorrectly states that the respondent’s motion is numerically
barred. An alien is entitled to file one motion to reopen after each final order of removal.
See 8 C.F.R. § 1003.2(c)(2) (2020). The motion to rescind the respondent previously filed
and had granted pertained to a different final order and does not bar the respondent from
filing a motion to reopen within 90 days of our September 3, 2019, decision, despite the
DHS’s assertion to the contrary.
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attorney, did not ask him for information regarding his rehabilitation or other
positive factors and therefore did not present sufficient evidence to establish
that he was entitled to a remand to apply for adjustment of status on the basis
of an approved visa petition filed by his United States citizen son. The
respondent maintains that he has satisfied the procedural requirements that
must be met before the Board will consider a motion to reopen based on
ineffective assistance of counsel. The respondent also contends that he has
established that he was prejudiced by his attorney’s errors.
The respondent’s ineffective assistance of counsel claim is different
because the claim is made against his current counsel, who represented him
before the Immigration Judge and on appeal to the Board, and continues to
represent him in the motion to reopen. In Matter of Lozada, 19 I&N Dec.
637 (BIA 1988), we stated that a claim for ineffective assistance of counsel
“should reflect whether a complaint has been filed with appropriate
disciplinary authorities regarding such representation, and if not, why not.”
Matter of Lozada did not hold that any such explanation, however
insufficient, would satisfy this requirement. Here respondent indicates that
a complaint has not been filed with disciplinary authorities “[b]ecause
counsel has taken responsibility for the error and the error is clear.” But the
obligation of the complaint cannot be so easily discharged, otherwise the
purpose of the requirement is rendered inconsequential. This is particularly
true in this context, where the ineffective assistance allegation is rendered by
the same attorney against himself. 2 The claim here, if permitted, renders
Matter of Lozada ineffectual.
The bar complaint requirement is designed to “highlight[] the standards
which should be expected of attorneys who represent persons in immigration
proceedings.” Id. at 639; see also Matter of Rivera, 21 I&N Dec. 599, 604
(BIA 1996). Requiring notification of disciplinary authorities is important
because this is the most effective way of informing disciplinary authorities
of allegations of potential violations of ethical or legal responsibilities.
While a single instance of malpractice may not be sufficient for disciplinary
authorities to act, the notification requirement allows disciplinary authorities
to assess whether there is a pattern of misconduct that should be addressed.
Further, the bar complaint “also serves to protect against collusion between
alien and counsel in which ‘ineffective’ assistance is tolerated, and goes
unchallenged by an alien before disciplinary authorities, because it results in
a benefit to the alien in that delay can be a desired end, in itself, in
immigration proceedings.” Matter of Rivera, 21 I&N Dec. at 604. There
may be valid reasons for not submitting a bar complaint—such as death of
2
The ethical propriety of an attorney making allegations of misconduct against himself
or herself is addressed in the ABA Model Rules of Professional Conduct, Rule 1.7.
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prior attorney or his disbarment—but respondent has not stated one here
except for a self-serving purpose, which we will not accept. For these
reasons, we conclude that respondent has not satisfied Matter of Lozada.
Even if we assume that the respondent’s attorney provided ineffective
assistance and that the respondent has satisfied the procedural requirements
of Matter of Lozada, the respondent has not met his burden of showing that
he was prejudiced by his attorney’s errors. See Matter of Lozada, 19 I&N
Dec. at 638. Specifically, the respondent has not met his burden of
establishing a reasonable probability that, but for his attorney’s mistakes, he
would have obtained a remand to apply for adjustment of status. See, e.g.,
Harmon v. Sharp, 936 F.3d 1044, 1059 (10th Cir. 2019) (noting, in context
of habeas proceeding, that, to show prejudice from ineffective assistance, a
petitioner must demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different)
(citations omitted). The “reasonable probability” standard is appropriate
because ineffective assistance of counsel only matters when there is
prejudice. See Matter of Lozada, 19 I&N Dec. at 640. Reopening such cases
is an extraordinary remedy that should not be invoked for attorney error that
is non-prejudicial to the decision. A respondent who does not prevail on his
claim may feel this was because his attorney was not good enough. Matter
of Lozada remedies are not for those cases where a better attorney might have
obtained a favorable result. Our concern is for respondents who have
suffered significant harm and can show a reasonable probability that they
would have prevailed on their claim. Thus a respondent does not have to
show he definitely would have prevailed, but he needs to make a clear
showing that the attorney erred in such a manner that he can show a
reasonable probability that he would have prevailed on the claim, if not for
the error.
The respondent has not shown a reasonable probability that he would
have obtained a remand to apply for adjustment of status if his attorney had
not made the alleged mistake. The respondent asserts that the additional
evidence he submitted with his current motion establishes that he is entitled
to a discretionary grant of adjustment of status. We disagree.
The additional information the respondent submitted regarding his
criminal record does not erase our concerns regarding the number of
encounters he has had with law enforcement and the extended period over
which these encounters have occurred. The information also does not dispel
our concern regarding his conviction for child abuse under section
76-5-109(3)(B) of the Utah Code Annotated. The respondent asserts that his
offense is not a crime involving moral turpitude, but we do not need to
resolve this issue to make a determination on the respondent’s motion. The
offense does qualify as a crime of child abuse for the purposes of
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section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(E)(i) (2018). See Matter of Velazquez-Herrera, 24 I&N Dec.
503, 512 (BIA 2008). 3 Accordingly, the conviction is a strong negative
factor weighing against a grant of adjustment.
Further, the respondent has not submitted statements from any of his
children, and the letters he submitted are not sufficient to outweigh his long
history of arrests and his convictions for child abuse, assault, and disorderly
conduct. See, e.g., Matter of Coelho, 20 I&N Dec. 464, 472–73 (BIA 1992)
(indicating that a moving party must establish that he or she warrants relief
as a matter of discretion). The respondent’s new evidence therefore is not
sufficient to meet his burden of showing a reasonable probability that he
would have obtained a remand to pursue adjustment if his attorney had
presented this evidence with his motion to remand. The respondent
accordingly has not established that he was prejudiced by any error of his
attorney, and we deny his motion to reopen based on a claim of ineffective
assistance of counsel.
ORDER: The respondent’s motion to reopen is denied.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).
3
The respondent was convicted under section 76-5-109(3)(B) of the Utah Code
Annotated. His offense therefore had as an element a mens rea of recklessness and is
distinguishable from the offense discussed in Ibarra v. Holder, 736 F.3d 903 (10th Cir.
2013).
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