RIVERA

Interim Decision #3296

Interim Decision #3296

In re Cecilia RIVERA-Claros, Respondent

File A73 089 446 - Arlington

Decided October 3, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien seeking to reopen in absentia proceedings based on her unsuccessful communica-

tions with her attorney did not establish exceptional circumstances pursuant to section

242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3)(A) (1994),

where she failed to satisfy all of the requirements for an ineffective assistance of counsel claim

set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988).

FOR RESPONDENT: Douglas Schoppert, Esquire, Falls Church, Virginia

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: David M. Dixon, Chief

Appellate Counsel

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, FILPPU, COLE, and MATHON, Board Members. Dissenting Opinion:

SCHMIDT, Chairman, joined by VILLAGELIU, ROSENBERG, and GUENDELSBERGER,

Board Members.

FILPPU, Board Member:

The respondent has timely appealed an Immigration Judge’s decision

denying the respondent’s motion to reopen her deportation proceedings,

which had been conducted in absentia. The appeal will be dismissed.

I. PROCEDURAL HISTORY

On October 6, 1994, the respondent appeared at a deportation hearing in

Los Fresnos, Texas. At that hearing, the respondent, through Texas counsel,

conceded deportability and filed an application for asylum. The respondent

also requested a change of venue to Arlington, Virginia, which the Immigra-

tion Judge granted. The motion for a change of venue states that it was

accompanied by a notice of appearance (Form EOIR-28) and identified an

attorney licensed by and practicing in a jurisdiction in the metropolitan

Washington, D.C., area who would be assuming representation of the

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respondent (“former counsel”). The respondent’s Texas counsel was also

permitted to withdraw at that time.

On October 13, 1994, a notice of a January 10, 1995, hearing was sent by

the Immigration Court in Arlington, Virginia, to former counsel. Neither the

respondent nor her former counsel appeared at the January 10, 1995, hearing,

and, accordingly, the Immigration Judge issued a decision in absentia.

The respondent, through new and current counsel, filed a motion to reopen

on January 18, 1995. That motion was denied by an Immigration Judge dur-

ing a hearing on April 11, 1995. A written decision of the April 11, 1995, rul-

ing was issued, with some modifications, on June 19, 1995.

The respondent timely appealed the Immigration Judge’s April 11, 1995,

decision. On October 11, 1995, the respondent, after having received a “bag

and baggage” notice of deportation for October 13, 1995, requested an emer-

gency stay of deportation from this Board pending a decision on the instant

appeal. In an October 12, 1995, order, this Board granted the respondent’s

emergency stay request. In Matter of Rivera, 21 I&N Dec. 232 (BIA 1996),

this Board vacated the October 12, 1995, order and held that the automatic

stay of deportation associated with the filing of a motion to reopen an in

absentia hearing pursuant to section 242B(c)(3) of the Immigration and

Nationality Act, 8 U.S.C. § 1252b(c)(3) (1994), continues during the pen-

dency of an appeal from the denial of such a motion.

II. UNDERLYING APPEAL

We now consider the respondent’s underlying appeal. A deportation order

issued following proceedings conducted in absentia pursuant to section

242B(c) of the Act may be rescinded only upon a motion to reopen which

demonstrates that the alien failed to appear because of exceptional circum-

stances, because she did not receive proper notice of the hearing, or because

she was in Federal or State custody and failed to appear through no fault of

her own. Section 242B(c)(3) of the Act. See Matter of Gonzalez-Lopez, 20

I&N Dec. 644 (BIA 1993). The term “exceptional circumstances” refers to

exceptional circumstances beyond the control of the alien, such as serious ill-

ness of the alien or death of an immediate relative, but not including less

compelling circumstances. Section 242B(f)(2) of the Act.

The respondent, through new counsel, contended in her motion to reopen

that she had never received notice of the January 10, 1995, hearing. She

stated that, although former counsel reportedly sent her a letter on November

3, 1994, informing her of the January 10, 1995, hearing, the respondent never

received that letter and was thus unaware of the January 10, 1995, hearing.

The motion to reopen was accompanied by a declaration from the respon-

dent. In this declaration, the respondent recounts her numerous unsuccessful

attempts to speak with former counsel after she arrived in Maryland from

Texas. She states that she believes she did not receive her former counsel’s

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letter due to either postal error or an error of inadvertence by former counsel.

The respondent states that she does not intend to file a complaint against for-

mer counsel.

An affidavit from former counsel also accompanied the respondent’s

motion to reopen. In the affidavit, former counsel states that a letter was sent

to the respondent advising her of the hearing date and also informing her that

the attorney would not be able to represent her on January 10, 1995, due to a

heavy caseload and a shortage of time. We note that it does not appear from

the record that former counsel informed the Immigration Court in Arlington,

Virginia, of an intention to formally withdraw as the respondent’s counsel.

Indeed, the Immigration Judge, in her June 19, 1995, written decision, states

that “[t]here has been no excuse shown for the absence of counsel of record

from the hearing.”

Former counsel further states in the affidavit that it was not until January

12, 1995, that it was discovered in a conversation with the respondent that she

had never received the letter that former counsel had sent to her on November

3, 1994. The attorney states that, at that time, the respondent confirmed that

the address to which former counsel had mailed the November 3, 1994, letter

was the respondent’s correct address.

The respondent further argued in her motion to reopen that, because of her

inability to communicate with her former counsel and because of her

nonreceipt of the November 3, 1994, letter, her failure to appear at the Janu-

ary 10, 1995, hearing was due to exceptional circumstances beyond her

control.

On appeal, the respondent argues that the Immigration Judge erred in con-

cluding that the respondent had been properly served with the notice of hear-

ing because there was no showing that personal service on either the

respondent or her counsel was not practicable. The respondent also contends

that the Immigration Judge erred in finding that the failure of the respon-

dent’s former counsel to adequately communicate the date of the hearing to

her did not constitute exceptional circumstances beyond her control. The

respondent argues that, given the evidence showing her interest in having her

case prosecuted, it is unreasonable to conclude that she would ignore a letter

advising her of a hearing on the matter.

III. CONCLUSIONS

A. Proper Notice

We first address the respondent’s contention that she had not been prop-

erly served with the notice of hearing because there was no showing that per-

sonal service on either the respondent or her counsel was not practicable.

This claim is raised only in the attachment to the respondent’s notice of

appeal and is not further developed in her brief.

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According to 8 C.F.R. § 292.5(a) (1996), whenever a person in immigra-

tion proceedings is required to be given notice, such notice will be given to

the attorney or representative of record, if the person is represented. See sec-

tions 242B(a)(2), (c)(1) of the Act. The record reflects that notice of the Janu-

ary 10, 1995, hearing was sent to the respondent’s former counsel by certified

mail, return receipt requested, on October 13, 1994. A return receipt, signed

by someone at former counsel’s address, is also included in the record. For-

mer counsel has also attested to receiving notice of the January 10, 1995,

hearing. Thus, service of the notice of hearing on former counsel was service

in accordance with sections 242B(a)(2) and (c)(1) of the Act and with 8

C.F.R. § 292.5(a). See Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995) (here-

inafter Grijalva 1995).

Further, we note that in Grijalva 1995, supra, this Board held that, pursu-

ant to section 242B(a)(2)(A) of the Act, neither the Executive Office for

Immigration Review nor the Immigration Court is required to show that “in

person” service was not “practicable” before permitting service of the notice

of hearing by certified mail. Id. at 36. We therefore disagree with the respon-

dent’s contention concerning service of the notice of the hearing.

We will not now, however, consider whether there may be circumstances

where counsel’s performance is so inadequate that notice to the attorney

under 8 C.F.R. § 292.5(a) should not be deemed to be notice to the alien. This

question has not been raised by the respondent nor briefed by the parties.

B. Exceptional Circumstances and Lozada

We next address the respondent’s contention that her alleged inability to

communicate with her former counsel combined with her alleged nonreceipt

of the November 3, 1994, letter constituted exceptional circumstances

beyond her control.

This Board, in another decision bearing the name Matter of Grijalva, 21

I&N Dec. 472 (BIA 1996) (hereinafter Grijalva 1996), recently held that an

alien alleging ineffective assistance of counsel who satisfied the require-

ments set out by this Board in Matter of Lozada, 19 I&N Dec. 637 (BIA

1988), aff’d, 857 F.2d 10 (1st Cir. 1988), had established exceptional circum-

stances for purposes of section 242B(c)(3) of the Act. In Grijalva 1996, the

respondent alleged that, on the morning of the scheduled hearing date, an

employee of his former counsel called the respondent and erroneously

informed him that a continuance had been granted and that he should not

appear at the Immigration Court. The Board found “the level of incompe-

tence involved in this case establishes that the respondent’s absence was the

result of exceptional circumstances within the meaning of section 242B(f)(2)

of the Act.” Id. at 4.

In Matter of Lozada, supra, we held that claims alleging ineffective assis-

tance of counsel require

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(1) that the motion to reopen be supported by an affidavit of the allegedly

aggrieved respondent setting forth in detail the agreement that was entered

into with counsel with respect to the actions to be taken and what representa-

tions counsel did or did not make to the respondent in this regard;

(2) that counsel whose integrity or competence is being impugned be

informed of the allegations leveled against him or her and be given an oppor-

tunity to respond and;

(3) that the motion reflect whether a complaint has been filed with appro-

priate disciplinary authorities with respect to any violation of counsel’s ethi-

cal or legal responsibilities, and if not, why not.

We determined that the above three requirements for allegations of inef-

fective assistance of counsel are necessary in order to have a basis for assess-

ing the substantial number of such claims which come before the Board.1

The United States Court of Appeals for the Fourth Circuit, the circuit

within which this case arises, disagreed with our application of the Lozada

“bar complaint” requirement in the context of a case involving an adolescent

alien where the court found no reason to disbelieve the claim of attorney

incompetence and did not see how the filing of such a complaint would aid in

the disposition of the immigration aspects of the case. Figeroa v. United

States INS, 886 F.2d 76 (4th Cir. 1989). It is not clear whether the Fourth Cir-

cuit fully understood the basis for our Lozada requirements, as Lozada itself

is not mentioned in Figeroa. Moreover, the respondent’s case is distinguish-

able, as explained later.

In the instant case, we note that the respondent appears to have fulfilled the

second of the Lozada requirements. While it is questionable whether she has

met the first requirement, we find that the respondent has not complied with

the third requirement, that of filing a complaint against former counsel or

adequately explaining why a complaint against former counsel has not been

filed with the appropriate disciplinary authorities. In the declaration accom-

panying her motion to reopen, the respondent asserts that she does not wish to

file a complaint against former counsel. The respondent, in her declaration,

states that “if any error was made in this case it was a postal error or an error

of inadvertence by [former counsel].” As explained below, we find this to be

an inadequate explanation under Lozada.

The governing regulations allow any attorney who is a member in good

standing of the bar of the highest court of any State, possession, territory,

Commonwealth, or the District of Columbia to practice before Immigration

Judges and the Board. See 8 C.F.R. §§ 1.1(f), 292.1(a)(1) (1996). Regulations

do exist for the disciplining of attorneys appearing before Immigration

1 We note that in Grijalva 1996, supra, this Board stated that an alien is not required to show

prejudice in order to rescind an order of deportation entered following a hearing conducted in

absentia under section 242B(c)(3) of the Act. See Grijalva 1996, supra, at 3 n.2. The statute

does not require a showing of prejudice to obtain relief from an in absentia order. Thus, the

“prejudice” component of our Lozada rule has not been extended to this context.

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Judges. See 8 C.F.R. § 292.3 (1996). But those regulations, in their current

form, are not intended to be a comprehensive set of rules governing the prac-

tice of law in the immigration field and, indeed, are not as broad as the Amer-

ican Bar Association’s Model Rules of Professional Conduct (1995), for

example. Moreover, there is no expeditious way for this Board to deal with

the more routine attorney-related problems that periodically arise. Instead,

for attorneys who may practice before us simply by virtue of their admission

into a state bar or the bar of another recognized jurisdiction, we rely on the

disciplinary process of the relevant jurisdiction’s bar as the first, and ordi-

narily the fastest, means of identifying and correcting possible misconduct.

In this way, this Board’s interest in having a method of monitoring those

attorneys who practice before us is addressed. However, this process, as set

out in Matter of Lozada, supra, also necessitates the cooperation of the party

alleging ineffective assistance of counsel. As we stated in Matter of Lozada,

this process not only serves to deter meritless claims of ineffective assistance

of counsel but also highlights the standards which should be expected of

attorneys who represent aliens in immigration proceedings. Id. at 639. It also

serves to protect against collusion between alien and counsel in which “inef-

fective” assistance is tolerated, and goes unchallenged by an alien before dis-

ciplinary authorities, because it results in a benefit to the alien in that delay

can be a desired end, in itself, in immigration proceedings. See INS v.

Rios-Pineda, 471 U.S. 444 (1985); Reid v. INS, 766 F.2d 113 (3d Cir. 1985);

Cheng Fan Kwok v. INS, 381 F.2d 542 (3d Cir. 1967), aff’d, 392 U.S. 206

(1968).

When adjudicating an ineffective assistance of counsel claim, this Board

relies to a great extent on the documents submitted in support of that claim,

such as affidavits and declarations. An evidentiary hearing before an Immi-

gration Judge focusing on the prior attorney-client relationship and on the

specifics of prior counsel’s behavior cannot always be avoided. Neverthe-

less, such hearings are an added burden on both the parties and the Immigra-

tion Court, and they rarely assist in resolving the merits of the substantive

immigration law issues presented by a particular case. Consequently, we pre-

fer to make final determinations of ineffective assistance of counsel claims

on the documentary submissions alone, where possible.

We also recognize that affidavits prepared by litigants may not always

present a full picture of the circumstances bearing on issues raised by the affi-

davits. In addition, the Immigration and Naturalization Service will fre-

quently lack independent information regarding the details of an

attorney-client relationship, which can involve privileged communications.

In this context, the Lozada requirements substantially reduce the pressure for

routinely requiring a hearing to test the reliability of the affidavits. The filing

of a complaint with the attorney’s licensing body serves to increase our confi-

dence in the strength of the claim being made. By greatly lessening the

chances of collusion and of meritless claims being brought forward for the

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purposes of delay, the Lozada requirements more readily enable us to act on

such motions without routinely requiring evidentiary hearings on matters,

such as counsel’s performance, that are collateral to the merits of substantive

immigration law determinations.

In the context of the instant case, we recognize that the existence of prob-

lems in communication between an attorney and a client, as a question of past

fact, is not dependent on the filing of a complaint with a state bar or a bar from

another recognized jurisdiction. It is thus possible to resolve the ineffective

assistance of counsel claim either on the documentary submissions or after an

evidentiary hearing, without requiring the filing of a bar complaint. How-

ever, the same is true of any ineffective assistance of counsel claim, as the

Fourth Circuit’s decision in Figeroa indicates. Figeroa v. United States INS,

supra, at 79. Thus, while this Board, under various circumstances, accepts

showings of ineffective assistance of counsel as due process violations that

permit aliens to obtain new hearings, in no situation will the filing of a bar

complaint change the past events that are alleged to amount to ineffective

assistance of counsel.

The requirement of a bar complaint, however, serves important purposes

in such cases. First, it increases our confidence in the validity of the particular

claim. Second, it reduces the likelihood that an evidentiary hearing will be

needed. Third, it serves our long-term interests in policing the immigration

bar. And, fourth the requirement of filing a complaint, or adequately explain-

ing why such a complaint has not been filed, protects against possible collu-

sion between counsel and the alien client. Moreover, we consider the filing of

such a complaint, or reasonably explaining why such was not done, to be a

relatively small inconvenience for an alien who asks that he or she be given a

new hearing in a system that is already stretched in terms of its adjudicatory

resources. We also note that our Lozada rule can no longer be considered

new. It has been in existence for over 8 years, well before the events giving

rise to this case.2

2 The dissent does not argue that we should overrule Lozada. Nor does it contend that an

ineffective assistance of counsel claim must be assessed outside the statutory structure of

section 242B in cases where the claim relates to an in absentia order. Instead, it would find

ineffective assistance of counsel without the need for a bar complaint. It thus seems that the

dissent would make the filing of such a complaint contingent on the degree of the evidence of

collusion and effectiveness of former counsel that is presented in each case.

The application of Lozada on the selective, special-case basis implied by the dissent is

undesirable.Such an approach would provide little guidance to the public as to when the filing

of a bar complaint was deemed critical to the success of a motion based on alleged ineffective

assistance of counsel. This uncertainty would extend to our adjudication process and would

likely increase the number of submissions required in those cases where the filing of the bar

complaint was ultimately deemed critical. Moreover, clear evidence of collusion is almost by

definition difficult to come by. The requirements in Lozada in part arise from the view that an

alien’s unexplained reluctance to pursue disciplinary action, while simultaneously arguing that

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C. The Application of Lozada to This Case

The respondent, perhaps aware of our requirement in Matter of Lozada,

supra, states in her declaration that she does not intend to file a complaint

against her former counsel. The respondent states that “if any error was made

in this case it was a postal error or an error of inadvertence by [former coun-

sel].” However, we consider the respondent’s explanation for not filing a

complaint against former counsel to be inadequate and to minimize signifi-

cantly the questions raised by the attorney’s apparent conduct.

For example, former counsel states in the attached affidavit that a signed

but blank notice of appearance, Form EOIR-28, was sent to Texas counsel.

This at least leaves open the possibility that her former counsel was unaware

of the respondent’s actual identity at the time the change of venue motion was

filed in Texas. That motion for a change of venue, however, states in para-

graph 4, that “Respondent has retained the services of [former counsel] . . . ,

whose E[OIR]-28 is being filed, to represent her . . . .”3 The record raises

questions as to the nature of the attorney-client relationship involved here.

Most importantly, the respondent’s former counsel, based on the evidence

of record, apparently failed (1) to ensure that the respondent received notice

of her hearing; (2) to confirm whether the respondent had been able to secure

new counsel and, if not, to move for a continuance to enable the respondent to

obtain new counsel; (3) to move the Immigration Court for withdrawal; and

4) to show up at the hearing absent permission to withdraw.

The manner in which former counsel assumed and executed representa-

tion of the respondent seems to reflect on the seriousness of the attorney’s

commitment to represent the respondent. The record before us is equally con-

sistent with there being some impropriety committed upon the Immigration

Court, with or without the respondent’s knowledge, as it is with a host of

other scenarios, including innocent but perhaps negligent behavior by a busy

attorney.

The record also raises some questions as to the respondent’s understand-

ing of what may have been transpiring. We note that former counsel’s affida-

vit states that, along with the November 3, 1994, letter, the respondent was

counsel’s representation was so inadequate as to warrant reopening of immigration

proceedings, in itself raises questions regarding the issue of collusion.

In addition, the dissent's approach would also eliminate the collateral benefits of Lozada in

terms of correcting inappropriate or unethical professional conduct, except in those cases where

we could discern likely collusion or other grounds for denial. But if collusion could be detected

from the record in a particular case, it is unclear how the filing of a bar complaint would help an

alien obtain reopening in any event. In cases of obvious collusion, moreover, the likelihood of a

bar complaint actually being filed would appear to be reduced, if for no other reason than

continued efforts at concealment of the collusion.

3 We note that this notice of appearance, Form EOIR-28, is not actually contained in the

record. It is not clear whether the Form EOIR-28 appearance form has been misplaced or

simply was not attached to the change of venue motion.

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sent a list of attorneys who might be able to represent her. We also note that

the respondent, in paragraph 6 of her declaration, refers to having received a

list of attorneys. However, it is unclear when or how the respondent, who

alleges she did not receive her former counsel’s November 3, 1994, letter,

received the list of attorneys. It is cases such as this, where we are unable to

discern clearly what has occurred and the culpability, if any, that stems from

such conduct, which reinforce the need for the process we set out in Matter of

Lozada, supra.4

It may well be true that an inability to communicate with former counsel

combined with nonreceipt of the November 3, 1994, letter might constitute

exceptional circumstances beyond the respondent’s control. However,

absent the respondent’s full compliance with the Lozada requirements, the

degree of confidence we have in her individual claim is lessened to the point

where we decline to grant the motion. The unanswered questions regarding

the attorney-client relationship and the respondent’s understanding of her

responsibilities distinguish this from Figeroa v. United States INS, supra.

In addition, absent compliance with Lozada, the value of the bar com-

plaint as a tool evidencing a lack of collusion and preventing future episodes

of this sort is completely eliminated, and it is unclear whether the Fourth Cir-

cuit understood the multiple purposes behind our Lozada rule at the time of

its decision in Figeroa.

We thus conclude that the respondent, who has failed to satisfy all of the

requirements for an ineffective assistance of counsel claim set out in Matter

of Lozada, supra, has not satisfactorily established a case for reopening under

the exceptional circumstances provision of section 242B(c)(3)(A) of the

Act.5

4 We do not share the dissent’s view that there is “no hint of collusion” in this case. We do

not see evidence from which a finding of collusion can be made. But there are inadequately

answered questions, especially in relation to the role former counsel was expected to play in the

overall handling of the respondent’s case. Circumstances that remain unexplained are the

respondent’s receipt of the list of other attorneys, the exact nature of the “attorney-client”

relationship that existed between the respondent and her former counsel, and the respondent’s

understanding, as the result of her relationship with Texas counsel, of what actually could be

expected of former counsel in relation to the representation of the respondent in the Arlington,

Virginia, Immigration Court. Moreover, none of these concerns are in any way dispelled by the

respondent’s seeming tolerance of former counsel’s conduct, which is reflected in the

inadequate explanation for the failure to file a complaint with disciplinary authorities. Former

counsel’s conduct, as characterized by the respondent, cannot simply be explained away by

postal error or “inadvertence.”

5 We note that the respondent’s motion met the 180-day time limit for “exceptional

circumstances” motions imposed by section 242B(c)(3)(A) of the Act. We need not now

address whether the respondent may satisfy the remainder of the statutory requirements by

virtue of information submitted outside the 180-day period. In other words, our ruling does not

foreclose the respondent’s filing of a supplemental motion that satisfies all the requirements of

Matter of Lozada, supra. However, we caution that any such motion filed by the respondent

must comply with the requirements for motions filed at the Board. See 61 Fed. Reg. 18,900-10

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Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

DISSENTING OPINION: Paul W. Schmidt, Chairman, in which

Gustavo D. Villageliu, Lory D. Rosenberg, and John W.

Guendelsberger, Board Members, joined.

I respectfully dissent.

The moving papers establish that the respondent made reasonable efforts

to contact her former attorney, including at least 10 phone calls and an unsuc-

cessful office visit. Her former attorney acknowledges in an affidavit that

counsel was aware that the respondent was trying to reach her by phone and

in person concerning the Immigration Court date.

Notwithstanding this knowledge, the respondent’s former counsel used

regular mail, as opposed to registered mail, a messenger, or courier service,

to send the respondent’s hearing notice. Further, former counsel did not per-

sonally follow up by telephone to ensure that the critically important notice

of hearing date was received by the respondent.

In Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996), we recently found

that ineffective assistance of counsel constituted an “exceptional circum-

stance” justifying reopening of deportation proceedings under section 242B

of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994). The pri-

mary difference between this case and Grijalva is that the respondent in

Grijalva filed a complaint with the state bar association in accordance with

our decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d,

857 F.2d 10 (1st Cir. 1988).

However, I do not need a Lozada motion or a state bar complaint to find

that ineffective assistance has occurred here. The respondent’s affidavit and

that of former counsel are sufficient to establish that former counsel’s duties

to the respondent were not properly discharged. There is no hint of collusion

between former counsel and the respondent. Under these circumstances, I see

no basis for making the filing of a state bar complaint the determinative factor

as to whether exceptional circumstances beyond the control of the alien have

been established.

I agree with my colleagues in the majority that, in many instances, the

Lozada requirements serve to expedite and facilitate the process for adjudi-

cating claims of ineffective assistance of counsel. However, in this particular

case, I do not find that the filing of a state bar complaint will contribute mate-

rially to resolving either the factual or the legal issues in the respondent’s

case.

(1996) (to be codified at 8 C.F.R. pts. 1, 3, 103, 208, 212, 242, 246). We also express no view

on whether such a supplemental submission may succeed as either an “exceptional

circumstances” claim under section 242B(c)(3)(A) or a “lack of notice” claim under section

242B(c)(3)(B).

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I had read Lozada as setting forth a practical rule that did not eliminate our

overall discretion to grant a motion to reopen when the circumstances and

fairness required it. I now understand the majority to state that Lozada is a

prerequisite in every case raising ineffective assistance of counsel as an issue.

The majority’s absolute rule goes too far.

I also share the majority’s concern with substandard practice by attorneys

appearing before the Executive Office for Immigration Review (“EOIR”). I

regret that the current regulations, set forth at 8 C.F.R. § 292.3 (1996), have

proved largely ineffective to deal with lapses in professionalism. I also trust

that the disciplinary regulations will be revised in the future to overcome

those shortcomings. Nevertheless, I question the wisdom and the fairness of

making the respondent in this case bear the major brunt of enforcing profes-

sional practice standards before EOIR. See Figeroa v. United States INS, 886

F.2d 76, 79 (4th Cir. 1989) (questioning the requirement that an alien file a

bar complaint to raise ineffective assistance of counsel before this Board).

In summary, the respondent has satisfactorily established that her former

counsel failed to give her notice of the time and place of her hearing, notwith-

standing the respondent’s persistent attempts to get such information from

former counsel. The breakdown in attorney-client communications, alluded

to by the majority, was on the side of the attorney. Under these circum-

stances, the respondent’s failure to appear was due to exceptional circum-

stances beyond her control. Cf. Matter of Grijalva, supra. Therefore, I

respectfully dissent from the decision to dismiss the respondent’s appeal.

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