recognizing the bar complaint requirement of Lozada helps prevent collusion and helps police the immigration bar
How later courts described this case
- recognizing the bar complaint requirement of Lozada helps prevent collusion and helps police the immigration bar
- reviewing BIA’s denial of motion to reopen brought on ineffective- assistance grounds for failure to comply with Lozada’s procedural requirements
Written by the judges who cited it.
The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0008p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
MIGUEL ANGEL GUZMAN-TORRALVA,
│
Petitioner, │
> No. 21-3360
│
v. │
│
MERRICK B. GARLAND, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 206 405 524.
Decided and Filed: January 13, 2022
Before: GILMAN, KETHLEDGE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Cesar Martin Estela, Newark , New Jersey, for Petitioner. Joseph D. Hardy,
Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Miguel Angel Guzman-Torralva was ordered removed from
the country after he missed his hearing in immigration court. Now he seeks to reopen the
proceedings, claiming that the bad advice of his lawyer should excuse his absence. But Guzman-
Torralva hasn’t met the requirements for reopening.
Under Matter of Lozada, a motion to reopen based on ineffective assistance of counsel
must state whether the alien filed a formal bar complaint against his lawyer. 19 I. & N. Dec.
No. 21-3360 Guzman-Torralva v. Garland Page 2
637, 639 (BIA 1988). If no complaint was filed, the motion must explain why not. Id. Guzman-
Torralva didn’t file a bar complaint, so the question on appeal is whether his explanation is
adequate. Because we think Lozada requires more than a simple statement that the alien is “not
interested in filing a formal complaint,” we DENY the petition for review.
I.
Guzman-Torralva is a 35-year-old Mexican citizen who illegally entered the United
States at age 19. He now lives in New Jersey and has two children who are American citizens.
On October 24, 2018, Immigration and Customs Enforcement detained him in Ohio as an alien
present without being admitted or paroled. While in detention, he was served with a notice to
appear at a hearing scheduled for November 14 in Cleveland.
Francis Krajenke, an attorney in Cleveland, represented Guzman-Torralva at that hearing.
Guzman-Torralva admitted the factual allegations in the notice to appear and conceded
removability. He was then served with a notice to appear at a second hearing, scheduled for
November 28, and was released on $15,000 bond. The second hearing was rescheduled to
August 20, 2019. The updated notice, like the previous ones, warned Guzman-Torralva that
failing to appear could result in an order of removal being issued in his absence.
In May 2019, Guzman-Torralva hired a new attorney, Gustavo Fuentes. As it turned out,
this was a poor decision. On August 12, 2019, Fuentes filed an appearance with the immigration
court in Ohio, moved to substitute for Krajenke, and moved to change the venue of the August
20 hearing from Cleveland to Newark. But all three filings were rejected because Fuentes failed
to provide proof of service on Krajenke and to properly sign and paginate the filings. On August
20, neither Guzman-Torralva, Krajenke, nor Fuentes, appeared at the hearing in Cleveland.
Accordingly, Guzman-Torralva was ordered removed from the country in absentia.
Guzman-Torralva then hired a third attorney and moved to reopen his removal order on
the ground that he had received ineffective assistance of counsel. He argued that Fuentes had
fumbled the filings and had represented to him that he didn’t need to attend the August 20
hearing. The immigration court denied the motion to reopen because Guzman-Torralva hadn’t
complied with Lozada; specifically, he hadn’t filed a bar complaint against Fuentes nor
No. 21-3360 Guzman-Torralva v. Garland Page 3
adequately explained the failure to do so. The Board of Immigration Appeals denied his appeal
for the same reason. Now Guzman-Torralva asks this court to find that the Board abused its
discretion.
II.
An order of removal in absentia can be rescinded and the proceedings reopened if the
alien demonstrates “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Ineffective
assistance of counsel can be an exceptional circumstance, Cuevas-Nuno v. Barr, 969 F.3d 331,
336 (6th Cir. 2020), but only if the motion meets the requirements of Matter of Lozada, 19 I. &
N. Dec. at 639. Lozada requires (1) that the motion include an affidavit detailing counsel’s
failings, (2) that counsel be informed of the allegations, and (3) that a bar complaint be filed.
Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006). If an alien fails to file a bar complaint, he
must explain why. Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003). An alien who fails to
meet the Lozada requirements forfeits his ineffective-assistance-of-counsel claim. Pepaj v.
Mukasey, 509 F.3d 725, 727 (6th Cir. 2007).
We review the Board’s denial of a motion to reopen for an abuse of discretion.
Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015). We ask whether the Board denied the
motion “without a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis such as invidious discrimination against a particular race or group.”
Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (quoting Balani v. INS, 669 F.2d 1157,
1161 (6th Cir. 1982) (per curiam)). Here, the Board did none of those things.
The Board deemed Guzman-Torralva’s ineffective-assistance claim forfeited because he
failed to comply with the third Lozada requirement: He neither lodged a bar complaint against
Fuentes nor adequately explained his failure to do so. The Board explained that not just “any . . .
explanation, however insufficient” would satisfy Lozada. Instead, an acceptable reason would
address Lozada’s underlying concerns: deterring “collusion between the alien and his or her
lawyer” and enlisting the alien’s help to raise the ethical standards of the immigration bar.
The Board concluded that Guzman-Torralva’s rationale—that he was “not interested” in
pursuing a bar complaint—failed to serve those purposes. We see no abuse of discretion here.
No. 21-3360 Guzman-Torralva v. Garland Page 4
The third requirement puts “pressure on immigrants to report to the appropriate disciplinary
authorities” when the immigration bar has failed “to comply with minimum norms of
professional conduct.” Stroe v. INS, 256 F.3d 498, 504 (7th Cir. 2001). If any explanation
would do, that pressure would evaporate. Guzman-Torralva hasn’t given a reasonable
explanation for failing to file a bar complaint.
The Board also rejected Guzman-Torralva’s contention that he should be excused from
filing a bar complaint because Fuentes had “acknowledged and accepted responsibility” for his
shortcomings. The Board concluded that Fuentes’s admitted errors pertained only to the rules
for specific motions. He never admitted to what the Board saw as the key failing alleged in the
ineffective-assistance claim—that he had misinformed Guzman-Torralva regarding the need to
attend the August 20 hearing.
Guzman-Torralva takes issue with the Board’s characterization of his ineffectiveness
claim. He argues that had Fuentes properly filed the change-of-venue motion, he likely would
not have needed to appear at the August 20 hearing; and Fuentes admitted his shortcomings in
that regard. But that misunderstands the Board’s point that unless the change-of-venue motion
was granted, Guzman-Torralva was obliged to attend the hearing. See Immigration Court
Practice Manual, ch. 5.10(c) (“The filing of a motion to change venue does not excuse the
appearance of an alien or representative at any scheduled hearing.”). It was the failure to meet
that obligation that caused his removal in absentia. And none of Fuentes’s admissions, as they
appear in the affidavit, explain the failure to appear. In any event, the requirement to file a bar
complaint is not necessarily excused whenever counsel acknowledges his ineffectiveness. See
Omran v. Garland, 852 F. App’x 206, 209 (6th Cir. 2021) (per curiam). An admission of error
alone won’t prevent “collusion between counsel and the alien” or help “polic[e] the immigration
bar.” See In re Rivera-Claros, 21 I. & N. Dec. 599, 605 (BIA 1996).
Guzman-Torralva also argues that this is his “first bite at the apple,” which should relax
the requirements of Lozada. But he offers no authority to support this argument. And we have
applied Lozada to identical situations. See, e.g., Omran, 852 F. App’x at 207–09 (finding that
the alien did not meet the Lozada requirements after he attended the first hearing, admitted to the
No. 21-3360 Guzman-Torralva v. Garland Page 5
factual allegations, and then missed the next hearing because his counsel failed to keep him
apprised of the scheduled hearing date). The Board did not abuse its discretion.
***
We DENY the petition for review.