holding that the BIA’s “reasonable rules for the normal ineffective assistance claim” do not apply where facts demonstrating an attorney’s ineffectiveness are not “plain on the face of the administrative record”
How later courts described this case
- holding that the BIA’s “reasonable rules for the normal ineffective assistance claim” do not apply where facts demonstrating an attorney’s ineffectiveness are not “plain on the face of the administrative record”
- concluding “[t]he Board’s reasonable rules [in Lozada] for the normal ineffective assistance claim are not dispositive here” where the complete lack of attorney-client relationship was clear from the record of the hearing, such as when the IJ asked petitioner if counsel was her attorney and she responded “no” and then the IJ asked counsel if he had ever met the petitioner and he said he hadn’t
- holding that the Lozada rules for ineffective assistance of counsel are not dispositive when the hearing transcript clearly established that the petitioner was denied the right to choose counsel
- calling Matter of Lozada the BIA’s “own precedent” and concluding that the First Circuit’s affirmance of Matter of Lozada in Lozada v. INS, 857 F.2d 10 (1st Cir.1988), “did not touch upon any general procedural requirement necessary to bring an ineffective assistance of counsel claim”
Written by the judges who cited it.
The opinion
O’SCANNLAIN, Circuit Judge,
dissenting:
Because I do' not believe that Escobar has successfully made out a claim of ineffective assistance of counsel, I must respectfully dissent.
I
With the greatest respect, I disagree with the court’s interpretation of the statute governing legal representation in immigration proceedings. Section 1362 does not require that Escobar be represented *1336 by skilled counsel; indeed, it does not even suggest that she have counsel at all. 8 U.S.C. § 1362 . The statute merely says that, if she so desires, she has “the privilege of being represented.” To have the privilege of being represented is not to have a right to counsel that the state must enforce. Indeed, the statute explicitly declares that whatever counsel Escobar may retain, it shall be done so “at no expense to the Government.” Since the government is prohibited from paying for Escobar’s representation, then there is the obvious possibility that she may not be represented at all. How then is it possible for her cries of ineffective counsel to merit relief? No counsel is fine, poor counsel is not. The majority’s reading of this statute is baffling.
If Escobar does have a viable claim for ineffective assistance of counsel, it can lie only upon a showing that her counsel was “so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause.” Ramirez-Durazo v. INS, 794 F.2d 491, 500 (9th Cir.1986). The majority evidently believes that the confusion surrounding the opening of Escobar’s hearing was a constitutional violation though it cites no authority for this proposition. Of course, the majority reaches its conclusion without looking at all at the substance of Escobar’s hearing, which covered her arrival in the United States, the reasons that she departed Guatemala, her brother’s membership in a political party and subsequent assassination, the threats that she received, her life in Mexico before arriving in the United States, and the nature of her fear of returning to Guatemala. After guiding her through this broad-ranging discussion of her asylum claim, her putative counsel then successfully qualified Escobar for voluntary departure. Escobar had ample opportunity to be heard fully and fairly before the Immigration Judge. Her representation was certainly not stellar, but it was hardly a violation of the Constitution. I cannot agree with the majority’s conclusion that it was.
The majority has done more than simply conclude that Escobar’s representation violated the Constitution, however, it has presumed so. We have long acknowledged the rule that the petitioner must show prejudice arising from the conduct of her attorney to prevail on this claim. See, e.g., Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir.1986). Escobar has made no such argument. Unlike the majority, I decline to entertain arguments that the parties themselves choose not to plead.
Ill
I must also take issue with the majority’s treatment of what it describes as the “Board’s reasonable rules for the normal ineffective assistance of counsel claim.” Maj. op. at 3468. The Board has explicitly made clear its adherence to the procedures outlined in Matter of Lozada, 19 I. & N. Dec. 637 , 1988 WL 235454 (B.I.A.1988), aff'd, 857 F.2d 10 (1st Cir.1988), and our sister circuits have adopted the procedures it sets forth. See, e.g., Henry v. INS, 8 F.3d 426, 439 (7th Cir.1993); Esposito v. INS, 987 F.2d 108, 110-12 (2d Cir.1993). Lozada explicitly sets forth three requirements for supporting a claim of ineffective assistance of counsel: (1) an affidavit by the alien setting forth the agreement with counsel regarding the alien’s representation; (2) evidence that counsel was informed of the allegations and allowed to respond; and (3) an indication that a complaint has been lodged with the bar, or reasons explaining why not.
The majority simply recasts these rules to suit its fancy. No affidavit is needed, proclaims the majority in debuting its own rule, when the record is clear. And counsel need not be informed here because he was not really counsel. Then whose assistance, pray tell, does the majority believe was ineffective? The majority would have us believe that Escobar was represented for the purposes of establishing such representation was ineffective, but was not *1337 represented for the purposes of following the Board’s reasonable rules. Unfortunately, we do not enjoy the adversary’s luxury of reasoning in the alternative. Es-cobar made no attempt to comply with the Lozada requirements. We therefore cannot entertain her claims of ineffective assistance of counsel on this record.
rv
As to the merits of Escobar’s claim, I note that the majority has not even attempted to analyze them. Given the substantial evidence that exists in the record to support the Board’s decision, I would have no difficulty affirming the Board’s ruling, and I therefore respectfully dissent.