Interim Decision *3059 

MATTER OF LOZADA 

In Deportation Proceedings 

A-31025184 

Decided by Board April 18, 1988 

(1) A motion to reopen or reconsider based upon a claim of ineffective assistance of 

counsel requires (1) that the motion 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 representations 

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 allegatione 

leveled against him and be given an opportunity to respond, and (3) that the 

motion reflect whether a complaint has been filed with appropriate disciplinary 

authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. 

(2) An alien deportable under section 241(aX4) of the Immigration and Nationality 

Act, 8 U.S.C. § 1251(a)(4) (1982), is ineligible for voluntary departure unless he 

qualifies under the provisions of section 244(aX2) of the Act, 8 U.S.C. § 1254(aX2) 

(1982), which in the case of criminal offenders requires, inter alia, that the alien 

have been physically present in the United States and a person of good moral 

character for a continuous period of not less than 10 years following the date of 

his conviction_ Matter of P-, 6 I&N Dec. 788 (BIA 1955), followed. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX4) [8 U.S.C. §1251(aX4)J—Crime involving moral 

turpitude 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Mark L. Galvin, Esquire John M. Furlong 

Watt & Galvin General Attorney 

110 Chestnut Street 

Providence, Rhode Island 02903 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

On March 13, 1985, an immigration judge found the respondent 

deportable as charged on the basis of his concessions at the hearing 

under section 241(aX4) of the Immigration and Nationality Act, 8 

U.S.C. §125.1(a)(4) (1982), as an alien who was convicted of a crime 

involving moral turpitude committed within 5 years of entry and 

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was sentenced to confinement for 1 year or more, denied his applications for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) 

(1982), and for voluntary departure under section 244(e) of the Act, 

8 U.S.C. § 1254(e) (1982), and ordered him deported to the Dominican Republic. That same day, the respondent filed a Notice of 

Appeal (Form I-290A), indicating that he would be filing a separate 

written brief or statement in support of his appeal. No such brief 

or statement was forthcoming. On July 8, 1986, over a year after 

the immigration judge had entered his decision in the case, the 

Board summarily dismissed the appeal, noting that the respondent 

had in no meaningful manner identified the claimed error in the 

immigration judge's comprehensive decision of March 13, 1985. 

On January 20, 1987, the respondent, through present counsel,' 

filed a motion to reopen the proceedings, alleging (1) that prior 

counsel's failure to submit a written brief or statement explaining 

the basis for appeal constituted ineffective assistance of counsel 

and (2) that the immigration judge erred as a matter of law and 

discretion in deciding the case. The respondent also filed a petition 

for review of the Board's decision with the United States Court of 

Appeals for the First Circuit. The court has stayed action on. the 

petition for review pending the Board's resolution of the motion to 

reopen. The motion will be denied. 

Any right a respondent in deportation proceedings may have to 

counsel is grounded in the fifth amendment guarantee of due process. Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986); Paul 

v. INS, 521 F.2d 194 (5th Cir- 1975). Ineffective assistance of counsel 

in a deportation proceeding is a denial of due process only if the 

proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Ramirez-Durazo v. 

INS, 794 F.2d 491 (9th Cir. 1986); Lopez v. INS, 775 F.2d 1015 (9th 

Cir. 1985); see also Magallanes-Damian v. INS, supra (alien must 

show not merely ineffective assistance of counsel, but assistance 

which is so ineffective as to have impinged upon the fundamental 

fairness of the hearing in -violation of the fifth amendment due 

process clause). One must show, moreover, that he was prejudiced 

by his representative's performance. Mohsseni Behbahani v. INS, 

796 F.2d 249 (9th Cir. 1986). See generally Matter of Santos, 19 I&N 

Dec. 105 (BIA 1984). 

The Government maintains that the fact that prior counsel did 

not submit a brief does not in itself amount to deprivation of due 

process. We agree. 

The record before the Board does not contain counsel's Notice of Entry of Appearance as Attorney or Representative (Form G-28). 

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Failure to specify reasons for an appeal is grounds for summary 

dismissal under 8 C.F.R. § 3.1(d)(1-aXi) (1988). See generally Matter 

of Valencia, 19 I&N Dec. 354 (131A 1986). It would be anomalous to 

hold that the same action or, more accurately, inaction that gives 

rise to a summary dismissal of an appeal could, without more, 

serve as the basis of a motion to reopen. To allow such anomaly 

would permit an alien to circumvent at will the appeals process, 

with its regulatory time constraints, by the simple expedient of 

failing to properly pursue his appeal rights, then claiming ineffective assistance of counsel. Litigants are generally bound by the conduct of their attorneys, absent egregious circumstances. LeBlanc v. 

INS, 715 F.2d 685 (1st Cir. 1983). No such egregious circumstances 

have been established in this case. 

A motion based upon a claim of ineffective assistance of counsel 

should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts. In the case before us, that 

affidavit should include a statement that sets forth in detail the 

agreement that was entered into with former counsel with respect 

to the actions to be taken on appeal and what counsel did or did 

not represent to the respondent in this regard. Furthermore, before 

allegations of ineffective assistance of former counsel are presented 

to the Board, former counsel must be informed of the allegations 

and allowed the opportunity to respond. Any subsequent response 

from counsel, or report of counsel's failure or refusal to respond, 

should be submitted with the motion. Finally, if it is asserted that 

prior counsel's handling of the case involved a violation of ethical 

or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not. 

The high standard announced here is necessary if we are to have 

a basis for assessing the substantial number of claims of ineffective 

assistance of counsel that come before the Board. Where essential 

information is lacking, it is impossible to evaluate the substance of 

such claim. In the-iri-stant-case;-for-example, the-respondent has 

not alleged, let alone established, that former counsel ever agreed 

to prepare a brief on appeal or was engaged to undertake the task. 

Then, too, the potential for abuse is apparent where no mechanism 

exists for allowing former counsel, whose integrity or competence 

is being impugned, to present his version of events if he so chooses, 

thereby discouraging baseless allegations. The requirement that 

disciplinary authorities he notified of breaches of professional conduct not only serves to deter meritless claims of ineffective representation but also highlights the standards which should be expected of attorneys who represent persons in immigration proceedings, 

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the outcome of which may, and often does, have enormous significance for the person. 

The respondent's motion is wholly insufficient in light of the 

foregoing guidelines. We note, moreover, that no prejudice was 

shown to have resulted from prior counsel's failure to or decision 

not to file a brief in support of the appeal. The respondent received 

a full and fair hearing at which he was given every opportunity to 

present his case. We do not find, and the respondent does not 

allege, any inadequacy in the quality of prior counsel's representation at the hearing. The immigration judge considered and properly evaluated all the evidence presented, and his conclusions that 

the respondent did not merit a grant of section 212(c) relief as a 

matter of discretion and that he was ineligible for voluntary departure as a matter of law are supported by the record. 

The allegations of error ascribed to the immigration judge in the 

respondent's motion are unfounded. Contrary to present counsel's 

contention, it is clear from the transcript of hearing and the immigration judge's decision that the immigration judge was well aware 

that the respondent committed the offense of obtaining money 

under false pretenses several years prior to his conviction of that 

offense. And contrary to counsel's contention, the immigration 

judge correctly determined that the respondent was not eligible for 

a grant of voluntary departure. By the express terms of section 

244(e) of the Act, an alien deportable under section 241(a)(4) of the 

Act is ineligible for voluntary departure unless he qualifies under 

the provisions of section 244(a)(2) of the Act, which in the case of 

criminal offenders requires, inter alia, that the alien have been 

physically present in this country, and a person of good moral 

character, for a continuous period of not less than 10 years following his conviction. See generally Matter of 13—, 6 I&N Dec. 788 (BIA 

1955). The 10-year period is measured from the date of conviction, 

not the date the offense was committed, since it is the conviction, 

not the commission of the offense, that renders the alien deportable. Id. Since 10 years from the date of the conviction constituting 

the ground of deportation have not yet elapsed, the respondent is 

unable to demonstrate statutory eligibility for voluntary departure. 

The respondent has shown no basis for reopening or reconsideration.. His motion will be denied. 

ORDER: The motion is denied. 

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