In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3077

SHEHZAD QAMARUDDIN PATEL,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A95 925 155

____________

ARGUED JULY 10, 2007—DECIDED AUGUST 8, 2007

____________

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge. When Shehzad Patel failed

to appear at a hearing scheduled in his removal proceedings, the immigration judge (“IJ”) ordered him removed

in absentia. Patel faults his original attorney, who, he

asserts, assured him that his absence would be excused.

Patel retained new counsel to file a motion to reopen on

his behalf; the motion was denied. On the eve of his

removal, he retained yet another attorney and filed a

second motion to reopen, asserting for the first time that

his previous attorneys were ineffective. The Board of

Immigration Appeals (“BIA”) found that Patel had not

complied with its procedural prerequisites for claiming

ineffective assistance of counsel, see In re Lozada, 19 I. &
2 No. 06-3077

N. Dec. 637 (BIA 1988), and denied the motion. Because

the BIA did not abuse its discretion in denying the second

motion to reopen, we deny the petition for review.

I. Background

Patel is a citizen of Pakistan who overstayed his visa

in 1996. The Department of Homeland Security initiated

removal proceedings against him in 2003, and over the

next twelve months, Patel attended a series of hearings

with his attorney, Marshall Hong, at which he conceded

removeability but sought to adjust his status based on an

approved application for labor certification. Before each

hearing Patel was sent a notice to appear warning him

that he could be removed from the United States if he

failed to attend. The notices stated that his attendance

would be excused only in “exceptional circumstances,” such

as the “death of an immediate relative.”

When Patel failed to attend his master calendar hearing on October 28, 2004, the IJ ordered him removed in

absentia. Patel then received notice in December 2004

that he was scheduled to be removed in March 2005. Patel

retained two new attorneys, Susan Fortino-Brown and

Alexandra Baranyk, who in February 2005 filed with the

IJ a motion to reopen and rescind the in absentia removal

order. See 8 C.F.R. 1003.23(b)(4)(ii). They asserted that

Patel skipped the hearing in Chicago to visit a dying

friend in Dallas, Texas, and noted that the BIA has held

that a close family member’s illness may justify an alien’s

failure to attend a hearing. They argued that Patel

considered his friend to be a “second mother” and so his

absence should be excused. The IJ denied the motion, and

in September 2005 the BIA affirmed. On March 17, 2006,

Patel received notice that he was scheduled for removal

on April 11, 2006.
No. 06-3077 3

On April 10—the day before his scheduled removal—

Patel’s current attorney, Raymond Sanders, filed the

current motion to reopen with the BIA, arguing that all

three of Patel’s prior attorneys were ineffective. He

attached to the motion two complaints that he had filed on

April 6 with the Illinois Attorney Registration and Disciplinary Committee (“ARDC”) (technically, the ARDC calls

these “requests for investigation”); the first was directed

against Hong and the second against Fortino-Brown and

Baranyk. In the first complaint Patel accused Hong of

assuring him that the IJ would grant a continuance if he

skipped the hearing, and of failing to file a motion to

reopen as promised after the IJ ordered Patel’s removal. In

the second complaint Patel claimed that Fortino-Brown

and Baranyk were ineffective for failing to alert the BIA

to “Hong’s malfeasance.”

The BIA denied the second motion to reopen because it

found that Patel had not complied with the Lozada

procedural requirements for basing a motion to reopen on

allegations of ineffective assistance of counsel. Under

Lozada the motion must include (1) an affidavit from the

alien attesting to the relevant facts and setting forth a

detailed account of the actions counsel agreed to take on

his behalf, (2) evidence that former counsel was informed

of the allegations and given the opportunity to respond,

and (3) an explanation of whether the alien filed a complaint with appropriate disciplinary authorities and if

not, why not. 19 I. & N. Dec. at 639. The BIA found that

Patel had met neither the first requirement—his affidavit

did not allow the BIA to “ascertain the scope of the work”

that his prior attorneys had agreed to do—nor the

second—there was no evidence that he notified the attorneys of his allegations.

Patel attached to his opening brief to this court Hong’s

response to his ARDC complaint. At no time did Patel give

that response to the BIA, so it is not part of the adminis-
4 No. 06-3077

trative record, and Patel’s inclusion of the response in his

brief is improper. Regardless, Hong’s response undercuts

Patel’s contention that he was the victim of deficient

performance by Hong. According to Hong, Patel said he

wanted to skip the October 2004 hearing to visit a

sick uncle, not a dying friend. By his account, Hong

repeatedly told Patel to attend the October 2004 hearing.

After the IJ entered the removal order, Hong told Patel

that he would file a motion to reopen only if Patel provided

a physician’s letter or death certificate showing that

his uncle had died and documents establishing a family

relationship. Patel failed to produce these documents, so

Hong told him in December 2004 that he would not file

a motion to reopen. Hong did not hear from Patel again

until March 20, 2006, three days after Patel received

notice of his imminent removal. On that day, Patel came

to Hong’s office and said that attorney Royal Berg had

informed him that he would be deported unless Hong

filed an affidavit with the BIA accepting responsibility

for Patel’s failure to attend the hearing. According to

Hong, Patel even admitted telling Berg that Hong had

advised him against skipping the hearing, and he offered

Hong money to sign the affidavit Patel already had

prepared. When Hong refused, Patel threatened to file

an ARDC complaint.

Patel also attached to his opening brief Fortino-Brown’s

response to his ARDC complaint. Once again, this document was never given to the BIA, is not part of the administrative record, and is not properly included in Patel’s

brief. In her response, Fortino-Brown asserts that she

did not argue in her motion to reopen that Hong was

ineffective because after investigating she determined

that his conduct had been “entirely proper.”
No. 06-3077 5

II. Discussion

Patel argues that the BIA should have been more flexible

in applying Lozada, and asserts that his affidavits in

support of his ARDC complaints, which he attached to the

motion to reopen, fulfill the Lozada prerequisites. We

review the BIA’s denial of a motion to reopen for abuse

of discretion. Gomes v. Gonzales, 473 F.3d 746, 752 (7th

Cir. 2007).

Although aliens do not have a constitutional right to

effective counsel, we have endorsed the BIA’s decision to

grant relief where, in its discretion, the BIA finds that an

alien’s claim has been undercut by bad lawyering. See

Magala v. Gonzales, 434 F.3d 523, 525-26 (7th Cir. 2005);

Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001). The

BIA established the Lozada requirements to filter out

strategic claims of ineffective assistance, which often are

filed for the purposes of delay. See Lozada, 19 I. & N. Dec.

at 639; Stroe, 256 F.3d at 501. The Lozada requirements

reduce the potential for abuse by providing information

from which the BIA can assess whether an ineffective

assistance claim has enough substance to warrant the

time and resources necessary to resolve the claim on its

merits. See Lozada, 19 I. & N. Dec. at 639.

The BIA is free to deny motions to reopen for failure to

comply with Lozada as long as it does not act arbitrarily.

See Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir. 2006). We

have not expressly decided whether the BIA abuses its

discretion by requiring strict compliance with Lozada, but

several circuits have held that aliens only need to show

substantial compliance. See, e.g., Yang v. Gonzales, 478

F.3d 133, 142-43 (2d Cir. 2007); Habachy v. Gonzales, 471

F.3d 858, 864 (8th Cir. 2006); Lu v. Ashcroft, 259 F.3d 127,

133 (3d Cir. 2001). But because Patel did not fulfill two

of the three Lozada requirements, he has not shown

even substantial compliance. See Barry v. Gonzales, 445
6 No. 06-3077

F.3d 741, 746 (4th Cir. 2006) (“[A]n alien who fails to

satisfy any of the three Lozada requirements will rarely,

if ever, be in substantial compliance.”).

Lozada requires that an alien first notify former counsel

of the allegations and give counsel an opportunity to

respond, and then file a complaint with the appropriate

disciplinary authorities. 19 I. & N. Dec. at 639. This twostep notification requirement is a particularly important

screening tool because in many cases it removes the

need for an evidentiary hearing and enables the BIA to

resolve ineffective-assistance claims on the basis of

documentary submissions. See In re Rivera-Claros, 21 I. &

N. Dec. 599, 604 (BIA 1996). By requiring the alien to

give counsel an opportunity to respond before the motion

to reopen is filed, Lozada discourages baseless allegations and ensures that a “ ‘mechanism exists for allowing

former counsel, whose integrity or competence is being

impugned, to present his version of events if he so

chooses.’ ” Reyes v. Ashcroft, 358 F.3d 592, 599 (9th Cir.

2004) (quoting Lozada, 19 I.& N. Dec. at 639). If former

counsel admits to the alleged error, the inquiry ends and

the BIA may resolve the claim on the merits. See Fadiga

v. U.S. Att’y Gen., No. 05-4910, 2007 WL 1720048, at *11

(3d Cir. June 15, 2007). But if former counsel denies the

allegations, the alien must take the next step of either

filing a formal complaint with the appropriate disciplinary authority or explaining why such a complaint is

unwarranted. See Lozada, 19 I. & N. Dec. at 639. This

second step increases the BIA’s confidence in the claim’s

validity, reduces the need for an evidentiary hearing,

and helps the BIA to police the quality of the immigration bar. See Rivera-Claros, 21 I. & N. Dec. at 605.

Here, Patel skipped over the first notification step and

went straight to the second, filing ARDC complaints

against former counsel just days before he filed his second
No. 06-3077 7

motion to reopen. To explain this approach, Patel argues

at length that his imminent removal prevented him from

providing former counsel an opportunity to respond to

his claims. But this explanation is at best disingenuous.

Patel knew as early as January 2005 (when he retained

Fortino-Brown and Baranyk) that Hong had not filed a

motion to reopen, and he knew at least by September 2005

(when the BIA denied the second motion to reopen) that

Fortino-Brown and Baranyk did not raise an ineffectiveassistance claim. Yet he did nothing to pursue the matter

until March 2006, when he received another notice of his

imminent removal, and only then did he retain present

counsel to file an 11th-hour motion to reopen asserting

that all three of his former counsel failed him. Patel never

supplemented this motion with Hong’s and FortinoBrown’s responses during the intervening three months

before the BIA ruled. Had he done so, the BIA would

have learned that Fortino-Brown did not believe there

was any basis to claim that Hong was ineffective, and

that Patel allegedly attempted to bribe Hong to sign a

false affidavit saying he had erred and then threatened

him when he refused.

Having deprived the BIA of the opportunity to review the

substance of former counsel’s responses, Patel submits

them here to demonstrate that he fulfilled Lozada’s

notification requirements. But because he did not submit

them to the BIA, we cannot consider them as evidence

of notification. See Yadegar-Sargis v. INS, 297 F.3d 596,

599 n.1 (7th Cir. 2002). And Patel points to no evidence

properly before the BIA that contradicts its finding that

he did not fulfill Lozada’s notification requirements. Patel

asserts that the affidavits he attached to his ARDC

complaints and filed with his motion show “sufficient oral

notification,” but the affidavits do not state that he

expressed even dissatisfaction to his attorneys, let alone

that he informed them of his plan to file a motion to
8 No. 06-3077

reopen based on their allegedly inept performance. He

also relies on his present attorney’s representations to

the BIA that he informed former counsel of the allegations,

but as the BIA explained, such representations do not

constitute evidence. See Singh v. INS, 213 F.3d 1050, 1054

n.8 (9th Cir. 2000) (citing In re Ramirez-Sanchez, 17 I. &

N. Dec. 503, 506 (BIA 1980)). Given this lack of evidence,

the BIA did not abuse its discretion in concluding that

Patel failed to comply with Lozada’s notification requirement.

We could deny the petition based solely on Patel’s failure to meet one Lozada requirement, see Barry, 445 F.3d

at 746, but here the BIA correctly found that Patel also

failed to describe the scope of his representation agreement with his former counsel. Patel argues that the

affidavits he submitted to the ARDC along with his

complaints are sufficient to meet this requirement, but as

the BIA noted, the affidavits do not reveal whether

Fortino-Brown or Baranyk (or both) was responsible for

his case, nor do they clarify whether Patel retained Hong

to file a motion to reopen. The BIA’s assertion that Patel

should have submitted the “representation agreements” is

puzzling, because Lozada and its progeny do not suggest that an alien need submit anything more than a

detailed affidavit. Nevertheless, the crux of the BIA’s

finding is that Patel did not explain what actions his

prior counsel were hired to undertake—and the record

supports that finding. Indeed, it is unclear whether

Patel himself knows whether all three attorneys were

obligated to assist him—he states in his brief to this court

that “he suffered at the hands of two (possibly three)

attorneys.” Given this ambiguity, the BIA did not abuse its

discretion in finding that Patel did not meet the first

Lozada requirement.
No. 06-3077 9

III. Conclusion

Because the BIA did not abuse its discretion in concluding that Patel did not fulfill two of the Lozada requirements, we deny the petition for review.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-8-07