## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 06-3077

S HEHZAD Q AMARUDDIN P ATEL , Petitioner

, v.

A LBERTO R. G ONZALES , Respondent.

____________ Petition for Review of an Order of the Board of Immigration Appeals. No. A95 925 155

____________ A RGUED J ULY10, 2007—D ECIDED A UGUST 8, 2007

____________

Before B AUER , C UDAHY , and R IPPLE , Circuit Judges

. C UDAHY , Circuit Judge . When Shehzad Patel failedto 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 hi s 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, asse rting 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 dis cretion in denying the second motion to reopen, we denythe 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 ad just 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 “exc eptional 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 absentiaremoval 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. Th e 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, Ra ymond Sanders, filed the current motion to reopen with the BIA, arguing that all three of Patel’s prior atto rneys were ineffective. He attached to the motion two co mplaints that he had filed on April 6 with the Illinois Atto rney Registration and Disciplinary Committee (“ARDC”) (technically, the ARDC calls these “requests for investigat ion”); 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 bas ing a motion to reopen on allegations of ineffective a ssistance of counsel. Under Lozadathe motion must include (1) an affidavit from the alien attesting to the releva nt 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 firs t requirement—his affidavit did not allow the BIA to “ascer tain the scope of the work” that his prior attorneys ha d agreed to do—nor thesecond—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 incl usion 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 deat h 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 th at 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 complain t. 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 in vestigating 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 Lozadaprerequisites. 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 en dorsed 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 Lozadarequirements 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 Lozadarequirements 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 Lozadarequirements, he has not shown even substantial compliance. See Barry v. Gonzales , 4456 No. 06-3077

F.3d 741, 746 (4th Cir. 2006) (“[A]n alien who fails to satisfy any of the three Lozadarequirements will rarely, if ever, be in substantial compliance.”).

Lozadarequires that an alien first notify former counsel of the allegations and give counsel an opportunity to respond, and then file a co mplaint 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-assistan ce 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, Lozadadiscourages baseless allegations and ensures that a “ ‘me chanism exists for allowing former counsel, whose integrit y 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 ta ke the next step of eitherfiling 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 secondNo. 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) thatFortino-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 th e 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 ha d 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 affida vits do not state that he expressed even dissatisfaction to his attorneys, let alone that he informed them of his plan to file a motion to8 No. 06-3077

reopen based on their allegedly inept performance. He also relies on his present a ttorney’s representations to the BIA that he informed former counsel of the allegations, but as the BIA explained, su ch 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 Lozadarequirement, see Barry , 445 F.3d at 746, but here the BIA correctly found that Patel alsofailed 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 m eet this requirement, but as the BIA noted, the affidavits do not reveal whether Fortino-Brown or Baranyk (o r 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 Lozadaand its progeny do not suggest that an alien need submit anything more than a detailed affidavit. Neverthe less, 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 whethe r all three attorneys were obligated to assist him—he states in his brief to this court that “he suffered at the ha nds of two (possibly three) attorneys.” Given this ambiguity, the BIA did not abuse its discretion in finding that Patel did not meet the first Lozadarequirement.No. 06-3077 9

III. Conclusion

Because the BIA did not abuse its discretion in concluding that Patel did not fulfill two of the Lozadarequirements, 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