FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA EDITH MORALES APOLINAR, 

Petitioner,

No. 04-73484

v.  Agency No.

MICHAEL B. MUKASEY, Attorney A75-706-903

General,

Respondent. 

MARIA EDITH MORALES APOLINAR, 

Petitioner, No. 04-75248

v. Agency No. 

M A75-706-903 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 16, 2007—Pasadena, California

Filed January 24, 2008

Before: Harry Pregerson, Michael Daly Hawkins, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Pregerson

1207
COUNSEL

Maria Janossy, Glendale, California, for the petitioner.

Michael B. Mukasey, Attorney General; David M. McConnell, Deputy Director; Kurt B. Larson, Trial Attorney, U.S.

Department of Justice, Washington, D.C., for the respondent.

OPINION

PREGERSON, Circuit Judge: 

Maria Edith Morales Apolinar (“Morales”) petitions for

review of two decisions of the Board of Immigration Appeals

(“BIA”): one dismissing her appeal of an Immigration Judge’s

(“IJ”) denial of cancellation of removal and rejecting her

claim that James Robert Valinoti (“Valinoti”)1 provided ineffective assistance (No. 04-73484) and another denying her

motion to reconsider its earlier decision (No. 04-75248). We

have jurisdiction under 8 U.S.C. § 1252. We grant relief and

remand for a merits hearing on Morales’s cancellation of

removal application. 

BACKGROUND

Morales is a twenty-eight year-old native and citizen of

Mexico. She testified that she first entered the United States

1Notably, this is not the first time that we have addressed an ineffective

assistance of counsel claim involving Valinoti and his law firm. See, e.g.,

Baltazar-Alcazar v. INS, 386 F.3d 940 (9th Cir. 2004); Escobar-Grijalva

v. INS, 206 F.3d 1331 (9th Cir. 2000); Hernadez Lucena v. Gonzales, 215

F. App’x 627 (9th Cir. 2006). 

1210 MORALES APOLINAR v. MUKASEY
in December 1986 without inspection and has not left since.

She is the single mother of two native-born United States citizen children, Luis Angel Luna Morales, age eleven, and Karla

Luna Morales, age nine. Neither child can read or write Spanish. Morales testified that her youngest child, Karla, has

asthma and has undergone surgery for a neck tumor. She also

testified that Karla takes medication four times a day and

receives monthly medical visits. Morales and her children live

with extended family members, including Morales’s mother

and grandparents. Morales began working as a babysitter in

1996 and as a self-employed housekeeper in 1999. 

In 2000, Morales filed an application for asylum, which

was denied. On July 17, 2000, she was charged with being an

alien present in the United States without admission or parole,

in violation of the Immigration and Nationality Act, Section

212(a)(6)(A)(i). On October 12, 2000, Morales was represented by then-attorney James Robert Valinoti at a master calendar hearing. She conceded the charge of removability, and

the IJ found Morales removable to Mexico. Morales filed a

cancellation of removal application on February 6, 2001. The

IJ conducted an individual merits hearing on December 19,

2002. 

At the conclusion of the hearing, the IJ denied Morales’s

application for cancellation of removal, after finding that

Morales failed to establish two of the four requirements: (1)

continuous physical presence for at least ten years preceding

the application and (2) “exceptional and extremely unusual

hardship” to a qualifying relative. See 8 U.S.C. § 1229b(b)

(1)(A), (D).2

On appeal to the BIA, through newly retained counsel,

Maria Janossy, Morales argued that her former attorney,

2The IJ concluded that Morales met the remaining requirements, namely

that she was of good moral character and had not been convicted of any

disqualifying criminal offenses. See 8 U.S.C. § 1229b(b)(1)(B)-(C). 

MORALES APOLINAR v. MUKASEY 1211
Valinoti, provided ineffective assistance. She alleged Valinoti

failed to proffer available witnesses and documents that

would have established her continuous physical presence and

failed to develop her hardship case. The BIA denied her petition on the ground that she failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637

(BIA 1988), and then subsequently denied her motion to

reconsider. Morales timely appealed. 

STANDARD OF REVIEW

“We review de novo claims of due process violations in

deportation proceedings.” Cano-Merida v. INS, 311 F.3d 960,

964 (9th Cir. 2002) (quoting Perez-Lastor v. INS, 208 F.3d

773, 777 (9th Cir. 2000)). We review the BIA’s denial of a

motion to reconsider for abuse of discretion, although “de

novo review applies to the BIA’s determination of purely

legal questions.” Id. (quoting Mejia v. Ashcroft, 298 F.3d 873,

876 (9th Cir. 2002)).

DISCUSSION

I. PROCEDURAL REQUIREMENTS FOR AN

INEFFECTIVE ASSISTANCE CLAIM 

The BIA abused its discretion when it dismissed Morales’s

ineffective assistance claim for failure to comply with the procedural requirements of Lozada. 

[1] Under Lozada, the BIA generally requires a petitioner

claiming ineffective assistance of counsel to: (1) submit an

affidavit demonstrating and explaining her agreement with

prior counsel regarding legal representation; (2) inform prior

counsel of the accusations and allow counsel an opportunity

to respond; and (3) indicate whether a complaint has been

filed with the appropriate disciplinary authorities. Id. at 639.

[2] In practice, we have been flexible in our application of

the Lozada requirements. The Lozada factors are not rigidly

1212 MORALES APOLINAR v. MUKASEY
applied, especially where their purpose is fully served by

other means. See, e.g., Castillo-Perez v. INS, 212 F.3d 518,

525-26 (9th Cir. 2000) (explaining that the Lozada requirements “are not sacrosanct”); see also Ray v. Gonzales, 439

F.3d 582, 588 (9th Cir. 2006) (observing that we have “not

hesitated to address ineffective assistance of counsel claims,

even when an alien fails to comply strictly with Lozada”).

Indeed, “we seldom reject ineffective assistance of counsel

claims solely on the basis of Lozada deficiencies.” Fong Yang

Lo v. Ashcroft, 341 F.3d 934, 937 n.4 (9th Cir. 2003). 

We conclude that Morales substantially complied with the

Lozada requirements. The attorney-client arrangement

between Morales and Valinoti is evident from Valinoti’s onthe-record appearances on her behalf.3

 Additionally, Morales

submitted a sworn declaration explaining the conduct that

substantiated her ineffective assistance claim. The declaration

stated that: (1) Valinoti relied on Estela Rodriguez, a nonattorney immigration consultant, or notario, to perform the

legal work; (2) Valinoti failed to submit available documents

that would have supported her showing of continuous physical presence; (3) Valinoti failed to call witnesses who were

able and willing to testify to her continuous physical presence; and (4) Valinoti failed to establish Morales’s mother as

a qualifying relative for hardship analysis purposes. Although

Morales did not report Valinoti’s misconduct to a disciplinary

authority or confront Valinoti directly, as required under

Lozada, we conclude that such action would have been futile

under the circumstances. 

Just twelve days after Morales’s hearing before the IJ,

Valinoti was suspended from the practice of law in the state

3Under 8 C.F.R. § 1003.17(a), an attorney must execute, file, and serve

a Notice of Entry of Appearance on Form EOIR-28 before representing a

client in any proceeding before an IJ. An attorney may withdraw from representation or effectuate substitutions of attorney only upon motion to the

IJ. 8 C.F.R. § 1003.17(b). 

MORALES APOLINAR v. MUKASEY 1213
of California for five years. In a 100-page decision, the California State Bar Court found that Valoniti had committed

eighteen counts of misconduct in nine cases and five additional counts of uncharged but proven misconduct. In re

Valinoti, No. 96-O-08095, 2002 WL 31907316 (Cal. Bar Ct.

Dec. 31, 2002).4 Valinoti subsequently resigned from the

State Bar of California. 

After the State Bar Court issued its decision, the Executive

Office for Immigration Review petitioned for Valinoti’s

immediate suspension from practice before the BIA and

Immigration Courts. The IJs were aware of Valinoti’s underhanded practices for quite some time. Valinoti, 2002 WL

31907316, at *24 (explaining that Valinoti was “well-known”

among IJs for repeatedly being late for hearings, or missing

them altogether).5 The Department of Homeland Security

4During the disciplinary hearings, the State Bar Court determined that

Valinoti handled more than 2,720 immigration cases during a two-year

period in a manner that was “reckless and involved gross carelessness,” id.

at *14, while earning more than $250,000 annually, id. at *9. The court

found that Valinoti failed to competently represent clients, accepted more

cases than he could handle, routinely “placed his interests above those of

his clients” by permitting non-lawyers to perform legal work, and “consistently demonstrated a profound lack of understanding of his duty of fidelity to his clients.” Id. at *14 (quoting hearing judge’s findings of fact). The

court also censured Valinoti for maintaining an excessive caseload with

inadequate support staff, id. at *15-*17, moving his offices repeatedly

without notifying his clients, id. at *17-*20, and failing to keep adequate

records, id. at *20-*24. 

5

In November 1996, an exasperated IJ admonished an attorney from

Valinoti’s law office: “Mr. Valinoti knows he’s overbooked. Most attorneys have maybe one or two hearings set. He has anywhere from six to

ten set each morning or afternoon, and he’s all over this courthouse. The

result is his clients are not represented in court.” Id. The IJ went on to

characterize the pleading in the case before him as “one of the shoddiest”

that he “had seen in a long time” and noted that “every case [Valinoti] has

is a problem.” Id. at *41. In that case, Valinoti’s client, a sixty-eight yearold widow, was removed in absentia to Syria after her requests for relief

were deemed abandoned due to Valinoti’s ineffective assistance. Id. at

1214 MORALES APOLINAR v. MUKASEY
likewise petitioned for Valinoti’s suspension from practice

before that agency. Valinoti was required to file a timely

answer to these allegations of misconduct, see 8 C.F.R.

§ 1003.105(c)(1), but he failed to do so. In re Valinoti, No.

D2000-034, at 1 (BIA Oct. 8, 2003), available at http://

www.usdoj.gov/eoir/profcond/FinalOrders/ValinottiJamesRFnlOrd.pdf. His failure to respond constituted an admission of

the allegations, see 8 C.F.R. § 1003.105(d)(1), and Valinoti

was consequently suspended from practicing before the BIA,

the Immigration Courts, and the Department of Homeland

Security. See In re Valinoti, No. D2000-34, at 2. 

[3] We conclude that, in cases where a petitioner’s attorney

has been suspended after failing to respond to prior charges

of ineffective assistance, it would be futile for the petitioner

to inform counsel of the accusations or file a complaint, and

Morales’s failure to do so therefore does not bar her ineffective assistance of counsel claim. 

This decision comports with the policy goals of Lozada,

which are “to provide a framework within which to assess the

bona fides of the substantial number of ineffective assistance

claims asserted, to discourage baseless allegations and meritless claims, and to hold attorneys to appropriate standards of

performance.” Fong Lang Yo, 341 F.3d at 937. Sadly, “the

adjudication of [immigration] cases at the administrative level

has fallen below the minimum standards of legal justice.” See

*39-*42. That same month, another IJ complained that Valinoti’s conduct

was “taxing the system,” id. at *32, before ordering his client removed in

absentia to Mexico because of Valinoti’s failure to abide by court-ordered

deadlines, id. at *46. Again, in July 1997, while denying a request for a

continuance, another IJ recognized that Valinoti had shown “complete

irresponsibility in terms of what has been going on. This is not the first

time that this has happened. This has happened before, within the last

month, with Mr. Valinoti. I do not know what his problem is.” Id. at *45.

Valinoti’s associate agreed with the IJ that Valinoti’s conduct was

“shameful.” Id.

MORALES APOLINAR v. MUKASEY 1215
Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005)

(Posner, J.). All too often, vulnerable immigrants are preyed

upon by unlicensed notarios and unscrupulous appearance

attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation. Despite widespread awareness of these abhorrent practices,6

 the lamentable

exploitation of the immigrant population continues, and the

BIA’s insistence upon strict compliance with Lozada in cases

where such compliance would clearly be futile only worsens

the plight of the immigrant. 

[4] Since it would have been futile for Morales to confront

Valinoti and file a complaint, the BIA abused its discretion in

dismissing Morales’s claim of ineffective assistance of counsel for failure to strictly comply with Lozada. 

II. PREJUDICIAL IMPACT OF VALINOTI’S

DEFICIENT PERFORMANCE 

[5] As an alternative ground for dismissing Morales’s ineffective assistance of counsel claim, the BIA erroneously concluded that Morales’s “former attorney’s advice does not

appear to have biased her claim.” In the context of an ineffective assistance of counsel claim, prejudice is established when

“the performance of counsel was so inadequate that it may

have affected the outcome of the proceedings.” Munoz v. Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003) (citation omitted)

(emphasis added). Morales “need not explain exactly what

evidence [she] would have presented in support of [her] application.” Cano-Merida, 311 F.3d at 965 (internal quotation

marks omitted). Nor must Morales demonstrate conclusively

6

See, e.g., Mendoza-Mazariegos v. Mukasey, ___ F.3d ___, 2007 WL

4259510, at *10 n.4 (9th Cir. Dec. 6, 2007) (“The immigration system in

this country is plagued with ‘notarios’ who prey on uneducated immigrants.”); H.B. 2659: Notorious Notaries — How Arizona is Curbing

Notario Fraud in the Immigration Community, 32 ARIZ. ST. L.J. 287, 292

(2000); Unlawful Practice Hits Vulnerable Immigrants, CAL. B.J. 1, 7

(Nov. 2001). 

1216 MORALES APOLINAR v. MUKASEY
that she would win on her claims absent Valinoti’s deficient

performance. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th

Cir. 2004). She need only show “plausible grounds for relief.”

Id. We conclude that Valinoti’s deficient performance prejudiced Morales’s ability to meet the requirements for cancellation of removal. 

[6] Valinoti’s deficient performance “prevented [Morales]

from reasonably presenting her case” and so prejudiced her

ability to establish continuous physical presence in the United

States from June 1990 to the date of her application. See 8

U.S.C. § 1229b(b)(1)(A); Iturribarria v. INS, 321 F.3d 889,

899 (9th Cir. 2003). Valinoti failed to introduce available documentary evidence, including school records dating from

1988 to 1995, that would have supported Morales’s showing

of physical presence.7 The IJ determined that Morales failed

to meet the physical presence requirement largely due to her

failure to present school records. “If she was attending school

in this country,” the IJ reasoned, “she could have obtained

documents that would clearly indicate she was here, attending

school.” 

Likewise, Valinoti failed to elicit testimony in support of

Morales’s physical presence. This evidence included testimony from Morales’s relatives, some of whom were lawful

residents, that Morales had lived in the United States with her

family since 1988. The IJ discredited Morales’s testimony

because no witness corroborated her arrival date: “[I]t is very,

very difficult for the Court to believe [Morales’s] testimony

that she was here as early as 1986, when not one of the per7The BIA’s refusal to consider these documents, when submitted in a

motion to supplement, was improper. The BIA incorrectly concluded the

English-language documents did not comply with 8 C.F.R. § 1003.33

because they were not accompanied by a certification of translation. In

fact, no certification of translation was necessary because the Englishlanguage documents were originals. As Morales explained, the school that

issued the records provided both Spanish and English versions to Morales,

which is why she submitted both sets of originals to the BIA. 

MORALES APOLINAR v. MUKASEY 1217
sons that allegedly would have known of her entry into this

country is willing to come to Court and testify on her behalf.”

Had Valinoti called the available relatives, their testimony

would have been a factor considered by the IJ. See VeraVillegas v. INS, 330 F.3d 1222, 1225 (9th Cir. 2003) (“[T]he

time element of an alien’s residency . . . may be shown by

credible direct testimony or written declarations.”); see also

Perez-Lastor, 208 F.3d at 782 (drawing inference of prejudice

despite lack of evidence as to the content of omitted testimony). 

[7] Valinoti’s deficient performance also prejudiced Morales’s ability to meet the “exceptional and extremely unusual

hardship” requirement for cancellation of removal. See 8

U.S.C. § 1229b(b)(1)(D). Morales had to show that a qualifying (i.e., citizen or legal permanent resident) relative — “her

spouse, parent, or child” — would suffer hardship substantially beyond that which would ordinarily be expected to

result from her removal In re Monreal, 23 I. & N. Dec. 56

(BIA 2001). Valinoti, who represented the entire Morales

family throughout the course of Morales’s removal proceedings, failed to establish Morales’s mother as a qualifying relative for hardship analysis purposes. Cf. Lara-Torres v.

Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004) (concluding that

ineffective assistance of counsel claims brought under the

Fifth Amendment’s fair hearing guarantee are limited to

“legal services . . . rendered while proceedings were ongoing”). Any competent attorney would have recognized the

strategic value of strengthening Morales’s hardship case by

qualifying her mother. However, the BIA dismissed as “speculation” the possibility that Morales’s mother could have

adjusted her status to that of a lawful permanent resident. In

fact, Morales’s mother has successfully adjusted her status

with the aid of newly retained counsel. 

[8] On appeal, Morales need only show “plausible grounds

for relief.” Lin, 377 F.3d at 1027. With her mother established

as a qualifying relative, it is certainly plausible that Morales

1218 MORALES APOLINAR v. MUKASEY
would have met the hardship requirement because Morales’s

mother, who lives with her, is permanently disabled. See 8

C.F.R. § 1240.58(b) (listing the health condition of a parent

as ground for hardship); Maravilla Maravilla v. Ashcroft, 381

F.3d 855, 857-58 (9th Cir. 2004) (per curiam). The facts surrounding Morales’s permanently disabled mother, her young

daughter’s medical problems, the impact of removal on her

United States citizen children, and Morales’s residence in the

United States since her early childhood days might all have

been favorably developed by a competent lawyer who was

thoroughly familiar with the details of her case. Of course,

“our role is not to second guess the hardship decision or even

to speculate how it might ultimately come out with a [competent] lawyer marshaling the facts in concert with the law.” See

Baltazar-Alcazar v. INS, 386 F.3d 940, 949 (9th Cir. 2004).

Rather, we simply conclude that Morales’s ability to present

her case may have been affected by the deficient performance

of Valinoti and, as a result, we grant Morales another opportunity to present her case before the IJ. In so holding, we dismiss as moot Morales’s appeal of the BIA’s denial of her

motion to reconsider. 

Accordingly, we GRANT the petition for review in No. 04-

73484 and REMAND. We DISMISS the petition for review

in No. 04-75248. 

MORALES APOLINAR v. MUKASEY 1219