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Matter of Jesus A. MELGAR, Respondent

Decided December 4, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Counsel’s acceptance of responsibility for error does not discharge the disciplinary 

authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988),

particularly where the ineffective assistance allegation is rendered by the same attorney 

against himself.

(2) A respondent seeking reopening on the basis of a claim of ineffective assistance of 

counsel must show a reasonable probability that, but for counsel’s error, he would have 

prevailed on his claim.

FOR RESPONDENT: Gage C. Herbst, Esquire, Midvale, Utah

FOR THE DEPARTMENT OF HOMELAND SECURITY: Saida Ulle, Assistant Chief 

Counsel

BEFORE: Board Panel: GRANT, MULLANE, and RILEY, Appellate Immigration 

Judges

MULLANE, Appellate Immigration Judge:

This case was last before us on September 3, 2019, when we dismissed 

the respondent’s appeal from an Immigration Judge’s order of removal and 

denied his motion to remand to apply for adjustment of status on the basis of 

an approved visa petition filed by his United States citizen son. On 

December 2, 2019, the respondent filed a timely motion to reopen based on 

a claim of ineffective assistance of counsel. The Department of Homeland 

Security (“DHS”) opposes the respondent’s motion. 1 The respondent’s 

motion to reopen will be denied. 

The respondent is a native and citizen of El Salvador. In his motion, he 

asserts that his attorney provided ineffective assistance during the pendency 

of his appeal. In particular, he contends that his attorney, who is still his 

1 In its opposition, the DHS incorrectly states that the respondent’s motion is numerically 

barred. An alien is entitled to file one motion to reopen after each final order of removal. 

See 8 C.F.R. § 1003.2(c)(2) (2020). The motion to rescind the respondent previously filed 

and had granted pertained to a different final order and does not bar the respondent from 

filing a motion to reopen within 90 days of our September 3, 2019, decision, despite the 

DHS’s assertion to the contrary.
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attorney, did not ask him for information regarding his rehabilitation or other 

positive factors and therefore did not present sufficient evidence to establish 

that he was entitled to a remand to apply for adjustment of status on the basis 

of an approved visa petition filed by his United States citizen son. The 

respondent maintains that he has satisfied the procedural requirements that 

must be met before the Board will consider a motion to reopen based on 

ineffective assistance of counsel. The respondent also contends that he has

established that he was prejudiced by his attorney’s errors. 

The respondent’s ineffective assistance of counsel claim is different 

because the claim is made against his current counsel, who represented him 

before the Immigration Judge and on appeal to the Board, and continues to 

represent him in the motion to reopen. In Matter of Lozada, 19 I&N Dec. 

637 (BIA 1988), we stated that a claim for ineffective assistance of counsel 

“should reflect whether a complaint has been filed with appropriate 

disciplinary authorities regarding such representation, and if not, why not.” 

Matter of Lozada did not hold that any such explanation, however 

insufficient, would satisfy this requirement. Here respondent indicates that 

a complaint has not been filed with disciplinary authorities “[b]ecause 

counsel has taken responsibility for the error and the error is clear.” But the 

obligation of the complaint cannot be so easily discharged, otherwise the 

purpose of the requirement is rendered inconsequential. This is particularly 

true in this context, where the ineffective assistance allegation is rendered by 

the same attorney against himself.2 The claim here, if permitted, renders 

Matter of Lozada ineffectual. 

The bar complaint requirement is designed to “highlight[] the standards 

which should be expected of attorneys who represent persons in immigration 

proceedings.” Id. at 639; see also Matter of Rivera, 21 I&N Dec. 599, 604 

(BIA 1996). Requiring notification of disciplinary authorities is important 

because this is the most effective way of informing disciplinary authorities 

of allegations of potential violations of ethical or legal responsibilities. 

While a single instance of malpractice may not be sufficient for disciplinary 

authorities to act, the notification requirement allows disciplinary authorities 

to assess whether there is a pattern of misconduct that should be addressed. 

Further, the bar complaint “also serves to protect against collusion between 

alien and counsel in which ‘ineffective’ assistance is tolerated, and goes 

unchallenged by an alien before disciplinary authorities, because it results in 

a benefit to the alien in that delay can be a desired end, in itself, in 

immigration proceedings.” Matter of Rivera, 21 I&N Dec. at 604. There 

may be valid reasons for not submitting a bar complaint—such as death of 

2 The ethical propriety of an attorney making allegations of misconduct against himself 

or herself is addressed in the ABA Model Rules of Professional Conduct, Rule 1.7.
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prior attorney or his disbarment—but respondent has not stated one here 

except for a self-serving purpose, which we will not accept. For these 

reasons, we conclude that respondent has not satisfied Matter of Lozada.

Even if we assume that the respondent’s attorney provided ineffective 

assistance and that the respondent has satisfied the procedural requirements 

of Matter of Lozada, the respondent has not met his burden of showing that 

he was prejudiced by his attorney’s errors. See Matter of Lozada, 19 I&N 

Dec. at 638. Specifically, the respondent has not met his burden of 

establishing a reasonable probability that, but for his attorney’s mistakes, he 

would have obtained a remand to apply for adjustment of status. See, e.g.,

Harmon v. Sharp, 936 F.3d 1044, 1059 (10th Cir. 2019) (noting, in context 

of habeas proceeding, that, to show prejudice from ineffective assistance, a 

petitioner must demonstrate a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different) 

(citations omitted). The “reasonable probability” standard is appropriate 

because ineffective assistance of counsel only matters when there is 

prejudice. See Matter of Lozada, 19 I&N Dec. at 640. Reopening such cases 

is an extraordinary remedy that should not be invoked for attorney error that 

is non-prejudicial to the decision. A respondent who does not prevail on his

claim may feel this was because his attorney was not good enough. Matter

of Lozada remedies are not for those cases where a better attorney might have 

obtained a favorable result. Our concern is for respondents who have 

suffered significant harm and can show a reasonable probability that they 

would have prevailed on their claim. Thus a respondent does not have to 

show he definitely would have prevailed, but he needs to make a clear 

showing that the attorney erred in such a manner that he can show a 

reasonable probability that he would have prevailed on the claim, if not for 

the error.

The respondent has not shown a reasonable probability that he would 

have obtained a remand to apply for adjustment of status if his attorney had 

not made the alleged mistake. The respondent asserts that the additional 

evidence he submitted with his current motion establishes that he is entitled 

to a discretionary grant of adjustment of status. We disagree.

The additional information the respondent submitted regarding his 

criminal record does not erase our concerns regarding the number of 

encounters he has had with law enforcement and the extended period over 

which these encounters have occurred. The information also does not dispel 

our concern regarding his conviction for child abuse under section

76-5-109(3)(B) of the Utah Code Annotated. The respondent asserts that his 

offense is not a crime involving moral turpitude, but we do not need to 

resolve this issue to make a determination on the respondent’s motion. The 

offense does qualify as a crime of child abuse for the purposes of 
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section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(E)(i) (2018). See Matter of Velazquez-Herrera, 24 I&N Dec. 

503, 512 (BIA 2008). 3 Accordingly, the conviction is a strong negative 

factor weighing against a grant of adjustment. 

Further, the respondent has not submitted statements from any of his 

children, and the letters he submitted are not sufficient to outweigh his long 

history of arrests and his convictions for child abuse, assault, and disorderly 

conduct. See, e.g., Matter of Coelho, 20 I&N Dec. 464, 472–73 (BIA 1992) 

(indicating that a moving party must establish that he or she warrants relief 

as a matter of discretion). The respondent’s new evidence therefore is not 

sufficient to meet his burden of showing a reasonable probability that he 

would have obtained a remand to pursue adjustment if his attorney had 

presented this evidence with his motion to remand. The respondent 

accordingly has not established that he was prejudiced by any error of his 

attorney, and we deny his motion to reopen based on a claim of ineffective 

assistance of counsel. 

ORDER: The respondent’s motion to reopen is denied. 

NOTICE: If a respondent is subject to a final order of removal and 

willfully fails or refuses to depart from the United States pursuant to the 

order, to make timely application in good faith for travel or other documents 

necessary to depart the United States, or to present himself or herself at the 

time and place required for removal by the DHS, or conspires to or takes any 

action designed to prevent or hamper the respondent’s departure pursuant to 

the order of removal, the respondent shall be subject to a civil monetary 

penalty of up to $813 for each day the respondent is in violation. See Section 

274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

3 The respondent was convicted under section 76-5-109(3)(B) of the Utah Code 

Annotated. His offense therefore had as an element a mens rea of recklessness and is 

distinguishable from the offense discussed in Ibarra v. Holder, 736 F.3d 903 (10th Cir. 

2013).