NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0211n.06

No. 20-3916

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ABDALSALAM OMRAN,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

BEFORE: SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges. 

PER CURIAM. Abdalsalam Omran petitions this court for review of an order of the Board 

of Immigration Appeals (“BIA”) dismissing his appeal from the denial of his motion to reopen his 

removal proceedings and rescind a removal order entered in absentia. As set forth below, we deny 

in part and dismiss in part the petition for review. 

In November 2015, Omran, a native and citizen of Israel and the Occupied Territories,

entered the United States as a nonimmigrant B-2 visitor with authorization to remain for a sixmonth period. Omran submitted an asylum application in October 2016. On March 2, 2018, the 

Department of Homeland Security detained Omran and served him with a notice to appear in 

removal proceedings, charging him with remaining in the United States for a time longer than 

permitted by his visa. See 8 U.S.C. § 1227(a)(1)(B). Thomas Gilbert subsequently entered an 

appearance as Omran’s attorney. At a hearing before the immigration court on March 26, 2018, 

Omran, through counsel, admitted the factual allegations set forth in the notice to appear and 

conceded removability as charged. During that hearing, the immigration court provided Gilbert 
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with a notice scheduling a hearing for April 26, 2018. Two days after the hearing, on March 28, 

2018, the immigration court sent Gilbert another notice scheduling a hearing for May 29, 2018. 

Gilbert appeared at the hearing on May 29, 2018, but Omran did not. At that hearing, the 

immigration judge (“IJ”) found that removability had been established as charged and ordered that 

Omran be removed in absentia. 

Two weeks later, Omran filed a motion to reopen his removal proceedings and rescind the 

in absentia removal order based on exceptional circumstances, asserting that counsel provided 

ineffective assistance by failing to keep him apprised of the scheduled hearing date. The IJ denied 

Omran’s motion to reopen and again ordered his removal. The IJ first found that reopening based 

on lack of notice was unwarranted because counsel received the hearing notice. With respect to 

Omran’s ineffective-assistance claim, the IJ pointed out that Omran complained about his current 

counsel and that the procedural requirements for ineffective-assistance claims established by 

Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), relate to former counsel. The IJ went on to 

determine that Omran had failed to comply with the Lozada requirements: his affidavit 

inadequately detailed his agreement with counsel and counsel’s failures; he provided an affidavit 

from another attorney at the firm, Svetlana Schreiber, rather than counsel of record; and he failed 

to file a complaint with the appropriate disciplinary authorities or provide an explanation for that 

failure. Finally, the IJ declined to find that sua sponte reopening was warranted.

Omran filed a motion to reconsider the IJ’s decision denying his motion to reopen, 

purportedly correcting the prior motion’s deficiencies. While his motion to reconsider was still 

pending, Omran filed a notice of appeal in the BIA, which divested the immigration court of 

jurisdiction over the motion to reconsider. See 8 C.F.R. § 1003.23(b)(1). Omran subsequently 
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moved the BIA to remand to the immigration court to allow him to apply for adjustment of status 

based on an approved petition for alien relative filed by his United States citizen wife.

The BIA dismissed Omran’s appeal from the IJ’s denial of his motion to reopen. According 

to the BIA, the IJ properly concluded that reopening was not warranted based on deficient notice 

because the immigration court satisfied the notice requirements. Recognizing that ineffective 

assistance of counsel may constitute an exceptional circumstance to support reopening, the BIA 

determined that Omran had failed to comply with the Lozada requirements: Omran’s affidavit 

inadequately detailed his agreement with counsel and counsel’s deficiencies, counsel failed to 

acknowledge his deficient performance or report his deficient performance to the relevant 

disciplinary authorities, and Omran failed to explain why he had not pursued a bar complaint 

against counsel. The BIA also found that Omran had failed to demonstrate prejudice or a denial 

of fundamental fairness based on counsel’s conduct, stating that he had not challenged his 

removability as charged in the notice to appear, that he had not shown a reasonable probability of 

prevailing on his asylum application, and that he was not the beneficiary of an approved petition 

for alien relative at the time of the final hearing and therefore was not prima facie eligible for that 

form of relief when the removal order was entered. Finally, the BIA was unpersuaded that 

exceptional circumstances warranted sua sponte reopening. One Board member dissented, stating 

that he would have sustained the appeal based on the totality of the circumstances, including 

Omran’s timely filing of the motion to reopen and the absence of any apparent bar to his eligibility 

for adjustment of status. 

Omran filed a timely petition for review of the BIA’s order. Omran argues that the BIA 

erred in (1) concluding that he had failed to comply with the Lozada requirements, (2) concluding 
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that counsel’s actions did not prejudice his case before the immigration court, and (3) declining to 

reopen his case sua sponte. 

“Where the BIA provides its own reasoning for denying a motion to reopen rather than 

summarily affirming the IJ, we review the BIA’s decision as the final agency determination.” 

Sanchez v. Holder, 627 F.3d 226, 230 (6th Cir. 2010). We review the denial of a motion to reopen 

for abuse of discretion. Kada v. Barr, 946 F.3d 960, 963 (6th Cir. 2020). “In the case of a denial 

of a motion to reopen, we look to whether the denial ‘was made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible basis such as 

invidious discrimination against a particular race or group.’” E.A.C.A. v. Rosen, 985 F.3d 499, 

503–04 (6th Cir. 2021) (quoting Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009)).

A removal order entered in absentia may be rescinded upon the timely filing of a motion 

to reopen demonstrating “that the failure to appear was because of exceptional circumstances.” 

8 U.S.C. § 1229a(b)(5)(C)(i). “Ineffective assistance of counsel can constitute exceptional 

circumstances for purposes of filing a motion to reopen.” Paz-Martinez v. Barr, 828 F. App’x 

302, 306 (6th Cir. 2020) (citing Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir. 2003)). 

The BIA determined that Omran had failed to comply with the Lozada requirements. 

Under Lozada, a motion to reopen based on ineffective assistance of counsel must be supported 

by:

1) an affidavit setting forth “in detail the agreement that was entered into with 

former counsel with respect to the actions to be taken,” as well as any 

representations made by counsel to the [movant]; 2) proof that the movant has 

informed former counsel of the allegations in writing, as well as any response 

received; and 3) a statement detailing “whether a complaint has been filed with 

appropriate disciplinary authorities regarding such representation, and if not, why 

not.”

Scorteanu, 339 F.3d at 414 (quoting Lozada, 19 I. & N. Dec. at 639). 
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According to the BIA, Omran’s affidavit inadequately detailed his agreement with counsel 

and counsel’s deficiencies. With respect to the scope of counsel’s representation, Omran’s 

affidavit stated: “My uncle drove me on several occasions to see the attorney when I went to 

prepare my Asylum application. When I was detained by ERO and placed in Immigration 

proceedings, my uncle worked closely with the Attorney to help with bond Motion, and get me 

released from ICE Custody.” Neither Omran’s nor his uncle’s affidavit identified counsel by name 

or provided any further information about the agreement with counsel, including whether counsel 

agreed to represent Omran throughout his removal proceedings. Omran’s affidavit further stated: 

“No notice was sent to my address and no one called to confirm I knew about the hearing.” Omran 

made no affirmative claim that counsel rendered ineffective assistance by failing to keep him 

apprised of the scheduled hearing date. 

The BIA also found that Omran had failed to comply with the third Lozada requirement: 

Omran neither filed a bar complaint against counsel nor explained why he declined to do so. 

Omran argues that failure to file a bar complaint is excused “where counsel acknowledged the 

ineffectiveness and made every effort to remedy the situation.” Fadiga v. Att’y Gen., 488 F.3d 

142, 157 (3d Cir. 2007). But we have not adopted this approach to the reporting requirement. See, 

e.g., Ibarra-Reina v. Lynch, 651 F. App’x 427, 432 (6th Cir. 2016); Komi v. Gonzales, 186 F. 

App’x 597, 600 (6th Cir. 2006). The BIA observed that Omran’s failure to comply with the 

reporting requirement “is particularly problematic here, as [he] remains represented by the same 

counsel who allegedly performed deficiently before the Immigration Court[.]” The BIA noted that 

the reporting requirement plays an important role in rooting out meritless or collusive ineffectiveassistance claims:
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The requirement that disciplinary authorities be 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, the outcome of which may, and often does, 

have enormous significance for the person.

Lozada, 19 I. & N. Dec. at 639-40.

The BIA did not abuse its discretion in determining that Omran had failed to comply with 

the Lozada requirements. By failing to comply with those requirements, Omran forfeited his claim 

of ineffective assistance as a basis for reopening his removal proceedings. See Pepaj v. Mukasey, 

509 F.3d 725, 727 (6th Cir. 2007).1 

Finally, Omran argues that the BIA erred in declining to reopen his case sua sponte, 

asserting that relief in the forms of asylum and adjustment of status would be available to him if 

his removal proceedings were reopened. The decision whether to invoke sua sponte authority to 

reopen removal proceedings “‘is committed to the unfettered discretion of the BIA’ and therefore 

is not subject to judicial review.” Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008) (quoting 

Harchenko v. I.N.S., 379 F.3d 405, 410–11 (6th Cir. 2004)). Accordingly, we lack jurisdiction to 

review the BIA’s discretionary decision to decline to reopen Omran’s case sua sponte. 

For these reasons, we deny in part and dismiss in part Omran’s petition for review.

1We note one issue with the BIA determining that Omran had failed to demonstrate 

prejudice or a denial of fundamental fairness based on counsel’s actions—the BIA has held that a 

movant is not required to show prejudice to rescind an in absentia removal order based on 

ineffective assistance of counsel. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (B.I.A. 

1996); see E.A.C.A., 985 F.3d at 509 (holding that a movant “is not required to make a prima facie

showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in

absentia order of removal”). However, the BIA’s failure to follow its own precedent is ultimately 

inconsequential in this case because Omran forfeited his ineffective-assistance claim by failing to 

comply with the Lozada requirements.