b'Assistance of Counsel in Removal Proceedings ( I )\nThe Constitution does not confer a constitutional right to effective assistance of counsel in\nremoval proceedings, because the alien has no constitutional right to counsel, including\ngovernment-appointed counsel, in the first place.\nAlthough the Constitution does not entitle an alien to relief for his lawyer\xe2\x80\x99s mistakes, the\nDepartment may, in its discretion, allow an alien to reopen removal proceedings based\non the deficient performance of his lawyer.\nIn extraordinary cases, where a lawyer\xe2\x80\x99s deficient performance likely changed the outcome\nof an alien\xe2\x80\x99s removal proceedings, the Board may reopen removal proceedings notwithstanding the absence of a constitutional right to such relief.\nJanuary 7, 2009\n\nOPINION IN REMOVAL PROCEEDINGS *\nMATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT\nMATTER OF SYLLA BANGALY, RESPONDENT\nMATTER OF J-E-C- ET AL., RESPONDENTS\nOn August 7, 2008, pursuant to 8 C.F.R. \xc2\xa7 1003.1(h)(1)(i) (2007), I directed the Board of Immigration Appeals (\xe2\x80\x9cBoard\xe2\x80\x9d) to refer to me for\nreview its decisions in the above-captioned cases, and I invited the parties\nand any interested amici to submit briefs addressing the questions I planned\nto consider on certification.\nFor the reasons set forth in the accompanying opinion, I affirm the\nBoard\xe2\x80\x99s orders denying reopening in the certified cases and overrule the\nBoard\xe2\x80\x99s decisions in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),\nand Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003), to the extent those\ndecisions are inconsistent with the legal conclusions and administrative\nframework set forth in the opinion.\n* * * * *\nThe Supreme Court has recognized constitutional claims for ineffective\nassistance of counsel only where a person has a constitutional right to a\n* Editor\xe2\x80\x99s Note: This opinion was subsequently vacated by Matter of Compean, Bangaly\n& J-E-C-, 25 I. & N. Dec. 1 (Att\xe2\x80\x99y Gen. 2009); Assistance of Counsel in Removal Proceedings ( II ), 33 Op. O.L.C. 57 (2009) (Holder, Att\xe2\x80\x99y Gen.).\n\n1\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\ngovernment-appointed lawyer. In contrast to a defendant in a criminal\ncase, an alien has no right\xe2\x80\x94constitutional or statutory\xe2\x80\x94to governmentappointed counsel in an administrative removal proceeding. Compare\nImmigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d) \xc2\xa7 240(b)(4)(A),\n8 U.S.C. \xc2\xa7 1229a(b)(4)(A) (2006) (providing that an alien has a \xe2\x80\x9cprivilege\nof being represented, at no expense to the Government, by counsel of the\nalien\xe2\x80\x99s choosing\xe2\x80\x9d), and INA \xc2\xa7 292, 8 U.S.C. \xc2\xa7 1362 (2006), with U.S.\nConst. amend. VI (\xe2\x80\x9cIn all criminal prosecutions, the accused shall . . . have\nthe Assistance of Counsel for his defence.\xe2\x80\x9d), and Gideon v. Wainwright,\n372 U.S. 335 (1963). The question before me is whether, notwithstanding\nthe absence of a constitutional right to a government-appointed lawyer,\nthere is nevertheless a constitutional right to effective assistance of counsel in removal proceedings. More specifically, the question is whether the\nConstitution entitles an alien who has been harmed by his lawyer\xe2\x80\x99s deficient performance in removal proceedings to redo those proceedings.\nIn Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the Board of Immigration Appeals (\xe2\x80\x9cBoard\xe2\x80\x9d) responded to an alien\xe2\x80\x99s constitutional claim\nof ineffective assistance of counsel by assuming, consistent with the earlier\nrulings of two federal courts of appeals, that an alien \xe2\x80\x9cmay\xe2\x80\x9d have a constitutional right to effective assistance of counsel under the Due Process\nClause of the Fifth Amendment. Id. at 638. Having thus accepted the potential existence of such a right, the Board\xe2\x80\x99s decision established three threshold requirements\xe2\x80\x94commonly known as the \xe2\x80\x9cLozada factors\xe2\x80\x9d\xe2\x80\x94that an\nalien must satisfy to reopen his removal proceedings on the basis of lawyer\nerror. The Board revisited these issues 15 years later in Matter of Assaad,\n23 I. & N. Dec. 553 (BIA 2003), in response to a claim from the Immigration and Naturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) that Supreme Court precedent in\ncriminal and habeas cases undermined the notion of a constitutional right to\neffective assistance of counsel in removal proceedings. The Board acknowledged \xe2\x80\x9csome ambiguity in the basis set forth in [Lozada] for [aliens]\nto assert ineffective assistance claims,\xe2\x80\x9d but declined to overrule its prior\ndecision. Id. at 558. Among the reasons cited by the Board, one loomed\nlarge: \xe2\x80\x9c[S]ince Matter of Lozada was decided 15 years ago, the circuit\ncourts have consistently continued to recognize that . . . [an alien] has a\nFifth Amendment due process right to a fair immigration hearing and may\nbe denied that right if counsel prevents the respondent from meaningfully\npresenting his or her case.\xe2\x80\x9d Id. (citing cases).\n2\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nFive years later, that condition no longer holds, as several courts of appeals, relying on the same Supreme Court precedent that the INS had cited\nin Assaad, have rejected the proposition that there is a constitutional right\nto the effective assistance of counsel in removal proceedings. See, e.g.,\nRafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey,\n526 F.3d 788, 798\xe2\x80\x9399 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523,\n525 (7th Cir. 2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir.\n2006) (suggesting the same in dictum); Stroe v. INS, 256 F.3d 498, 500\xe2\x80\x9301\n(7th Cir. 2001) (same and noting that the \xe2\x80\x9cquestion whether there is ever a\nconstitutional right to [effective assistance of] counsel in immigration cases\nis ripe for reconsideration\xe2\x80\x9d). In addition, the courts of appeals that continue\nto recognize the constitutional right have diverged with respect to the\nstandards and requirements for a successful ineffective assistance claim.\nSome courts, for example, have applied a strict standard of prejudice while\nothers have not; some have treated the Lozada factors as mandatory while\nothers have not.\nBecause of the circuit splits on these important issues, and the resulting\npatchwork of rules governing motions to reopen removal proceedings in\ndifferent parts of the country, I ordered the Board to refer these matters to\nme so that I could review the Board\xe2\x80\x99s position on both the constitutional\nquestion and the question of how best to resolve an alien\xe2\x80\x99s claim that his\nremoval proceeding was prejudiced by his lawyer\xe2\x80\x99s errors. See Att\xe2\x80\x99y Gen.\nOrder Nos. 2990-2008, 2991-2008, & 2992-2008 (Aug. 7, 2008); see also\n8 C.F.R. \xc2\xa7 1003.1(h)(1)(i) (2008); cf. Matter of R-A-, 24 I. & N. Dec. 629,\n631 (Att\xe2\x80\x99y Gen. 2008) (stressing the importance of a \xe2\x80\x9cconsistent, authoritative, nationwide interpretation of ambiguous provisions of the immigration\nlaws\xe2\x80\x9d). To aid my review, I invited the parties and any interested amici\ncuriae to submit briefs addressing the constitutional question. I invited\nthem to address also whether, if there is no constitutional right to effective\nassistance of counsel, an alien nevertheless should be permitted, as a matter\nof administrative discretion, to reopen removal proceedings based on his\nlawyer\xe2\x80\x99s deficient performance. 1\n\nMy orders of August 7, 2008, called for submission of all briefs by September 15,\n2008, and stated that \xe2\x80\x9crequests for extensions will be disfavored.\xe2\x80\x9d Following requests from\na few parties and amici, however, I extended the briefing deadline for all briefs by three\nweeks, until October 6, 2008. See Att\xe2\x80\x99y Gen. Order No. 2998-2008 (Sept. 8, 2008). Thus, in\n1\n\n3\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nI conclude, as have a growing number of federal courts, that the Constitution does not confer a constitutional right to effective assistance of counsel in removal proceedings. The reason is simple: Under Supreme Court\nprecedent, there is no constitutional right to effective assistance of counsel\nunder the Due Process Clause or any other provision where\xe2\x80\x94as here and as\nin most civil proceedings\xe2\x80\x94there is no constitutional right to counsel,\nincluding government-appointed counsel, in the first place. Therefore,\nalthough the Fifth Amendment\xe2\x80\x99s Due Process Clause applies in removal\nproceedings, as it does in any civil lawsuit or in any administrative proceeding, that Clause does not entitle an alien to effective assistance of\ncounsel, much less the specific remedy of a second bite at the apple based\non the mistakes of his own lawyer.\nHowever, the foregoing conclusion does not foreclose a remedy for\naliens prejudiced by their lawyers\xe2\x80\x99 errors, because the Department of\nJustice is not limited to the very least that the Constitution demands. Although the Constitution does not entitle an alien to relief for his lawyer\xe2\x80\x99s\nmistakes, I conclude that the Department may, in its discretion, allow an\nalien to reopen removal proceedings based on the deficient performance of\nhis lawyer. Balancing the strong public interest in the fairness and accuracy\nof removal proceedings with the strong public interest in the finality of\ncompleted proceedings, I establish in this opinion an administrative framework for the exercise of that discretion. In extraordinary cases, where a\nlawyer\xe2\x80\x99s deficient performance likely changed the outcome of an alien\xe2\x80\x99s\nremoval proceedings, the Board may reopen those proceedings notwithstanding the absence of a constitutional right to such relief. Applying this\nadministrative framework to the three cases before me, I affirm the Board\xe2\x80\x99s\norders.\nI.\nI begin with a brief summary of the certified matters. In Matter of Compean, respondent, a native and citizen of Mexico, unlawfully entered the\ntotal, the parties and amici had one day shy of two full months to prepare their submissions,\nwhich is more time than that usually granted for briefing matters before the Board. See\nBoard of Immigration Appeals Practice Manual ch. 4.7(a) & (c), at 65\xe2\x80\x9367 (rev. ed. July 30,\n2004). I received more than a dozen amicus briefs from interested organizations and\nindividuals.\n\n4\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nUnited States in 1989. In 2004, he was placed in removal proceedings and\nsought cancellation of removal. The Immigration Judge denied respondent\xe2\x80\x99s request on the ground that he had failed to establish the \xe2\x80\x9cexceptional\nand extremely unusual hardship\xe2\x80\x9d required by section 240A(b)(1)(D) of the\nAct, 8 U.S.C. \xc2\xa7 1229b(b)(1)(D) (2006), and ordered him removed from the\nUnited States. After the Board affirmed on the merits, respondent filed a\nmotion to reopen on the grounds of ineffective assistance of counsel. Respondent\xe2\x80\x99s self-described \xe2\x80\x9cmost important\xe2\x80\x9d claim was that his former\nlawyer had failed to present evidence of a pending Form I-130 visa petition, although in point of fact that form had been part of the record before\nthe Immigration Judge. In May 2008, the Board denied the motion on two\ngrounds. First, the Board found that respondent had not filed a complaint\nwith disciplinary authorities regarding his lawyer\xe2\x80\x99s deficient representation\nor explained his failure to do so, as required by Lozada. Second, noting that\nrespondent had not produced any evidence that his lawyer\xe2\x80\x99s conduct precluded him from presenting before the Immigration Judge, the Board concluded that respondent had failed to establish that he had suffered prejudice\nfrom his lawyer\xe2\x80\x99s actions.\nIn Matter of Bangaly, respondent, a native and citizen of Mali, entered\nthe United States in 1998 on a non-immigrant visa, which he unlawfully\noverstayed. He was placed in removal proceedings in 2003. Respondent\nsubsequently obtained several continuances because he had filed for adjustment of status based upon his 2002 marriage to a United States citizen.\nIn 2004, the Department of Homeland Security denied respondent\xe2\x80\x99s request\nfor adjustment of status because his wife had failed three times to appear\nfor an interview. The Immigration Judge denied respondent\xe2\x80\x99s request for a\nfurther continuance so that he could seek reopening of his adjustment of\nstatus petition and ordered him removed. Respondent\xe2\x80\x99s lawyer filed a\nnotice of appeal, which stated that respondent would challenge the denial\nof the additional continuance. Respondent\xe2\x80\x99s lawyer never filed an appellate\nbrief, however, and in 2005 the Board summarily affirmed the Immigration\nJudge\xe2\x80\x99s order. Approximately 2 years later, respondent moved to reopen\nhis removal proceedings. Respondent alleged that his former counsel\xe2\x80\x99s\nfailure to file an appellate brief and to notify him that his appeal had been\nsummarily denied constituted ineffective assistance of counsel but did not\nexplain how he had been prejudiced by these failures. In March 2008, the\nBoard denied respondent\xe2\x80\x99s motion because he had failed to comply with\n5\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\none of Lozada\xe2\x80\x99s requirements: He had not given his former counsel a\nchance to respond to his allegations of ineffective representation.\nFinally, in Matter of J-E-C-, the lead respondent, a native and citizen of\nColombia, was admitted to the United States in 2000 on a six-month visa.\nHis wife and children, also respondents, were admitted in 2001, on sixmonth visas as well. Lead respondent then sought asylum, withholding of\nremoval, and protection under the Convention Against Torture on his own\nbehalf and derivatively for his wife and children. In 2003, the Department\nof Homeland Security found respondents ineligible for relief and began\nremoval proceedings. In those proceedings, lead respondent conceded\nremovability, but renewed his application for asylum and withholding of\nremoval. The Immigration Judge denied relief, concluding that, among\nother things, lead respondent had failed to demonstrate persecution \xe2\x80\x9con\naccount of\xe2\x80\x9d a protected ground, and ordered respondents removed. Respondents\xe2\x80\x99 lawyer filed a notice of appeal with the Board alleging four\npoints of error, but the Board never received a brief in support of the appeal. Notwithstanding the absence of a brief, the Board addressed the four\npoints of error on the merits, and affirmed what it called the \xe2\x80\x9cthorough and\nwell-reasoned decision\xe2\x80\x9d of the Immigration Judge. Thereafter, respondents\nmoved to reopen, contending that counsel\xe2\x80\x99s failure to file a brief constituted ineffective assistance and submitting a copy of the brief they would\nhave submitted. In April 2008, the Board denied respondents\xe2\x80\x99 motion.\nNoting its previous decision addressing the merits of the claims, and reviewing those claims again, the Board concluded that respondents had\nsuffered no prejudice from the failure to file a brief because a brief would\nnot have changed the outcome of their proceedings.\nII.\nSeveral uncontroversial propositions inform whether there is a constitutional right to effective assistance of counsel in removal proceedings. A\nremoval proceeding is a civil action, not a criminal proceeding. See, e.g.,\nINS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (\xe2\x80\x9cA deportation\nproceeding is a purely civil action to determine eligibility to remain in this\ncountry, not to punish an unlawful entry.\xe2\x80\x9d); Harisiades v. Shaughnessy,\n342 U.S. 580, 594 (1952) (\xe2\x80\x9cDeportation, however severe its consequences,\nhas been consistently classified as a civil rather than a criminal proce6\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\ndure.\xe2\x80\x9d). 2 Therefore, the Sixth Amendment\xe2\x80\x99s guarantee that, in all \xe2\x80\x9ccriminal\nprosecutions,\xe2\x80\x9d an \xe2\x80\x9caccused shall . . . have the Assistance of counsel for his\ndefence\xe2\x80\x9d does not apply. See, e.g., Abel v. United States, 362 U.S. 217, 237\n(1960) (\xe2\x80\x9c[D]eportation proceedings are not subject to the constitutional\nsafeguards for criminal prosecutions.\xe2\x80\x9d). Accordingly, the federal courts\nuniformly have held that the Sixth Amendment right to counsel (which\nincludes the right to government-appointed counsel) does not apply in\nremoval proceedings. See, e.g., Tang v. Ashcroft, 354 F.3d 1192, 1196\n(10th Cir. 2003); United States v. Loaisiga, 104 F.3d 484, 485 (1st Cir.\n1997); Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir. 1986); United\nStates v. Cerda-Pena, 799 F.2d 1374, 1376 n.2 (9th Cir. 1986). The corresponding Sixth Amendment right to effective assistance of counsel, see\nStrickland v. Washington, 466 U.S. 668, 685\xe2\x80\x9386 (1984), does not apply\neither. See, e.g., Afanwi, 526 F.3d at 796 & n.31 (citing cases).\nUnlike the Sixth Amendment, the Due Process Clause of the Fifth\nAmendment, which provides that \xe2\x80\x9c[n]o person shall . . . be deprived of\nlife, liberty, or property, without due process of law,\xe2\x80\x9d applies to civil and\ncriminal proceedings alike. Moreover, that Clause applies to \xe2\x80\x9call \xe2\x80\x98persons\xe2\x80\x99\nwithin the United States, including aliens, whether their presence here is\nlawful, unlawful, temporary, or permanent.\xe2\x80\x9d Zadvydas v. Davis, 533 U.S.\n678, 693 (2001). Therefore, it is well established that the Fifth Amendment\nentitles all aliens who have entered the United States to due process of law\nin removal proceedings. See, e.g., Reno v. Flores, 507 U.S. 292, 306\n(1993); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,\n212 (1953) (\xe2\x80\x9c[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional\nstandards of fairness encompassed in due process of law.\xe2\x80\x9d).\nThe Fifth Amendment\xe2\x80\x99s due process guarantee, however, applies only\nagainst the government. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332\n(1976) (stating that the Due Process Clause applies only to \xe2\x80\x9cgovernmental\ndecisions which deprive individuals of \xe2\x80\x98liberty\xe2\x80\x99 or \xe2\x80\x98property\xe2\x80\x99 interests\nwithin the meaning of the Due Process Clause of the Fifth or Fourteenth\nAmendment\xe2\x80\x9d (emphasis added)). Thus, the actions of a private party,\n2 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.\nNo. 104-208, div. C, 110 Stat. 3009-546 (enacted Sept. 30, 1996), established a new type of\nproceeding known as a \xe2\x80\x9cremoval\xe2\x80\x9d proceeding to replace \xe2\x80\x9cdeportation\xe2\x80\x9d proceedings.\n\n7\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nincluding a privately retained lawyer, can give rise to a due process claim\nonly if those actions can be attributed to the government for constitutional\npurposes. See, e.g., S.F. Arts & Athletics, Inc. v. United States Olympic\nComm., 483 U.S. 522, 542\xe2\x80\x9343 (1987) (stating that where a plaintiff alleges\na violation of the Fifth Amendment, \xe2\x80\x9c[t]he fundamental inquiry is whether\nthe [defendant] is a governmental actor to whom the prohibitions of the\nConstitution apply\xe2\x80\x9d); cf. Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (stating\nthat the Due Process Clause of the Fourteenth Amendment \xe2\x80\x9cerects no\nshield against merely private conduct, however discriminatory or wrongful\xe2\x80\x9d). The question presented in these cases, therefore, is whether the\nconduct of a privately retained lawyer can be attributed to the government\nfor Due Process Clause purposes such that a litigant\xe2\x80\x99s general right to due\nprocess with respect to state action would include a specific right to effective representation by that private lawyer.\nIn the usual civil case, the answer to this question is a resounding no. 3 It\nis well established that, as a general matter, there is no constitutional right\nto counsel, and thus no constitutional right to effective assistance of coun3 The Supreme Court has recognized a due process right to government-appointed counsel (and thus a constitutional right to effective assistance of counsel) in certain civil proceedings that pose the same ultimate threat to a defendant\xe2\x80\x99s physical liberty as a criminal\ntrial that may result in incarceration. See Vitek v. Jones, 445 U.S. 480, 496\xe2\x80\x9397 (1980)\n(plurality opinion) (holding that an individual has a constitutional right to appointed\ncounsel in a civil proceeding the outcome of which may result in physical confinement at a\npsychiatric institution); In re Gault, 387 U.S. 1, 36\xe2\x80\x9341 (1967) (holding that a juvenile has a\nconstitutional due process right to appointed counsel in a delinquency proceeding where he\nfaces commitment to a juvenile-detention facility). But these cases involved the right to\ngovernment-appointed counsel, and the Supreme Court has largely limited these holdings to\ntheir particular contexts. See, e.g., Stroe, 256 F.3d at 500 (noting that Murray v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S. 551 (1987), \xe2\x80\x9cseem . . . to\nhave cut back on earlier cases according a Fifth Amendment right to counsel when physical\nliberty is at stake in a noncriminal proceeding\xe2\x80\x9d) (citing Lassiter v. Dep\xe2\x80\x99t of Social Services,\n452 U.S. 18, 31\xe2\x80\x9332 (1981), and In re Gault, 387 U.S. at 36). And, in any event, the \xe2\x80\x9cpreeminent generalization that emerges\xe2\x80\x9d from these cases is that the right to governmentappointed counsel \xe2\x80\x9chas been recognized to exist only where the litigant may lose his\nphysical liberty if he loses the litigation.\xe2\x80\x9d Lassiter, 452 U.S. at 25 (emphasis added).\nAlthough an alien may be detained during the course of a removal proceeding, he does not\n\xe2\x80\x9close his physical liberty\xe2\x80\x9d based on the outcome of the proceeding. That is, the point of the\nproceeding is not to determine or provide the basis for incarceration or an equivalent\ndeprivation of physical liberty, but rather to determine whether the alien is entitled to live\nfreely in the United States or must be released elsewhere.\n\n8\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nsel, in civil cases. See, e.g., MacCuish v. United States, 844 F.2d 733, 735\n(10th Cir. 1988) (citing cases). Instead, the rule is that counsel\xe2\x80\x99s errors are\nimputed to the client who chose his counsel, and that the client\xe2\x80\x99s sole\nremedy is a suit for malpractice against counsel and not a litigation doover. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership,\n507 U.S. 380, 397 (1993); Irwin v. Dep\xe2\x80\x99t of Veterans Affairs, 498 U.S. 89,\n92 (1990); Link v. Wabash R.R., 370 U.S. 626, 634 n.10 (1962); Magala,\n434 F.3d at 525. That is true even when the case is complex or the stakes\nare especially high. Indeed, \xe2\x80\x9c[t]he non-right to effective assistance of\ncounsel in civil cases is the rule even when the proceeding though nominally civil involves liberty or even life, as in a capital habeas corpus case,\nwhere the Supreme Court has held that there is no right to effective assistance of counsel.\xe2\x80\x9d Stroe, 256 F.3d at 500 (citing Murray v. Giarratano, 492\nU.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S. 551 (1987)).\nDespite the foregoing uncontroversial principles, several courts of appeals have suggested or held that the Due Process Clause creates a right to\neffective assistance of counsel in removal proceedings. See, e.g., Nehad v.\nMukasey, 535 F.3d 962, 967 (9th Cir. 2008); Aris v. Mukasey, 517 F.3d\n595, 600\xe2\x80\x9301 (2d Cir. 2008); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.\n2007); Fadiga v. Att\xe2\x80\x99y Gen., 488 F.3d 142, 155 (3d Cir. 2007); Sene v.\nGonzales, 453 F.3d 383, 386 (6th Cir. 2006); Dakane v. U.S. Att\xe2\x80\x99y Gen.,\n399 F.3d 1269, 1274 (11th Cir. 2005); Tang, 354 F.3d at 1196; see also\nNelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (\xe2\x80\x9c[T]he only\ncontext in which courts have recognized a constitutional right to effective\nassistance of counsel in civil litigation is in immigration cases.\xe2\x80\x9d). 4 As\nIt is important to note that many of these courts have limited the right to effective assistance of counsel to proceedings in which an alien seeks non-discretionary relief, thus\nprecluding constitutional ineffective assistance of counsel claims in proceedings seeking\npurely discretionary relief such as waiver or cancellation of removal, asylum, adjustment of\nstatus, or voluntary departure. See, e.g., Garcia v. Att\xe2\x80\x99y Gen., 329 F.3d 1217, 1223\xe2\x80\x9324\n(11th Cir. 2003); Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001); MejiaRodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999); see also Gutierrez-Morales v.\nHoman, 461 F.3d 605, 609\xe2\x80\x9310 (5th Cir. 2006); Guerra-Soto v. Ashcroft, 397 F.3d 637,\n640\xe2\x80\x9341 (8th Cir. 2005); United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004). But\nsee, e.g., Fernandez v. Gonzales, 439 F.3d 592, 602 & n.8 (9th Cir. 2006); Rabiu v. INS, 41\nF.3d 879, 882\xe2\x80\x9383 (2d Cir. 1994). These limitations flow from Supreme Court precedent\nholding that the constitutional guarantee of procedural due process applies to government\nproceedings only where a constitutionally protected interest in life, liberty, or property is at\n4\n\n9\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nnoted, the Board has accepted these decisions as well. See Assaad, 23\nI. & N. Dec. at 560; Lozada, 19 I. & N. Dec. at 638.\nIn doing so, however, the Board did not consider several critical points.\nFor one thing, the cases the Board has accepted as supporting a potential\nFifth Amendment right to effective assistance of counsel in removal proceedings rest on a weak foundation. As several courts now recognize, the\ncases acknowledging a constitutional right to effective assistance of counsel in removal proceedings trace back to a pair of 1975 decisions by the\nUnited States Court of Appeals for the Fifth Circuit, Barthold v. INS, 517\nF.2d 689 (5th Cir. 1975), and Paul v. INS, 521 F.2d 194 (5th Cir. 1975),\nneither of which actually held that such a right exists. See Afanwi, 526 F.3d\nat 797. In fact, the Fifth Circuit explicitly stated in those cases that the\n\xe2\x80\x9cexistence, let alone the nature and scope, of such a right has not been\nestablished,\xe2\x80\x9d and merely suggested in dictum that \xe2\x80\x9cany right an alien may\nhave in this regard is grounded in the fifth amendment guarantee of due\nprocess rather than the sixth amendment right to counsel.\xe2\x80\x9d Barthold, 517\nF.2d at 690 (emphasis added); see also Paul, 521 F.2d at 197 (following\nBarthold). 5\nMore important, the constitutional analysis in the cases that recognize a\nFifth Amendment right to effective assistance of counsel in removal proceedings is, in the words of the Seventh Circuit \xe2\x80\x9cdistinctly perfunctory,\xe2\x80\x9d\nStroe, 256 F.3d at 500; see also Assaad, 23 I. & N. Dec. at 558 (\xe2\x80\x9cWe . . .\nacknowledge some ambiguity in the basis set forth in [Lozada] for [aliens]\nto assert ineffective assistance claims.\xe2\x80\x9d), and fails to establish that lawyers\nprivately retained to represent aliens in removal proceedings are state\nactors for purposes of the Due Process Clause. This is a fatal flaw because,\nas noted, it is indisputable that the Fifth Amendment applies only against\nstake in those proceedings, see, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and\nthat such interests are not implicated where proceedings involve only the pursuit of purely\ndiscretionary administrative relief, see, e.g., Conn. Bd. of Pardons v. Dumschat, 452 U.S.\n458, 464\xe2\x80\x9367 (1981); Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 7\xe2\x80\x9310 (1979).\n5 5 In Assaad, the Board emphasized that the Fifth Circuit had \xe2\x80\x9cjoined the other circuits\nthat have found a basis in the Fifth Amendment for ineffective assistance of counsel\nclaims.\xe2\x80\x9d 23 I. & N. Dec. at 558 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th\nCir. 2001)). But the Fifth Circuit itself has stated that it \xe2\x80\x9chas repeatedly assumed without\ndeciding that an alien\xe2\x80\x99s claim of ineffective assistance may implicate due process concerns\nunder the Fifth Amendment.\xe2\x80\x9d Mai, 473 F.3d at 165 (emphasis added).\n\n10\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nthe government. See, e.g., S.F. Arts & Athletics, 483 U.S. at 542\xe2\x80\x9343;\nMathews, 424 U.S. at 332. And as the Eighth Circuit recently observed, it\nis \xe2\x80\x9cdifficult to see how an individual, such as an alien\xe2\x80\x99s attorney, who is\nnot a state actor, can deprive anyone of due process rights.\xe2\x80\x9d Rafiyev, 536\nF.3d at 860\xe2\x80\x9361.\nFor private action to trigger scrutiny under the Due Process Clause, there\nmust be a \xe2\x80\x9csufficiently close nexus\xe2\x80\x9d between the federal government and\nthe conduct of the private party \xe2\x80\x9cso that the action of the latter may be\nfairly treated as that of\xe2\x80\x9d the government itself. Jackson v. Metro. Edison\nCo., 419 U.S. 345, 351 (1974); accord Blum v. Yaretsky, 457 U.S. 991,\n1004\xe2\x80\x9305 (1982) (stating that \xe2\x80\x9cconstitutional standards\xe2\x80\x9d may be invoked to\nchallenge private action \xe2\x80\x9conly when it can be said that the [government] is\nresponsible for the specific conduct of which the plaintiff complains\xe2\x80\x9d);\nLugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (emphasizing that\nthe Due Process Clause applies to a private actor only if he may \xe2\x80\x9cfairly be\nsaid to be a state actor\xe2\x80\x9d). That may be the case where the private actor \xe2\x80\x9chas\nexercised powers that are traditionally the exclusive prerogative of the\n[government],\xe2\x80\x9d or where the government \xe2\x80\x9chas exercised coercive power or\nhas provided such significant encouragement, either overt or covert, that\nthe choice must in law be deemed to be that of the [government].\xe2\x80\x9d Blum,\n457 U.S. at 1004\xe2\x80\x9305 (internal quotation marks omitted). But \xe2\x80\x9c[t]he mere\nfact that a [private party] is subject to state regulation does not by itself\nconvert its action into that of the [government]\xe2\x80\x9d for purposes of the Due\nProcess Clause. Id. at 1004 (internal quotation marks omitted). And\n\xe2\x80\x9c[m]ere approval of or acquiescence in the initiatives of a private party is\nnot sufficient\xe2\x80\x9d either. Id. at 1004\xe2\x80\x9305.\nApplying these standards here, I agree with the courts that have concluded that the government is not responsible for the conduct of a privately\nretained lawyer in removal proceedings. See Rafiyev, 536 F.3d at 861;\nAfanwi, 526 F.3d at 798\xe2\x80\x9399; Magala, 434 F.3d at 525. A private lawyer\nplainly does not exercise \xe2\x80\x9cpowers that are traditionally the exclusive prerogative\xe2\x80\x9d of the government because the lawyer is an adversary of the\ngovernment. Cf. Brentwood Academy v. Tenn. Secondary Sch. Athletic\nAss\xe2\x80\x99n, 531 U.S. 288, 304 (2001) (\xe2\x80\x9cThe state-action doctrine does not convert opponents into virtual agents.\xe2\x80\x9d); Polk County v. Dodson, 454 U.S. 312,\n317\xe2\x80\x9324 (1981) (holding that adversaries of the state are not state actors for\npurposes of 42 U.S.C. \xc2\xa7 1983). Nor, in the ordinary case, can it be said\n11\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nthat a private lawyer\xe2\x80\x99s deficient performance in representing an alien in\nremoval proceedings is the product either of government \xe2\x80\x9ccoerci[on]\xe2\x80\x9d or\n\xe2\x80\x9cencouragement.\xe2\x80\x9d Blum, 457 U.S. at 1004\xe2\x80\x9305; see, e.g., Afanwi, 526 F.3d\nat 799 (\xe2\x80\x9cAfanwi\xe2\x80\x99s counsel was privately retained pursuant to 8 U.S.C.\n\xc2\xa7 1362, and his alleged ineffectiveness . . . was a purely private act. The\nfederal government was under no obligation to provide Afanwi with legal\nrepresentation, and there was no connection between the federal government and counsel\xe2\x80\x99s failure.\xe2\x80\x9d) (footnote omitted).\nIt is true that, as respondents and their amici assert, the federal government has taken affirmative steps to notify aliens of the availability of\ncounsel, see, e.g., 8 C.F.R. \xc2\xa7 1240.10(a)(1)\xe2\x80\x93(3) (2008), and to regulate the\nprivate immigration bar, see, e.g., id. \xc2\xa7\xc2\xa7 1003.101(a)(1)\xe2\x80\x93(4), 1003.102(k),\n1292.1(a)(1)\xe2\x80\x93(6), 1292.2(a), (c), (d), 1292.3(a). But as noted, the \xe2\x80\x9cmere\nfact that a [private party] is subject to state regulation does not by itself\nconvert its action into that of the [government]\xe2\x80\x9d for purposes of the Due\nProcess Clause. Blum, 457 U.S. at 1004 (internal quotation marks omitted).\nMoreover, for the constitutional standards to apply, the government must\nbe responsible for \xe2\x80\x9cthe specific conduct of which the plaintiff complains.\xe2\x80\x9d\nId. (emphasis added). It cannot accurately be said that the government\xe2\x80\x99s\nsteps to encourage competent representation and to improve the quality of\ncounsel as a general matter are \xe2\x80\x9cresponsible\xe2\x80\x9d for a specific lawyer\xe2\x80\x99s incompetent performance. Cf. Lawrence v. Florida, 547 U.S. 327, 337 (2007)\n(\xe2\x80\x9c[A] State\xe2\x80\x99s effort to assist prisoners in postconviction proceedings does\nnot make the State accountable for a prisoner\xe2\x80\x99s delay.\xe2\x80\x9d). The relevant\nregulatory provisions do not condone poor representation, much less constitute \xe2\x80\x9csignificant encouragement\xe2\x80\x9d of, Blum, 457 U.S. at 1004, or \xe2\x80\x9cwillful\nparticipa[tion] in,\xe2\x80\x9d Lugar, 457 U.S. at 941 (internal quotation marks omitted), incompetent performance. These basic and well-established principles, which the Board did not consider in either Lozada or Assaad, have\nmoved several courts to hold that private lawyers in immigration proceedings are not state actors for due process purposes. See Rafiyev, 536 F.3d at\n861; Afanwi, 526 F.3d at 798\xe2\x80\x9399; Magala, 434 F.3d at 525.\nIn arguing that a private lawyer\xe2\x80\x99s representation of an alien in a removal\nproceeding may nonetheless constitute state action, respondents and their\namici rely heavily on the Supreme Court\xe2\x80\x99s decision in Cuyler v. Sullivan,\n446 U.S. 335 (1980). See, e.g., Brief for American Immigration Law Foundation as Amicus Curiae at 11\xe2\x80\x9312, 15, 17; Brief for Joseph Afanwi as\n12\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nAmicus Curiae at 3, 6, 10, 12. But that reliance is misplaced. In Cuyler, the\nCourt held that a criminal defendant may challenge the effectiveness of his\ntrial lawyer even if that lawyer was privately retained. See 446 U.S. at 342\xe2\x80\x93\n45. A reading of the Court\xe2\x80\x99s decision, however, makes plain that its holding was merely an application of the underlying Sixth Amendment right to\ncounsel in criminal cases (and the equal justice principles that make that\nright applicable to the actions of both government-appointed and privately\nretained lawyers). As the Court explained:\nOur decisions make clear that inadequate assistance does not satisfy\nthe Sixth Amendment right to counsel . . . . [T]he Sixth Amendment\ndoes more than require the States to appoint counsel for indigent defendants. The [Sixth Amendment] right to counsel prevents the States\nfrom conducting trials at which persons who face incarceration must\ndefend themselves without adequate legal assistance.\nA proper respect for the Sixth Amendment disarms [the] contention\nthat defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. . . . The\nvital guarantee of the Sixth Amendment would stand for little if the\noften uninformed decision to retain a particular lawyer could reduce\nor forfeit the defendant\xe2\x80\x99s entitlement to constitutional protection.\nId. at 344 (emphasis added). As the repeated references in this passage to\nthe Sixth Amendment make clear, the Court\xe2\x80\x99s ruling was grounded in the\nSixth Amendment and its explicit guarantee of a right to counsel, including\ngovernment-appointed counsel, which are inapplicable here. That is, the\nCourt recognized a constitutional right to effective assistance of counsel by\nprivately retained lawyers in criminal proceedings because: (1) the Constitution itself, through the Sixth Amendment, guarantees a right to counsel in\nsuch proceedings (whether the defendant is \xe2\x80\x9cindigent\xe2\x80\x9d or able to hire lawyers); (2) to be meaningful, this right must refer to \xe2\x80\x9cadequate\xe2\x80\x9d (or effective) assistance of counsel; and (3) in light of principles of equal justice,\nthe right must apply to all criminal defendants, whether they hire private\nlawyers with their own funds or have a government-appointed lawyer.\nThus, where, as here, there is no constitutional right to counsel that includes the right to government-appointed counsel, the holding in Cuyler\ndoes not apply. See, e.g., Stroe, 256 F.3d at 501 (\xe2\x80\x9cIn criminal cases . . . the\nSixth Amendment is interpreted to impute even a retained lawyer\xe2\x80\x99s goof13\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nups to the state, Cuyler v. Sullivan, 446 U.S. 335, 342\xe2\x80\x9345 (1980)\xe2\x80\x94but then\nthe Sixth Amendment creates a right to counsel, whereas all that the due\nprocess clause requires, so far as procedure is concerned, is notice and an\nopportunity for a hearing.\xe2\x80\x9d).\nWere there any doubt on this score, it is resolved by the Supreme Court\xe2\x80\x99s\ndecisions in Wainright v. Torna, 455 U.S. 586 (1982) (per curiam), and\nColeman v. Thompson, 501 U.S. 722 (1991). In Wainwright, the Court\nconsidered whether the respondent, a criminal defendant, could challenge\nhis lawyer\xe2\x80\x99s failure to file timely a discretionary appeal to the state supreme court. Noting that \xe2\x80\x9ca criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals,\xe2\x80\x9d 455 U.S. at\n587 (citing Ross v. Moffitt, 417 U.S. 600 (1974)), the Court quickly disposed of the respondent\xe2\x80\x99s claim. \xe2\x80\x9cSince respondent had no constitutional\nright to counsel,\xe2\x80\x9d the Court explained, \xe2\x80\x9che could not be deprived of the\neffective assistance of counsel by his retained counsel\xe2\x80\x99s failure to file the\napplication timely.\xe2\x80\x9d Id. at 587\xe2\x80\x9388. In reaching this conclusion, the Court\nexplicitly addressed the due process and state action issues relevant here,\nexplaining that the respondent \xe2\x80\x9cwas not denied due process of law by the\nfact that counsel deprived him of his right to petition\xe2\x80\x9d the state supreme\ncourt for review because \xe2\x80\x9c[s]uch deprivation . . . was caused by his counsel, and not by the State.\xe2\x80\x9d Id. at 588 n.4.\nThe Court applied the same analysis in Coleman. In that case, the petitioner, a criminal defendant, had been convicted and sentenced to death. On\nstate habeas review, he raised various federal constitutional claims, but the\nstate supreme court refused to address them because his lawyer had filed an\nuntimely notice of appeal. Normally, such \xe2\x80\x9cprocedural default\xe2\x80\x9d would bar\nreview of the claims on federal habeas review, but the petitioner argued\nthat his lawyer\xe2\x80\x99s error should excuse the default. As in Wainwright, the\nCourt rejected this argument swiftly: \xe2\x80\x9cThere is no constitutional right to an\nattorney in state post-conviction proceedings. Consequently, a petitioner\ncannot claim constitutionally ineffective assistance of counsel in such\nproceedings. See Wainwright v. Torna, 455 U.S. 586 (1982) (where there is\nno constitutional right to counsel there can be no deprivation of effective\nassistance).\xe2\x80\x9d Coleman, 501 U.S. at 752 (some citations omitted). The Court\nfurther explained that because the petitioner\xe2\x80\x99s lawyer was \xe2\x80\x9cthe petitioner\xe2\x80\x99s\nagent when acting, or failing to act, in furtherance of the litigation, . . . the\npetitioner must \xe2\x80\x98bear the risk of attorney error.\xe2\x80\x99\xe2\x80\x9d Id. at 753 (quoting Mur14\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nray v. Carrier, 477 U.S. 478, 488 (1986); and citing Link, 370 U.S. at 634,\nand Irwin, 498 U.S. at 92).\nThe Court acknowledged that a different rule applied where, as in\nCuyler, a lawyer\xe2\x80\x99s conduct had deprived his client of the Sixth Amendment\xe2\x80\x99s right to counsel. The Court explained, however, that \xe2\x80\x9c[t]his is not\nbecause . . . the error is so bad that \xe2\x80\x98the lawyer ceases to be an agent of\nthe petitioner.\xe2\x80\x99\xe2\x80\x9d Coleman, 501 U.S. at 754 (quoting petitioner\xe2\x80\x99s brief).\nRather, \xe2\x80\x9cif the procedural default is the result of [constitutional] ineffective\nassistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State.\xe2\x80\x9d Id. (internal quotation marks\nomitted) (emphasis added). \xe2\x80\x9cIn other words,\xe2\x80\x9d wrote the Court, \xe2\x80\x9cit is not the\ngravity of the attorney\xe2\x80\x99s error that matters, but that it constitutes a violation\nof petitioner\xe2\x80\x99s right to counsel, so that the error must be seen as an external\nfactor, i.e., \xe2\x80\x98imputed to the State.\xe2\x80\x99\xe2\x80\x9d Id. Where a criminal defendant has\nbeen deprived of his Sixth Amendment right to effective assistance of\ncounsel, the Court continued, \xe2\x80\x9cthe State, which is responsible for the denial\nas a constitutional matter, must bear the cost. . . . A different allocation of\ncosts is appropriate in those circumstances where the State has no responsibility to ensure that the petitioner was represented by competent counsel.\xe2\x80\x9d\nId.; cf. Lawrence, 549 U.S. at 337 (holding that a lawyer\xe2\x80\x99s filing errors do\nnot entitle a party to equitable tolling in a \xe2\x80\x9ccontext where [the party] ha[s]\nno constitutional right to counsel\xe2\x80\x9d).\nRespondents and their amici attempt to distinguish Wainwright and\nColeman on the grounds that those cases implicated federalism concerns\nthat are not present here and involved discretionary state appeals rather\nthan first appeals as of right. See, e.g., Brief for American Immigration\nLaw Foundation as Amicus Curiae at 16\xe2\x80\x9318; Brief for Joseph Afanwi as\nAmicus Curiae at 11\xe2\x80\x9312. But to the extent relevant here, nothing in the\nCourt\xe2\x80\x99s decisions turned on these considerations. (Indeed, Wainwright\ndid not even discuss federalism.) See Assaad, 23 I. & N. Dec. at 565\xe2\x80\x9366\n(Scialabba, Chairman, and Filppu, Board Member, concurring). Respondents and their amici also contend that Wainwright and Coleman should\nnot guide the constitutional inquiry here because they concerned criminal,\nrather than immigration, matters. See, e.g., Brief for Respondent J-E-C- at\n9\xe2\x80\x9311; Brief for American Immigration Law Foundation as Amicus Curiae\nat 19\xe2\x80\x9320; Brief for Joseph Afanwi as Amicus Curiae at 11\xe2\x80\x9312; see also\nAssaad, 23 I. & N. Dec. at 560 (majority opinion) (stating, in adhering to\n15\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nLozada, that Wainwright and Coleman \xe2\x80\x9carose in the context of criminal,\nrather than immigration, proceedings\xe2\x80\x9d and thus did not control over circuit\nprecedent issued in the immigration context). But Coleman involved state\nhabeas review, which\xe2\x80\x94like a removal proceeding\xe2\x80\x94is civil in nature.\nMoreover, if anything, that Wainwright and Coleman related to criminal\ncases actually cuts against the arguments presented by respondents and\ntheir amici because criminal defendants enjoy an express constitutional\nright to assistance of counsel, including government-appointed counsel,\nwhile aliens in removal proceedings do not.\nIn the final analysis, respondents\xe2\x80\x99 and their amici\xe2\x80\x99s arguments boil down\nto an assertion that, notwithstanding all of the foregoing Supreme Court\nprecedent and settled constitutional law, an alien\xe2\x80\x99s general due process\nright to a full and fair hearing on the merits of his immigration claims must\ninclude a specific right to effective assistance of counsel because without\nsuch a specific right removal proceedings would be fundamentally unfair.\nIn particular, respondents and their amici contend that because the stakes in\nremoval proceedings are so high, the immigration laws are so complex, and\naliens are so often ill equipped\xe2\x80\x94due to cultural, educational, financial, or\nlanguage barriers\xe2\x80\x94successfully to handle them alone, due process requires\nthe guiding hand of competent counsel. See, e.g., Brief for the Immigration\nLaw Clinic at the University of Detroit Mercy School of Law as Amicus\nCuriae at 2\xe2\x80\x934; Brief for Respondent Bangaly at 9\xe2\x80\x9310 (arguing for a fundamentally fair proceeding); Brief for Respondent J-E-C- at 12 (same); see\nalso, e.g., Hernandez v. Mukasey, 524 F.3d 1014, 1017\xe2\x80\x9318 (9th Cir. 2008);\nHernandez-Gil v. Gonzales, 476 F.3d 803, 806\xe2\x80\x9307 (9th Cir. 2007). This\nargument is insufficient to override the relevant constitutional holdings of\nWainwright and Coleman, which had nothing to do with the complexity of\nthe issues involved or the wealth and sophistication of the litigants. Nor can\nthe arguments convert otherwise private actors into state actors, which, as\ndiscussed, is the prerequisite for a Due Process Clause claim.\nMoreover, respondents\xe2\x80\x99 and their amici\xe2\x80\x99s argument regarding the special\nnature of removal proceedings ignores key implications of the constitutional right they assert. If respondents and their amici are correct that a Fifth\nAmendment right to effective assistance of counsel flows from a litigant\xe2\x80\x99s\nrelative disadvantage in certain civil proceedings, the Constitution would\narguably require not just effective assistance by privately retained lawyers\nin removal proceedings, but also assistance of counsel\xe2\x80\x94including govern16\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nment-appointed counsel\xe2\x80\x94in removal proceedings. Yet no court has ever\nheld that such a right exists in removal proceedings. Nor has any court ever\nsuggested that where an alien represents himself in his removal proceedings (as often happens), he has a constitutional right to seek or obtain\nreopening of the proceedings on the ground that his own performance was\nincompetent. This fact is revealing, because as the Supreme Court has\nexplained in the Sixth Amendment context, there are serious equal protection concerns with construing the Constitution to confer greater rights on\nan alien who chose to avail himself of the privilege to retain counsel than\non an alien who did not do so or who could not do so because he was\nindigent. See Cuyler, 446 U.S. at 344.\nIn addition, if correct, respondents\xe2\x80\x99 and their amici\xe2\x80\x99s Fifth Amendment\nargument would apply with equal, if not greater, force to many other forms\nof civil proceedings. Yet courts have repeatedly and expressly held that\nthere is no constitutional right to effective assistance of counsel in other\ncivil contexts where the stakes are as high (or higher) than in removal\nproceedings and where litigants suffer from the same alleged disadvantages\nas aliens. As Judge Easterbrook explained in a recent Seventh Circuit\nopinion, \xe2\x80\x9cThe Constitution entitles aliens to due process of law, but this\ndoes not imply a right to good lawyering. Every litigant in every suit and\nevery administrative proceeding is entitled to due process, but it has long\nbeen understood that lawyers\xe2\x80\x99 mistakes are imputed to their clients.\xe2\x80\x9d Magala, 434 F.3d at 525 (citing cases); see also Stroe, 256 F.3d at 500.\nIn sum, and as a number of courts have now recognized, there is no valid\nbasis for finding a constitutional right to counsel in removal proceedings,\nand thus no valid basis for recognizing a constitutional right to effective\nassistance of privately retained lawyers in such proceedings. The Sixth\nAmendment right to effective assistance of counsel in criminal cases does\nnot apply because removal proceedings are civil. And the Fifth Amendment\ndoes not confer an equivalent right because the Due Process Clause applies\nonly against the government, aliens have no constitutional right to government-appointed lawyers in removal proceedings, and there is no other\nground for treating private lawyers as state actors. Accordingly, the government is not \xe2\x80\x9cresponsible\xe2\x80\x9d for the denial of effective representation in\nremoval proceedings \xe2\x80\x9cas a constitutional matter.\xe2\x80\x9d Coleman, 501 U.S. at\n754; see also, e.g., Rafiyev, 536 F.3d at 860\xe2\x80\x9361 (concluding that because\n\xe2\x80\x9c[c]onstitutional rights are rights against the government\xe2\x80\x9d and it is \xe2\x80\x9cdiffi17\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\ncult to see how an individual, such as an alien\xe2\x80\x99s attorney, who is not a state\nactor, can deprive anyone of due process rights,\xe2\x80\x9d there \xe2\x80\x9cis no constitutional\nright under the Fifth Amendment to effective assistance of counsel in a\nremoval proceeding\xe2\x80\x9d).\nThe fact that aliens in removal proceedings have a statutory privilege to\nretain counsel of their choosing at no expense to the government, see INA\n\xc2\xa7\xc2\xa7 240(b)(4) & 292, 8 U.S.C. \xc2\xa7\xc2\xa7 1229a(b)(4) & 1362, does not change the\nconstitutional analysis, because a statutory privilege is not the same as a\nright to assistance of counsel, including government-appointed counsel,\nunder the Constitution. See Finley, 481 U.S. at 556 (\xe2\x80\x9c[T]he fact that the\ndefendant has been afforded assistance of counsel [under state law] does\nnot end the inquiry for Federal constitutional purposes. Rather, it is the\nsource of that right to a lawyer\xe2\x80\x99s assistance, combined with the nature of\nthe proceedings, that controls the constitutional question. In this case,\nrespondent\xe2\x80\x99s access to a lawyer is the result of the State\xe2\x80\x99s decision, not the\ncommand of the United States Constitution.\xe2\x80\x9d). Under Finley, Wainwright\nand Coleman, it is the presence or absence of a constitutional (as opposed\nto statutory or other) right to counsel, including government-appointed\ncounsel, that controls whether there is a constitutional right to effective\nassistance of counsel. See Rafiyev, 536 F.3d at 861 (\xe2\x80\x9cRemoval proceedings\nare civil; there is no constitutional right to an attorney, so an alien cannot\nclaim constitutionally ineffective assistance of counsel.\xe2\x80\x9d) (citing Wainwright, Coleman and other cases). Because the Constitution does not confer\na right to counsel (including government-appointed counsel) in removal\nproceedings, I conclude, as have a growing number of federal courts of\nappeals, that there is no constitutional right to effective assistance of counsel in such proceedings. To the extent they are inconsistent with this conclusion, Lozada and Assaad (and any other Board precedent decisions on\npoint) are overruled.\nIII.\nHaving concluded that there is no constitutional right to effective assistance of counsel in removal proceedings, I consider whether a nonconstitutional source of law\xe2\x80\x94either the immigration statutes or departmental regulations\xe2\x80\x94entitle an alien to reopen his removal proceedings\nbased on his lawyer\xe2\x80\x99s deficient performance. They do not. The Act and\n18\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nits implementing regulations merely permit an alien to hire \xe2\x80\x9csuch counsel\xe2\x80\x9d\nas \xe2\x80\x9che shall choose,\xe2\x80\x9d INA \xc2\xa7 292; accord id. \xc2\xa7 240(b)(4)(A); 8 C.F.R.\n\xc2\xa7 1003.16(b) (2008); they give an alien \xe2\x80\x9cno right to complain,\xe2\x80\x9d much less\nreopen his proceedings, \xe2\x80\x9cif the lawyer he hires is ineffective.\xe2\x80\x9d Stroe, 256\nF.3d at 500; see also Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir.\n2008) (\xe2\x80\x9cNo statute entitles the alien to effective assistance of counsel.\xe2\x80\x9d);\ncf. Father & Sons Lumber and Bldg. Supplies, Inc. v. NLRB, 931 F.2d\n1093, 1097 (6th Cir. 1991) (holding that the Administrative Procedure Act,\n5 U.S.C. \xc2\xa7 555(b) (1988), which provides that a \xe2\x80\x9cperson compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel,\xe2\x80\x9d does not \xe2\x80\x9cconfer a statutory right to effective assistance of counsel\xe2\x80\x9d). Accordingly, neither the Constitution nor any\nstatutory or regulatory provision entitles an alien to a do-over if his initial\nremoval proceeding is prejudiced by the mistakes of a privately retained\nlawyer.\nThat said, the Department of Justice is \xe2\x80\x9cnot limited to the very least that\nthe Constitution\xe2\x80\x9d\xe2\x80\x94or the Act\xe2\x80\x94\xe2\x80\x9cdemands.\xe2\x80\x9d Magala, 434 F.3d at 526.\nAlthough the law does not require the Department to provide an alien with\nthe right to reopen his removal proceedings based on lawyer error, the law\nallows the Department to do so \xe2\x80\x9cas a matter of sound discretion.\xe2\x80\x9d Id. The\nsource for this authority is the Department\xe2\x80\x99s broad authority to reopen\nremoval proceedings. See INA \xc2\xa7 240(c)(7) (permitting a motion to reopen\nwithin 90 days of the date on which a final administrative order of removal\nis entered); id. \xc2\xa7 240(b)(5)(C) (granting an alien 180 days to seek reopening in order to rescind a removal order entered in absentia; and providing\nno time limit where the alien did not receive notice of the immigration\nhearing or was in custody); 8 C.F.R. \xc2\xa7 1003.2 (2008). The Act and its\nimplementing regulations place a few limits on the Board\xe2\x80\x99s discretion in\ndetermining whether reopening is warranted, see, e.g., INA \xc2\xa7 240(c)(7)(B)\n(providing that a motion to reopen must state \xe2\x80\x9cthe new facts that will be\nproven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material\xe2\x80\x9d); 8 C.F.R. \xc2\xa7 1003.2(c)\n(2008) (\xe2\x80\x9cA motion to reopen proceedings shall not be granted unless it\nappears to the Board that evidence sought to be offered is material and was\nnot available and could not have been discovered or presented at the former\nhearing[.]\xe2\x80\x9d), but the Board generally enjoys \xe2\x80\x9cbroad discretion\xe2\x80\x9d in ruling on\nmotions to reopen, and may deny reopening even where an alien has made\n19\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\na prima facie showing of eligibility for relief. INS v. Doherty, 502 U.S.\n314, 323 (1992); accord INS v. Abudu, 485 U.S. 94, 105\xe2\x80\x9306 (1988); INS v.\nRios-Pineda, 471 U.S. 444, 449 (1985); Matter of Coelho, 20 I. & N. Dec.\n464, 471\xe2\x80\x9372 (1992); cf. Matter of J-J-, 21 I. & N. Dec. 976, 984 (BIA\n1997) (stating that the authority to reopen proceedings sua sponte is limited\nto \xe2\x80\x9cexceptional\xe2\x80\x9d circumstances and \xe2\x80\x9cis not meant to be used as a general\ncure for filing defects or to otherwise circumvent the regulations, where\nenforcing them might result in hardship\xe2\x80\x9d). 6\nReopening removal proceedings on the basis of a lawyer\xe2\x80\x99s deficient\nperformance is a permissible exercise of this broad discretion. It is also a\nproper exercise of that discretion in appropriate circumstances\xe2\x80\x94namely,\nif certain prerequisites, explained below, are met\xe2\x80\x94because the stakes in\nremoval proceedings are sometimes high, the immigration laws can be\ncomplex, and many aliens would be better equipped to navigate them with\ncounsel. See, e.g., Aris, 517 F.3d at 600; Hernandez-Gil, 476 F.3d at 806\xe2\x80\x93\n07. Moreover, and regrettably, \xe2\x80\x9c[t]he deficiencies of the immigration bar\nare well known.\xe2\x80\x9d Stroe, 256 F.3d at 504; see also, e.g., Aris, 517 F.3d at\n596, 600\xe2\x80\x9301 (\xe2\x80\x9cWith disturbing frequency, this Court encounters evidence\nof ineffective representation by attorneys retained by immigrants seeking\nlegal status in this country.\xe2\x80\x9d). There is a strong public interest in ensuring\nthat these deficiencies do not affirmatively undermine the fairness and\naccuracy of removal proceedings. Cf. Final Rule: Professional Conduct\nfor Practitioners\xe2\x80\x94Rules and Procedures, 65 Fed. Reg. 39,513, 39,514\xe2\x80\x93\n15 (June 27, 2000) (recognizing that an effective disciplinary system protects the public, preserves the integrity of the immigration courts, and\nhelps maintain high professional standards); Final Rule: Professional\nConduct for Practitioners\xe2\x80\x94Rules and Procedures, and Representation\nand Appearances, 73 Fed. Reg. 76,914, 76,915 (Dec. 18, 2008) (defining\n\xe2\x80\x9cadditional categories of behavior that constitute misconduct\xe2\x80\x9d by attorneys\nand accredited representatives in order to \xe2\x80\x9cpreserve the fairness and integrity of immigration proceedings, and increase the level of protection afforded\nto aliens in those proceedings\xe2\x80\x9d). That interest justifies allowing the Board\nAlthough this opinion discusses the Board\xe2\x80\x99s power to reopen, immigration judges also\nhave the power to reopen removal proceedings based on a lawyer\xe2\x80\x99s deficient performance,\nsee 8 C.F.R. \xc2\xa7 1003.23 (2008), and shall be guided by the same standards and procedures\nset forth herein when adjudicating such a motion. Likewise, the framework in this opinion\napplies to claims of deficient performance raised before the Board on direct review.\n6\n\n20\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nto mitigate the consequences of a lawyer\xe2\x80\x99s deficient performance by allowing an alien to relitigate his removal in the extraordinary case where his\nlawyer\xe2\x80\x99s deficient performance likely changed the outcome of his initial\nremoval proceedings. 7\nAt the same time, it is important to recognize that there is a strong public\ninterest in the expeditiousness and finality of removal proceedings, an\ninterest that Congress has repeatedly emphasized through legislation\nimposing time limits and curbing discretionary relief. See, e.g., Liadov v.\nMukasey, 518 F.3d 1003, 1009\xe2\x80\x9310 (8th Cir. 2008) (\xe2\x80\x9cCongress in recent\nyears has taken repeated action to expedite removal proceedings and curb\nperceived abuses.\xe2\x80\x9d). As the Supreme Court has observed, granting motions\nto reopen \xe2\x80\x9ctoo freely\xe2\x80\x9d would undermine this interest by \xe2\x80\x9cpermit[ting]\nendless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie\ncase.\xe2\x80\x9d Abudu, 485 U.S. at 108 (internal quotation marks omitted); see\nalso Doherty, 502 U.S. at 323 (stating that motions to reopen are \xe2\x80\x9cespecially\xe2\x80\x9d disfavored \xe2\x80\x9cin a deportation proceeding, where, as a general matter,\nevery delay works to the advantage of the deportable alien who wishes\n7 The interest in ensuring that a lawyer\xe2\x80\x99s deficient performance does not undermine the\nfairness and accuracy of removal proceedings does not warrant, however, allowing a\nmotion to reopen based on the conduct of non-lawyers (except where an alien is represented by an accredited representative pursuant to 8 C.F.R. \xc2\xa7 1292.1(a)(4) or in the extraordinary case where an alien reasonably but erroneously believed that someone was a lawyer).\nThe reason is that lawyers and accredited representatives are governed by rules of professional conduct and have skills, including but not limited to knowledge of immigration\nlaws and procedures, that are directly related to furthering the interest that aliens and the\ngovernment have in fair and accurate immigration proceedings. See, e.g., Hernandez, 524\nF.3d at 1018\xe2\x80\x9319. The same cannot be said of non-lawyers, so-called \xe2\x80\x9cnotarios\xe2\x80\x9d and other\nunaccredited immigration consultants. See, e.g., Mendoza-Mazariegos v. Mukasey, 509\nF.3d 1074, 1077 n.4 (9th Cir. 2007) (\xe2\x80\x9c[T]he immigration system in this country is plagued\nwith \xe2\x80\x98notarios\xe2\x80\x99 who prey on uneducated immigrants.\xe2\x80\x9d); see also Executive Office for Immigration Review, U.S. Dep\xe2\x80\x99t of Justice, Notice, \xe2\x80\x9cNotarios,\xe2\x80\x9d Visa Consultants, and Immigration Consultants Are Not Attorneys (Nov. 20, 2008), http://www.usdoj.gov/eoir/press/\n08/NotariosNoticeProtectionsCAFINAL112008.pdf. Accordingly, the deficient performance claim established in this opinion extends only to the conduct of a lawyer, an\naccredited representative, or a non-lawyer the alien reasonably but erroneously believed to\nbe a lawyer and who was retained to represent the alien in the proceedings; it does not\nextend any further or to the conduct of an alien representing himself. Cf. Hernandez, 524\nF.3d at 1018\xe2\x80\x9319 (holding that an alien may not pursue an ineffective-assistance-of-counsel\nclaim with respect to the conduct of a non-lawyer).\n\n21\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nmerely to remain in the United States\xe2\x80\x9d); Betouche v. Ashcroft, 357 F.3d\n147, 150 (1st Cir. 2004) (\xe2\x80\x9cSince a delay in deportation may itself constitute\na substantial boon to an alien already subject to a final deportation order,\nthere exists a significant prospect that entirely meritless and/or collusive\nineffective assistance claims may be filed for purely dilatory purposes.\xe2\x80\x9d).\nThis concern is especially strong when an alien seeks reopening on the\nbasis of a lawyer\xe2\x80\x99s alleged deficient performance, because even a meritless\nmotion can succeed in tying up the system and postponing an alien\xe2\x80\x99s removal for months or even years based on the difficulties inherent in assessing and adjudicating a lawyer\xe2\x80\x99s performance after the fact. Federal\ncourts have observed that they are increasingly burdened by claims of\nlawyer error and have condemned \xe2\x80\x9cthe numerous groundless and dilatory\nclaims\xe2\x80\x9d of this sort that are \xe2\x80\x9croutinely submitted\xe2\x80\x9d to immigration judges\nand the Board. Betouche, 357 F.3d at 150.\nThe balancing of these competing considerations in addressing motions\nto reopen under the Act is committed to the discretion of the Attorney\nGeneral. See Abudu, 485 U.S. at 108, 110. I exercise that discretion in this\nopinion by identifying the general criteria to be used by the Board and\nimmigration judges in addressing motions to reopen based on claims of\ndeficient performance by counsel. At the same time, the Board and immigration judges retain considerable discretion in addressing such motions.\nWhether an alien has made a sufficient showing to warrant relief based on\ncounsel\xe2\x80\x99s allegedly deficient performance is, in each case, committed to the\ndiscretion of the Board or the immigration judge. And the Board and immigration judges retain discretion to deny relief in appropriate circumstances\neven if the prerequisites described below are satisfied, especially where the\nultimate relief sought is discretionary.\nIV.\nWith these competing interests in mind, I turn to the general framework\nthat the Board and immigration judges should apply henceforth when aliens\nseek to reopen removal proceedings based on a lawyer\xe2\x80\x99s deficient performance. To avoid confusion with what has heretofore been treated as a\nconstitutional claim of ineffective assistance of counsel, I will refer to the\n\n22\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nclaim recognized in this opinion as a \xe2\x80\x9cdeficient performance of counsel\xe2\x80\x9d\nclaim. 8\nIn establishing a framework for consideration of deficient performance\nclaims, I do not write on a blank slate. As noted, 20 years ago, in Lozada,\n19 I. & N. Dec. 637, the Board held (albeit based on erroneous constitutional underpinnings) that an alien may qualify for reopening of his removal\nproceedings based on lawyer error. To qualify for relief, the Board explained, an alien must establish that his lawyer\xe2\x80\x99s failings had been \xe2\x80\x9cegregious,\xe2\x80\x9d and that he had been prejudiced by his lawyer\xe2\x80\x99s performance. Id. at\n638\xe2\x80\x9339. In addition, the Board established three requirements, the so-called\nLozada factors, for reopening removal proceedings on grounds of lawyer\nerror. First, the alien must submit an affidavit \xe2\x80\x9cattesting to the relevant\nfacts,\xe2\x80\x9d including \xe2\x80\x9ca statement that sets forth in detail the agreement that\nwas entered into with former counsel with respect to the actions to be taken\n[in the litigation] and what counsel did or did not represent to the [alien] in\nthis regard.\xe2\x80\x9d Id. at 639. Second, \xe2\x80\x9cformer counsel must be informed of the\nallegations and allowed the opportunity to respond,\xe2\x80\x9d and that response, if\nany, must accompany the motion. Id. And third, \xe2\x80\x9cthe motion should reflect\nwhether a complaint has been filed with appropriate disciplinary authorities\nregarding such representation, and if not, why not.\xe2\x80\x9d Id.\nThe Lozada standards and requirements have largely stood the test of\ntime, but 20 years of experience has also revealed ways in which they can\nand should be improved. The administrative framework established today\nsupersedes that set forth in Lozada, but draws on its approach. Significantly, it is designed, as the framework in Lozada was, to enable the Board to\nresolve most deficient performance claims on the basis of the written\nrecord presented by the parties in connection with the motion without\n\n8 In the interest of national uniformity, the Board and immigration judges should apply\nthe framework set forth below in toto, even in circuits that have previously held that there\nis a constitutional right to effective assistance of counsel. That will allow those circuits to\nreconsider the question (en banc if necessary) more efficiently and easily, without the\nweight of the Board\xe2\x80\x99s 1988 Lozada precedent, which predated the majority of the relevant\njudicial decisions. If, notwithstanding my decision today, a court of appeals subsequently\nreaffirms (or decides in the first instance) that there is a constitutional right to effective\nassistance of counsel in removal proceedings, and that court\xe2\x80\x99s decision has become final\nand unreviewable, the Board and immigration judges will need to determine what elements\nof the framework may be implemented in that circuit consistent with the court\xe2\x80\x99s decision.\n\n23\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nhaving to remand to an immigration judge for fact-finding. See Patel v.\nGonzales, 496 F.3d 829, 831\xe2\x80\x9332 (7th Cir. 2007) (noting that the Lozada\nfactors were designed to \xe2\x80\x9creduce the potential for abuse by providing\ninformation from which the [Board] can assess whether an ineffective\nassistance claim has enough substance to warrant the time and resources\nnecessary to resolve the claim on its merits\xe2\x80\x9d). Evidentiary hearings before\nan immigration judge cannot always be avoided, but \xe2\x80\x9csuch hearings are an\nadded burden on both the parties and the Immigration Court, and they\nrarely assist in resolving the merits of the substantive immigration law\nissues presented by a particular case.\xe2\x80\x9d Matter of Rivera, 21 I. & N. Dec.\n599, 604 (BIA 1996). Consequently, the framework established today is\nintended, as Lozada was, to permit the Board to resolve the great majority\nof claims expeditiously on the basis of an alien\xe2\x80\x99s motion to reopen and\naccompanying documents alone. See id. (noting that the Board \xe2\x80\x9cprefer[s] to\nmake final determinations of ineffective assistance of counsel claims on the\ndocumentary submissions alone, where possible\xe2\x80\x9d); see also Betouche, 357\nF.3d at 150 (\xe2\x80\x9cThe immigration courts, which reasonably cannot be expected to conduct a full-fledged evidentiary hearing for all such claims,\nmust be able to impose fair and efficacious techniques for screening out, ab\ninitio, the numerous groundless and dilatory claims routinely submitted in\nthese cases.\xe2\x80\x9d).\nA.\nTo prevail on a deficient performance of counsel claim, an alien bears\nthe burden of establishing three elements.\n1.\nFirst, the alien must show that his lawyer\xe2\x80\x99s failings were \xe2\x80\x9cegregious,\xe2\x80\x9d\na requirement the Board recognized in Lozada, 19 I. & N. Dec. at 639. In\nlight of the strong public interest in finality and the rule that \xe2\x80\x9clitigants are\ngenerally bound by the conduct of their attorneys,\xe2\x80\x9d id., it is not enough\nmerely to demonstrate that one\xe2\x80\x99s lawyer made an ordinary mistake or could\nhave presented a more compelling case. Moreover, given the danger of\nsecond-guessing a lawyer\xe2\x80\x99s performance with \xe2\x80\x9cthe distorting effects of\nhindsight,\xe2\x80\x9d it is appropriate in making this assessment to apply a \xe2\x80\x9cstrong\npresumption that counsel\xe2\x80\x99s conduct falls within the wide range of reasona24\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nble professional assistance.\xe2\x80\x9d Strickland, 466 U.S. at 689. Requiring that\nthe error be \xe2\x80\x9cegregious,\xe2\x80\x9d and viewing the matter from counsel\xe2\x80\x99s perspective\nat the time, will help ensure that reopening is reserved for those extraordinary cases that truly warrant relief, and that relief is not granted simply\nbecause an alien shows after the fact that he received less than flawless\nrepresentation.\n2.\nSecond, in cases where the alien moves to reopen beyond the applicable\ntime limit\xe2\x80\x94typically 90 days from the date the removal order was entered\xe2\x80\x94the Board may exercise its discretion to allow tolling of the 90-day\nperiod, but only if the alien affirmatively shows that he exercised due\ndiligence in discovering and seeking to cure his lawyer\xe2\x80\x99s alleged deficient\nperformance. Cf., e.g., Barry v. Mukasey, 524 F.3d 721, 724\xe2\x80\x9325 (6th Cir.\n2008) (holding that the reopening deadline may be equitably tolled in cases\ninvolving a lawyer\xe2\x80\x99s deficient performance, provided that the alien shows\ndue diligence); Zhao v. INS, 452 F.3d 154, 157\xe2\x80\x9358 (2d Cir. 2006) (same).\n\xe2\x80\x9cDue diligence requires an alien to prove that the delay in filing the motion\nto reopen was due to an exceptional circumstance beyond his control.\xe2\x80\x9d\nTapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir. 2007) (quotation\nmarks omitted). In deficient performance cases, this will typically require\nthat the alien prove he made timely inquiries about his immigration status\nand the progress of his case. It will also typically require that the alien\npromptly file a motion to reopen within a reasonable period after discovering his lawyer\xe2\x80\x99s deficient performance.\nThere is no bright line for determining when a particular delay is too\nlong. Instead, the Board should evaluate due diligence on a case-by-case\nbasis, taking into account the circumstances of the case and the reasons\noffered for any delay. The Board should perform this evaluation by determining objectively when a reasonable person should have discovered the\npossibility that he had been victimized by the lawyer\xe2\x80\x99s deficient performance, and when a reasonable person would have taken steps to cure it\nfollowing discovery. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000)\n(stating that the test is whether the lawyer\xe2\x80\x99s error was, \xe2\x80\x9cor should have\nbeen, discovered by a reasonable person in the situation\xe2\x80\x9d); Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (asking \xe2\x80\x9cwhether a reasonable\n25\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nperson in the plaintiff\xe2\x80\x99s position would have been aware of the possibility\nthat he had suffered an injury\xe2\x80\x9d) (internal quotation marks omitted). The\ndetermination of whether the facts and circumstances warrant tolling of the\nfiling period is\xe2\x80\x94like the decision on a motion to reopen based on counsel\xe2\x80\x99s\nallegedly deficient performance itself\xe2\x80\x94committed in all instances to the\ndiscretion of the Board.\n3.\nThird, as the Board and courts of appeals uniformly have held, an alien\nmust establish prejudice arising from the lawyer\xe2\x80\x99s errors. See Lozada, 19\nI. & N. Dec. at 638; cf. Strickland, 466 U.S. at 691 (\xe2\x80\x9cAn error by counsel,\neven if professionally unreasonable, does not warrant setting aside the\njudgment of a criminal proceeding if the error had no effect on the judgment.\xe2\x80\x9d).\nThe proper standard of prejudice to apply, however, is a crucial question\non which even the courts of appeals that have recognized a constitutionally\nbased claim of ineffective assistance have not spoken consistently. Some\ncourts apply a strict standard. See, e.g., Sako v. Gonzales, 434 F.3d 857,\n864 (6th Cir. 2006) (holding that an alien \xe2\x80\x9cmust establish that, but for the\nineffective assistance of counsel, he would have been entitled to continue\nresiding in the United States\xe2\x80\x9d). Other courts apply a standard similar to the\none the Supreme Court established in Strickland for Sixth Amendment\nineffective-assistance-of-counsel claims, namely \xe2\x80\x9ca reasonable probability\nthat, but for counsel\xe2\x80\x99s professional errors, the result of the proceeding\nwould have been different.\xe2\x80\x9d See, e.g., Fadiga, 488 F.3d at 159. And one\ncourt\xe2\x80\x94the Ninth Circuit\xe2\x80\x94deems the prejudice requirement satisfied as\nlong as the alien can show \xe2\x80\x9cplausible grounds for relief\xe2\x80\x9d on the underlying\nclaim. Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005).\nI conclude that to establish prejudice arising from a lawyer\xe2\x80\x99s deficient\nperformance sufficient to permit reopening, an alien must show that but for\nthe deficient performance, it is more likely than not that the alien would\nhave been entitled to the ultimate relief he was seeking. In doing so, I\nborrow from the standard commonly applied by the federal courts, in both\ncivil and criminal proceedings, to motions for a new trial based on newly\ndiscovered evidence. See, e.g., Environmental Barrier Co., LLC v. Slurry\nSys., Inc., 540 F.3d 598, 608 (7th Cir. 2008); United States v. Johnson, 519\n26\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nF.3d 478, 487 (D.C. Cir. 2008). The Supreme Court itself has described\nsuch motions as \xe2\x80\x9cthe appropriate analogy\xe2\x80\x9d to motions to reopen removal\nproceedings. Abudu, 485 U.S. at 110; accord Doherty, 502 U.S. at 323.\nAnd as the Court explained, \xe2\x80\x9c[t]he reasons why motions to reopen are\ndisfavored in deportation proceedings are comparable to those that apply to\n. . . motions for new trials on the basis of newly discovered evidence. There\nis a strong public interest in bringing litigation to a close as promptly as is\nconsistent with the interest in giving the adversaries a fair opportunity to\ndevelop and present their respective cases.\xe2\x80\x9d Abudu, 485 U.S. at 107 (footnote omitted).\nIn my judgment, the \xe2\x80\x9cmore likely than not\xe2\x80\x9d standard is more appropriate\nthan Strickland\xe2\x80\x99s \xe2\x80\x9creasonable probability\xe2\x80\x9d standard. See Kyles v. Whitley,\n514 U.S. 419, 434 (1995) (recognizing that a \xe2\x80\x9cmore likely than not\xe2\x80\x9d standard is more demanding than a \xe2\x80\x9creasonable probability\xe2\x80\x9d standard). The\nStrickland standard, after all, was intended to vindicate a criminal defendant\xe2\x80\x99s constitutional right to effective assistance of counsel. Here, as discussed, there is no constitutional right to effective assistance of counsel, so\nthe alien\xe2\x80\x99s interests relative to the public interest in finality are correspondingly weaker. It follows that the \xe2\x80\x9cmore likely than not\xe2\x80\x9d standard is also\nmore appropriate than the Ninth Circuit\xe2\x80\x99s \xe2\x80\x9cplausible grounds for relief\xe2\x80\x9d\nstandard. Indeed, even Strickland rejected a comparable standard, explaining that \xe2\x80\x9c[v]irtually every act or omission of counsel would meet that test,\nand not every error that conceivably could have influenced the outcome\nundermines the reliability of the result of the proceeding.\xe2\x80\x9d 466 U.S. at 693.\nIn short, the \xe2\x80\x9cmore likely than not\xe2\x80\x9d standard best reflects and protects the\nstrong public interest in ensuring the finality of removal proceedings while\nstill providing a safety valve for those cases in which an alien was demonstrably harmed by his lawyer\xe2\x80\x99s egregious performance.\nAs noted, this standard of prejudice requires the alien to establish the\nprobability that, but for his lawyer\xe2\x80\x99s error, he would have been entitled to\nthe ultimate relief he was seeking. In most cases, this will require a showing that, but for the lawyer\xe2\x80\x99s error, the alien likely would have been entitled\nto continue residing in the United States. Hence, an alien cannot prevail on\na claim that, for example, his lawyer was wrong in failing to request a\ncontinuance simply by showing that he likely would have been granted a\ncontinuance. Instead, he must show that, but for the lawyer\xe2\x80\x99s failing, he\nlikely would have succeeded on the merits of his underlying claim to re27\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nmain in the United States. And in cases where discretionary relief is at\nissue, an alien must present evidence that not only establishes he was\neligible for relief, but also that he believes would have led to a favorable\nexercise of discretion.\nThis is a common-sense requirement: If the alien would have been denied discretionary relief had the merits been adjudicated, there can have\nbeen no prejudice arising from an error that led to the agency\xe2\x80\x99s failure to\nreach the merits. Moreover, because an alien who seeks only discretionary\nrelief is removable, and because the request to reopen is itself discretionary, the Board may properly insist upon a clear showing that discretionary\nrelief would have been granted if the merits had been adjudicated. This also\nwill enable the Board to address some claims of lawyer error more efficiently, because it \xe2\x80\x9cmay leap ahead, as it were, over the . . . threshold\nconcerns . . . and simply determine that even if they were met, the movant\nwould not be entitled to the discretionary grant of relief.\xe2\x80\x9d Abudu, 485 U.S.\nat 105. 9\nB.\nTo enable the Board to determine if these standards have been met, an\nalien who seeks reopening of removal proceedings based on his lawyer\xe2\x80\x99s\ndeficient performance also must submit certain documents in support of his\nmotion. In particular, he must submit a detailed affidavit setting forth the\nfacts that form the basis of the deficient performance of counsel claim. The\naffidavit must explain with specificity what his lawyer did or did not do,\nand why he, the alien, was harmed as a result. As the First Circuit has\nexplained, \xe2\x80\x9cthe requirement of a sworn affidavit, presaging and memorializing the testimony which the alien petitioner would present were he to be\naccorded a hearing, produces the primary evidentiary basis upon which the\n[agency] evaluates the bona fides of the petitioner\xe2\x80\x99s claim in determining\nwhether a hearing is even warranted.\xe2\x80\x9d Betouche, 357 F.3d at 150. Moreover, \xe2\x80\x9cby exposing an alien to the potential pains of perjury, the affidavit\nrequirement foster[s] an atmosphere of solemnity commensurate with the\ngravity of the . . . claim, and serves as a screening device whereby deporta9 It bears mentioning that many of the federal courts that have recognized constitutional\nclaims to ineffective assistance of counsel in removal proceedings have not even permitted\nsuch claims where the relief sought is discretionary. See supra note 4.\n\n28\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nble aliens are discouraged from filing dilatory ineffective assistance\nclaims.\xe2\x80\x9d Id. (internal quotation marks omitted).\nIn addition to the alien\xe2\x80\x99s affidavit, the alien must attach five documents\nor sets of documents to his motion. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather\nthan nonexistent, the alien must summarize the document\xe2\x80\x99s contents in his\naffidavit.\n1.\nFirst, the alien must attach a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient. Where there was no\nwritten agreement, the alien must specify in his affidavit what the lawyer\nhad agreed to do, including whether it included the particular step in the\nproceedings in which the deficient performance is alleged to have occurred.\nThis requirement will enable the Board to determine whether the alleged\nerror was actually within the scope of the lawyer\xe2\x80\x99s representation. After all,\nthe mere fact that a lawyer failed to do something\xe2\x80\x94for example, file a\npetition for review\xe2\x80\x94does not, by itself, establish that the lawyer\xe2\x80\x99s conduct\nwas deficient, because the alien may not have retained the lawyer for that\npurpose. See Lozada, 19 I. & N. Dec. at 639 (noting that the alien \xe2\x80\x9chas not\nalleged, let alone established, that former counsel ever agreed to prepare a\nbrief on appeal or was engaged to undertake the task\xe2\x80\x9d); see also, e.g.,\nBeltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (holding that the\npetitioner\xe2\x80\x99s motion to reopen had a \xe2\x80\x9cfatal flaw\xe2\x80\x9d in that it \xe2\x80\x9cmakes no mention of the nature, scope, or substance of the petitioner\xe2\x80\x99s arrangement with\n[his lawyer], nor does it indicate what communications the petitioner had\nwith the attorney over the years\xe2\x80\x9d).\n2.\nSecond, the alien must attach both a copy of a letter to his former lawyer\nsetting forth the lawyer\xe2\x80\x99s deficient performance and a copy of the lawyer\xe2\x80\x99s\nresponse, if any. (If the alien never received a response from his former\nlawyer, his affidavit must note the date on which he mailed his letter and\nstate whether he made any other efforts to notify the lawyer.) The letter\nfrom the alien must suffice to put the lawyer on notice that the alien intends\nto file a deficient performance claim and to inform the lawyer of the facts\n29\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nthat the alien alleges in support of the claim. This requirement gives the\nformer lawyer\xe2\x80\x94whose professional competence is being questioned\xe2\x80\x94an\nopportunity to present his side of the story, and helps to ensure that the\nBoard has the facts necessary to render an informed judgment. As the\nBoard recognized in Lozada, this requirement also has the effect of \xe2\x80\x9cdiscouraging baseless accusations\xe2\x80\x9d because \xe2\x80\x9cthe potential for abuse is apparent where no mechanism exists for allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he\nso chooses.\xe2\x80\x9d 19 I. & N. Dec. at 639.\n3.\nThird, the alien must attach a completed and signed complaint addressed\nto the appropriate state bar or disciplinary authorities. 10 This requirement,\nlike the preceding one, discourages baseless accusations and collusion,\nbecause it is one thing to file a motion that, even if denied, has the effect of\ndelaying removal and another thing altogether to back that motion with the\nweight of a disciplinary complaint. See Assaad, 23 I. & N. Dec. at 556\n(noting that the \xe2\x80\x9cbar complaint requirement acts as a protection against\ncollusion between counsel and client to achieve delay in proceedings\xe2\x80\x9d). As\nthe Board has explained, the requirement \xe2\x80\x9cincreases our confidence in the\nvalidity of the particular claim, reduces the likelihood that an evidentiary\nhearing will be needed, and serves our long-term interests in monitoring the\nrepresentation of aliens by the immigration bar.\xe2\x80\x9d Id.; cf. 65 Fed. Reg. at\n39,514\xe2\x80\x9315; 73 Fed. Reg. at 76,915.\nIt should be noted that, under this requirement, the alien need not actually file the complaint with the appropriate state bar or disciplinary authorities, as Lozada had required. By making the actual filing of a bar complaint\na prerequisite for obtaining (or even seeking) relief, it appears that Lozada\nmay inadvertently have contributed to the filing of many unfounded or\nWhere a deficient performance claim is based on the conduct of an accredited representative, see 8 C.F.R. \xc2\xa7 1292.1(a)(4) (permitting aliens appearing before the Board to be\nrepresented by an accredited representative); cf. Matter of Zmijewska, 24 I. & N. Dec. 87,\n94 (BIA 2007) (holding that the Lozada framework applies to accredited representatives),\nthe alien must instead attach a complaint addressed to the Executive Office for Immigration\nReview disciplinary counsel, because such accredited representatives are subject to disciplinary action under the Executive Office for Immigration Review\xe2\x80\x99s professional conduct\nregulations.\n10\n\n30\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\neven frivolous complaints. See, e.g., Comment filed by the Committee on\nImmigration & Nationality Law, Association of the Bar of the City of New\nYork (Sept. 29, 2008), in response to the Proposed Rule for Professional\nConduct for Practitioners\xe2\x80\x94Rules and Procedures, and Representation and\nAppearances, 73 Fed. Reg. 44,178 (July 30, 2008) (\xe2\x80\x9cUnder the Lozada\nRule, an ineffective assistance of counsel charge is often required in order\nto reopen a case or reverse or remand an unfavorable decision. The practice\nof filing such claims is rampant, and places well-intentioned and competent\nattorneys at risk of discipline.\xe2\x80\x9d). Such unfounded complaints impose costs\non well-intentioned and competent attorneys, and make it harder for state\nbars to identify meritorious complaints in order to impose sanctions on\nlawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the alien submit to the\nBoard a completed and signed but unfiled complaint, and leaving it to the\nBoard whether to refer the complaint to the state bar or to the Executive\nOffice for Immigration Review disciplinary counsel for further action. 11\n4.\nFourth, if the alien\xe2\x80\x99s claim is that his former lawyer failed to submit\nsomething to the immigration judge or to the Board, he must attach the\nallegedly omitted item to his motion. For example, if the alien\xe2\x80\x99s claim is\nthat his former lawyer failed to submit a brief to the Board, he must submit,\nin substance and detail if not in form, a copy of the brief that he alleges\nshould have been filed. If the alien\xe2\x80\x99s claim is that his former lawyer failed\nto introduce certain evidence or testimony, he must submit that evidence\n(directly in the case of physical or documentary evidence and through a\nwitness\xe2\x80\x99s affidavit in the case of testimony) to the Board. Moreover, the\nalien must explain in his affidavit whether he told his former lawyer about\nthe evidence or testimony in question, and if not, why not.\nRequiring aliens to submit such material to the Board will reduce delays\nand promote finality by ensuring that the Board can resolve most deficient\nperformance claims without remanding for evidentiary hearings. In addition, requiring proof that an alien told his lawyer about evidence or testi11 Of course, nothing prevents an alien, should he choose to do so, from filing his complaint with the state bar and with the Board. Prior filing of a complaint with the state bar\nsimply is not a requirement for the motion to reopen.\n\n31\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nmony\xe2\x80\x94or had a good reason for failing to do so\xe2\x80\x94is common sense. After\nall, if an alien never shared the existence of certain evidence or testimony\nwith his lawyer, it is difficult to fault the lawyer for failing to submit that\nevidence or testimony to the immigration judge.\n5.\nFifth and finally, where an alien is represented by counsel in seeking reopening, the motion for reopening shall contain the following signed statement of the new attorney: \xe2\x80\x9cHaving reviewed the record, I express a belief,\nbased on a reasoned and studied professional judgment, that the performance of my client\xe2\x80\x99s former counsel fell below minimal standards of\nprofessional competence.\xe2\x80\x9d 12 This requirement\xe2\x80\x94which is analogous to court\nof appeals rules requiring lawyers to attest to the existence of circuit splits\nor to questions of exceptional importance in petitions for rehearing en banc,\nsee, e.g., Third Circuit Rule 35.1 (2008); Federal Circuit Rule 35(b)\n(2008)\xe2\x80\x94will further discourage meritless claims by serving as a reminder\nthat challenges to the performance of another lawyer should not be made\nlightly.\nC.\nThe legal standards set forth in Part IV.A and the evidentiary requirements set forth in Part IV.B are mandatory. That is, to be eligible for a\nfavorable exercise of discretion based on a deficient performance claim, an\nalien must comply with all requirements that apply. Excusing an alien from\ncompliance with a particular requirement, or deeming \xe2\x80\x9csubstantial compliance\xe2\x80\x9d adequate (as several courts of appeals have done with respect to the\n12 A lawyer may not bypass this requirement by preparing a motion to reopen for the\nalien and then having the alien file the motion pro se. Cf. 8 C.F.R. \xc2\xa7 1001.1(i) (2008)\n(defining the term \xe2\x80\x9cpractice\xe2\x80\x9d to mean \xe2\x80\x9cthe act or acts of any person appearing in any case,\neither in person or through the preparation or filing of any brief or other document, paper,\napplication, or petition on behalf of another person or client\xe2\x80\x9d) (emphasis added); id.\n\xc2\xa7 1001.1(k) (defining the term \xe2\x80\x9cpreparation, constituting practice,\xe2\x80\x9d to mean \xe2\x80\x9cthe study of\nthe facts of a case and the applicable laws, coupled with the giving of advice and auxiliary\nactivities, including the incidental preparation of papers\xe2\x80\x9d) (emphasis added). I also note that\nthis requirement to acknowledge the deficient performance of counsel in the prior proceedings is applicable even where the same attorney continues to represent the alien in seeking\nto reopen the proceedings based on his own prior deficient performance.\n\n32\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nLozada factors, see, e.g., Reyes v. Ashcroft, 358 F.3d 592, 597\xe2\x80\x9399 (9th Cir.\n2004)), would hinder the development of a complete record, making it\nmore difficult for the government to respond and more difficult for the\nBoard to adjudicate the case. It also would undermine the Board\xe2\x80\x99s (and the\nbar\xe2\x80\x99s) efforts to monitor the quality of representation before the immigration courts. Finally, excusing compliance in some cases would create\nuncertainty as to when a requirement will be enforced and when it will be\nwaived. Of course, even if an alien complies with all applicable requirements, the Board is not compelled to reopen proceedings, as reopening\nultimately is discretionary. See, e.g., Doherty, 502 U.S. at 323.\nD.\nFinally, it bears noting that the Board\xe2\x80\x99s discretion to reopen on the basis\nof a lawyer\xe2\x80\x99s deficient performance is not limited to conduct that occurred\nduring the agency proceedings. The Board may reopen on the basis of\ndeficient performance that occurred subsequent to the entry of a final order\nof removal. 13\nIn reaching this conclusion, I recognize that, in reviewing claims under\nthe Lozada framework, the Board has not spoken consistently on the\nquestion of when deficient performance must occur to permit reopening.\nSee Afanwi, 526 F.3d at 795\xe2\x80\x9396 (noting that the Board \xe2\x80\x9chas issued contradictory opinions on the subject\xe2\x80\x9d and citing cases). I recognize also that\nthe courts of appeals have taken conflicting views. Compare Dearinger ex\nrel. Volkova v. Reno, 232 F.3d 1042, 1044 n.4 (9th Cir. 2000) (\xe2\x80\x9cA claim of\nineffective assistance of counsel occurring after the [Board] has ruled may\nIn cases involving claims of this sort, it is not uncommon for the alien to allege that\nhis lawyer never notified him of the Board\xe2\x80\x99s decision in his case. To ensure that aliens\nreceive notice of decisions in their cases and to forestall unfounded allegations that they did\nnot, I have directed the Executive Office for Immigration Review to begin sending courtesy\ncopies of final Board decisions to the aliens themselves in addition to sending them to the\naliens\xe2\x80\x99 lawyers. The Executive Office for Immigration Review intends to do so beginning\nMarch 1, 2009. See Executive Office for Immigration Review, News Release, Board to\nBegin Providing Copy of Decision to Aliens Who Are Represented by Counsel (Dec. 19,\n2008), http://www.usdoj.gov/eoir/press/08/BIAProvidesCourtesyCopy121908.pdf. After\nthat date, aliens will be presumed to have received personal notice of the Board\xe2\x80\x99s decision\n(in addition to notice through counsel) if it was sent to the most recent address the alien\nprovided to the Executive Office for Immigration Review, as required by 8 C.F.R.\n\xc2\xa7 1003.15(d) (2008).\n13\n\n33\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nbe raised with the [Board] by filing a motion to reopen.\xe2\x80\x9d), and Gjondrekaj\nv. Mukasey, 269 F. Appx. 106, 108 (2d Cir. 2008) (remanding where the\nalien\xe2\x80\x99s lawyer missed the petition for review filing deadline, and holding\nthat \xe2\x80\x9cto the extent the [Board] here concluded that it could not grant reopening or reissuance absent some error by the agency or ineffective assistance before the agency, it failed to apply the correct law\xe2\x80\x9d), with Afanwi,\n526 F.3d at 795\xe2\x80\x9396 (holding that the Board \xe2\x80\x9cdoes not have jurisdiction\nover an ineffective assistance claim arising out of an alien\xe2\x80\x99s counsel\xe2\x80\x99s\nfailure to file a timely petition for review with the court of appeals\xe2\x80\x9d).\nIn my judgment, the better view, and the one I adopt today, is that the\nBoard has jurisdiction to consider deficient performance claims even where\nthey are predicated on lawyer conduct that occurred after a final order of\nremoval has been entered. The Board has broad discretion to reopen removal proceedings, and nothing in the statute or the regulations limits the\ngrounds for reopening to events that occurred before the agency or prior to\nthe entry of the final administrative order of removal. See Firmansjah v.\nAshcroft, 347 F.3d 625, 627 (7th Cir. 2003) (explaining, in a case where the\nalien\xe2\x80\x99s lawyer had missed the petition-for-review filing deadline, that \xe2\x80\x9c[t]he\nBoard of Immigration Appeals . . . has authority to reopen and revise its\ndecisions on account of new developments\xe2\x80\x9d and \xe2\x80\x9cnothing prevents the\nBoard from entering a new removal order, which is subject to a fresh petition for review\xe2\x80\x9d). In holding otherwise, the Fourth Circuit in Afanwi relied\non 8 C.F.R. \xc2\xa7 1003.1(d)(3)(ii) to conclude that the Board\xe2\x80\x99s jurisdiction is\nlimited to \xe2\x80\x9cquestions of law, discretion, and judgment and all other issues\nin appeals from decisions of immigration judges.\xe2\x80\x9d 526 F.3d at 795\xe2\x80\x9396. But\nthat regulation addresses only the scope and standard of review by the\nBoard. It does not purport to restrict the Board\xe2\x80\x99s jurisdiction or to limit the\nBoard\xe2\x80\x99s broad authority to reopen removal proceedings.\nDeficient performance claims based on conduct that occurred after entry\nof a final order of removal shall be evaluated under the standards set forth\nin this opinion for all deficient performance claims. Thus, an alien must\ncomply with the filing requirements set forth in Part IV.B, and must establish, among other things, that, but for the deficient performance, it is more\nlikely than not that he would have been entitled to the ultimate relief he\nwas seeking, as provided in Part IV.A. It is beyond the scope of this opinion to identify all the situations in which reopening after entry of a final\norder of removal may be warranted. There are, however, some situations in\n34\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nwhich it clearly would be unwarranted, such as when the deficient performance claim involved the quality of a lawyer\xe2\x80\x99s briefs or arguments before a\ncourt of appeals\xe2\x80\x94that is, when the claim involved conduct in proceedings\nconducted well after the administrative order of removal became final, in a\nseparate tribunal in a separate branch of government.\nV.\nBefore evaluating the Board\xe2\x80\x99s orders in the instant cases, it is necessary\nto address one final matter: how, if at all, the framework announced in this\nopinion should be applied to motions to reopen (including the three at issue\nhere) that were filed prior to this opinion. The general rule is that an agency\nor court should apply the law in effect at the time that it renders its decision. See Bradley v. Richmond Sch. Bd., 416 U.S. 696, 716 (1974); see also\nMeghani v. INS, 236 F.3d 843, 846 (7th Cir. 2001). In light of that rule, the\nBoard and immigration judges should apply the substantive standards set\nforth in Part IV.A above to motions to reopen based on a lawyer\xe2\x80\x99s deficient\nperformance, regardless of when such motions were filed. It would be\nunfair, however, to apply the new filing requirements set forth in Part IV.B\nto such motions, since aliens may have filed them in good faith reliance on\nLozada. See Bradley, 416 U.S. at 720 (stating that changes in the law\nshould not be applied to pending cases where those changes would result in\nthe imposition of \xe2\x80\x9cnew and unanticipated obligations\xe2\x80\x9d without adequate\nnotice). Accordingly, I hold that the Board and immigration judges should\napply the new filing requirements only with respect to motions filed after\ntoday; with respect to motions filed prior to this opinion, they should\ncontinue to apply the Lozada factors. 14\nWith respect to the instant cases, then, the substantive standards set forth\nin Part IV.A above apply, but the new filing requirements set forth in Part\nIV.B do not. Applying those rules, I affirm the Board\xe2\x80\x99s decisions denying\nrespondents\xe2\x80\x99 motions to reopen.\nIn Matter of Compean, respondent\xe2\x80\x99s motion was without merit for three\nreasons. First, applying the substantive standards set forth in this opinion,\nGiven the potential delay between signing this opinion and its publication, it may be\nunreasonable to expect aliens to comply with the new filing requirements immediately.\nAccordingly, the Board and immigration judges may allow amendment of motions filed in\nthe next few weeks to comply with the new filing requirements.\n14\n\n35\n\n\x0c33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.)\n\nrespondent has failed to establish either that his former lawyer committed\nan \xe2\x80\x9cegregious\xe2\x80\x9d error or that he was prejudiced by any deficiencies in the\nlawyer\xe2\x80\x99s conduct. As noted, respondent\xe2\x80\x99s self-described \xe2\x80\x9cmost important\xe2\x80\x9d\nclaim was that his former lawyer had failed to submit his Form I-130 visa\npetition to the Immigration Judge, but that form was in fact part of the\nrecord. Thus, he has shown neither that his lawyer\xe2\x80\x99s actions were egregious\nnor that, but for his lawyer\xe2\x80\x99s performance, it is more likely than not that\nhe would have established the \xe2\x80\x9cexceptional and extremely unusual hardship\xe2\x80\x9d required for cancellation of removal. INA \xc2\xa7 240A(b)(1)(D), 8 U.S.C.\n\xc2\xa7 1229b(b)(1)(D). The Board therefore properly denied respondent\xe2\x80\x99s motion to reopen on the ground that he had failed to establish prejudice. Finally, as the Board noted, respondent failed to comply with Lozada\xe2\x80\x99s requirement of filing a disciplinary complaint. Under Lozada, that alone warranted\ndenial of his motion.\nIn Matter of Bangaly, respondent\xe2\x80\x99s motion was properly denied on either\nof two grounds. First, under Lozada (as under the new requirements set\nforth in this opinion), respondent was required to give his former lawyer\nnotice of his alleged deficiencies and a chance to respond. As discussed\nabove, such notice is important because it discourages baseless claims and\nbecause it makes it more likely that the Board can address the motion\nwithout the need to remand for a hearing. Yet, as the Board found, respondent failed to show that he complied with this requirement. Second,\nrespondent has failed to show prejudice under the standard announced in\nthis opinion. His motion to reopen was premised on his former lawyer\xe2\x80\x99s\nfailure to file a brief with the Board appealing the Immigration Judge\xe2\x80\x99s\ndenial of an additional continuance. But neither here nor before the Board\nhas respondent made any effort to show that, had his lawyer filed a brief,\nhe likely would have obtained the continuance, let alone that he likely\nwould have been permitted to remain in the United States.\nIn Matter of J-E-C-, unlike the other two cases, respondents appear to\nhave complied with the Lozada factors. Nevertheless, respondents\xe2\x80\x99 motion\nwas properly denied for failure to establish prejudice. Among other things,\nthe Board addressed the merits of each of the four points of error identified\nin respondents\xe2\x80\x99 notice of appeal before it affirmed the Immigration Judge\xe2\x80\x99s\n\xe2\x80\x9cthorough and well-reasoned decision\xe2\x80\x9d (Apr. 8, 2008). The Board also\nconsidered the brief submitted by respondents\xe2\x80\x99 new lawyer and found it\nunpersuasive, thus \xe2\x80\x9caffirming . . . that the respondent[] did not suffer prej36\n\n\x0cAssistance of Counsel in Removal Proceedings ( I )\n\nudice\xe2\x80\x9d from the failure of his former lawyer to file an appellate brief. Id.\nUnder the standard of prejudice adopted in this opinion, the Board\xe2\x80\x99s decision was correct.\nVI.\nIn sum, for the reasons stated above, I overrule Lozada and Assaad to the\nextent they are inconsistent with the constitutional conclusions in this\nopinion, and I affirm the Board\xe2\x80\x99s decisions denying reopening in each of\nthe matters before me.\nMICHAEL B. MUKASEY\nAttorney General\n\n37\n\n\x0c'