United States Court of Appeals
For the First Circuit
No. 02-2518
SELIM BETOUCHE,
Petitioner,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Oberdorfer*, Senior District Judge.
Saher Joseph Macarius was on brief for petitioner.
Joshua E. Braunstein, Attorney, Peter D. Keisler, Assistant
Attorney General, and Emily Anne Radford, Assistant Director, were
on brief for respondent.
February 12, 2004
*
Of the United States District Court for the District of
Columbia, sitting by designation.
CYR, Senior Circuit Judge. Petitioner-appellant Selim
Betouche challenges various rulings by the Board of Immigration
Appeals (BIA) declining to reopen the proceedings relating to his
asylum application, in which he claimed that he received
ineffective assistance of counsel and that conditions in his native
Algeria have deteriorated since the entry of the final deportation
order. We affirm.
I
BACKGROUND
Betouche, a citizen and native of Algeria, entered the
United States in July 1996 on a three-month visa and remained
beyond its expiration. In due course, the Immigration and
Naturalization Service (INS) lodged a removability charge, and
Betouche retained Desmond Fitzgerald, Esquire, to litigate the
applications for asylum and withholding of deportation.1 On August
13, 1998, an immigration judge (IJ) denied the applications for
asylum and withholding, and found Betouche removable. Two days
after the deadline, Attorney Fitzgerald filed a belated appeal to
the BIA, which was summarily denied as untimely.
In May 2002, Betouche submitted a motion to reopen his
case before the IJ, contending that political conditions in Algeria
1
As its lone ground, the asylum application contended that,
since at least 1992, members of Algeria’s Islamic fundamentalist
party had killed, assaulted or threatened members of the pro-
Western socialist party to which Betouche allegedly belonged.
-2-
had changed since August 1998. The IJ denied the motion on the
ground that Betouche failed to adduce any evidence of "materially
changed" conditions.
Betouche retained new counsel, who appealed to the BIA
and moved to reopen on the ground that Attorney Fitzgerald had
rendered ineffective assistance of counsel in 1998 by filing the
Betouche appeal two days late with the BIA, thereby resulting in
its dismissal. The petition to reopen further alleged that
Attorney Fitzgerald deliberately concealed the BIA dismissal from
Betouche for more than three years.
In rejecting the appeal, the BIA (i) upheld the IJ’s
finding that Betouche had adduced no evidence of “changed
conditions” in Algeria, and (ii) turned down his “ineffective
assistance” claim for failure to adduce either an affidavit
describing the terms under which Betouche retained Attorney
Fitzgerald, or any evidence that Betouche had notified Attorney
Fitzgerald either as to his "ineffective assistance" allegations or
his September 2002 complaint to the Massachusetts Board of Bar
Overseers. Betouche has petitioned to review both BIA rulings.
II
DISCUSSION
A. The Ineffective Assistance of Counsel Claim
Deportable aliens possess a Fifth Amendment due process
right to be free from incompetent legal representation which
-3-
renders their deportation proceedings “fundamentally unfair.”
Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001); see also 8
U.S.C. § 1362 (according aliens right to counsel at their expense).
The BIA denied the ineffective assistance claim due to Betouche's
failure to comply with the first two of the three following BIA
procedural requirements applicable to such claims: (1) an affidavit
describing in detail the agreement between the alien and his
counsel regarding the litigation matters the attorney was retained
to address; (2) evidence that the alien informed his counsel as to
the alien's ineffective assistance allegations and afforded counsel
an opportunity to respond; and (3) evidence that the alien had
either filed a complaint with the appropriate disciplinary
authority regarding the attorney’s ethical or legal misfeasance, or
a valid excuse for failing to lodge such a complaint. Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (“Lozada”).2
On appeal, Betouche contends that he complied with the
2
In light of the unanimous adverse precedent, Betouche has not
challenged the BIA’s exercise of its discretion to insist, in a
non-arbitrary manner, upon the Lozada requirements as a
precondition to an alien’s submission of an ineffective assistance
claim. See Hernandez, 238 F.3d at 55 (expressing approval of
Lozada requirements); see also Hamid v. Ashcroft, 336 F.3d 465,
468-69 (6th Cir. 2003) (endorsing Lozada); Xu Yong Lu v. Ashcroft,
259 F.3d 127, 133 (3d Cir. 2001) (same); Lara v. E.M. Trominski,
216 F.3d 487, 497-98 (5th Cir. 2000) (same); Lata v. INS, 204 F.3d
1241, 1245-46 (9th Cir. 2000) (same); Stewart v. INS, 181 F.3d 587,
596 (4th Cir. 1999) (same).
-4-
Lozada criteria in full.3 The BIA ruling rejecting the motion to
reopen is reviewed only for an abuse of discretion. See Zhang v.
INS, 348 F.3d 289, 292 (1st Cir. 2003). We find none.
Betouche conveniently assumes that the September 10, 2002
letter, which he submitted to the Board of Bar Overseers, met the
Lozada affidavit requirement.4 However, an unsworn letter plainly
cannot qualify as an affidavit in a proceeding such as this. See,
e.g., Mason v. Clark, 920 F.2d 493, 495 (8th Cir. 1990) (“By
definition an affidavit is a ‘sworn statement in writing made . .
. under oath or on affirmation before . . . an authorized
3
Betouche belatedly asserts that the BIA abused its
discretion, given that he “substantially” complied with the Lozada
requirements. As this contention was first raised in his reply
brief on appeal, it has been forfeited. See Andresen v. Diorio,
349 F.3d 8, 13 (1st Cir. 2003).
4
The Betouche letter states:
I would like to file a complaint against Attorney
Desmond P. Fitzgerald. I had hired [his] law firm ... in
connection with all of my immigration matters. I had
applied for political asylum and my case was denied on
August 13, 1998. A Notice of Appeal must be filed with
the [BIA] within 30 days of the [IJ’s] decision.
However, Attorney Fitzgerald missed the deadline for
filing my appeal with the [BIA], as it was filed on
September 16, 1998. . . . Thereafter, my appeal was
denied because it was deemed to have been untimely filed.
I have been denied my due process rights to appeal my
case due to this error. My case was summarily dismissed
without considering its merits.
Attorney Fitzgerald never told me that my case for
asylum was dismissed because he had filed late. I was
under the impression that my appeal was still pending
until I was arrested by INS for having Final Order of
Deportation.
-5-
officer.’”) (citation omitted); Howland v. Cape Cod Bank and Trust
Co., 526 N.E.2d 1073, 1074 (Mass. App. Ct. 1988) (same).5
Nor can such a deficiency be considered a mere
technicality, given that Lozada advanced important policy reasons
for insisting upon the submission of a sworn statement. Since a
delay in deportation may itself constitute a substantial boon to an
alien already subject to a final deportation order, there exists a
significant prospect that entirely meritless and/or collusive
ineffective assistance claims may be filed for purely dilatory
purposes. See Hernandez, 238 F.3d at 55 (expressing approval of
Lozada requirements as means to promote finality of deportation
orders). The immigration courts, which reasonably cannot be
expected to conduct a full-fledged evidentiary hearing for all such
claims, must be able to impose fair and efficacious techniques for
screening out, ab initio, the numerous groundless and dilatory
claims routinely submitted in these cases. See In re Rivera, 21 I.
& N. Dec. 599, 604-05 (BIA 1996). Thus, the requirement of a sworn
affidavit, presaging and memorializing the testimony which the
alien petitioner would present were he to be accorded a hearing,
produces the primary evidentiary basis upon which the IJ evaluates
the bona fides of the petitioner's claim in determining whether a
5
Moreover, the Betouche letter failed to comply with 28 U.S.C.
§ 1746, which arguably may have permitted, in lieu of an affidavit,
an “unsworn declaration . . . in writing of such person which is
subscribed by him, as true under penalty of perjury.”
-6-
hearing is even warranted. See id. Moreover, by exposing an alien
to the potential pains of perjury, the affidavit requirement
“‘foster[s] an atmosphere of solemnity commensurate with the
gravity of the [ineffective assistance] claim[s],’” Reyes v.
Ashcroft, 348 F.3d 1126, 1131 (9th Cir. 2003) (affirming BIA denial
due to alien’s failure to submit affidavit) (citation omitted), and
serves as a screening device whereby deportable aliens are
discouraged from filing dilatory ineffective assistance claims.
Finally, even assuming that the Lozada-affidavit
requirement might be excused, in some circumstances – beyond the
alien petitioner’s control – which prevented compliance, see
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124-25 (9th Cir. 2000)
(noting that Lozada requirements might be excused where alien
demonstrated diligent (albeit deficient) efforts to comply); In re
Rivera, 21 I. & N. Dec. at 602-03, Betouche proffers no explanation
for his failure even to describe an ineffective assistance claim in
affidavit form.6
6
Although we have held that aliens found deportable in
absentia – who have 180 days within which to file any number of
motions to reopen – should be allowed to cure any initial defects
in their Lozada materials within the 180-day period, see Saakian v.
INS, 252 F.3d 21, 25 & n.3 (1st Cir. 2001), Betouche was allowed
but one motion to reopen within 90 days of the final deportation
order. See 8 U.S.C. § 1229a(c)(6)(C)(i). Even though Betouche
belatedly attempted to submit a compliant affidavit for the first
time in conjunction with the present appeal, our review is
necessarily circumscribed by the administrative record established
before the BIA. See Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.
2003).
-7-
Furthermore, Betouche utterly failed to comply with the
second Lozada requirement: that he demonstrate that he had advised
Attorney Fitzgerald of his allegations and accorded Fitzgerald an
opportunity to respond. Although Betouche cursorily represented in
his appellate brief before the BIA that his attorney “ha[d] been
given an opportunity to respond,” the BIA correctly noted that he
adduced no evidence of that notification, such as a copy of a
letter from Betouche to his attorney. See Lozada, 19 I. & N. Dec.
at 639 (“Any subsequent response from counsel, or report of
counsel's failure or refusal to respond, should be submitted with
the [alien’s] motion.”); see also Reyes, 348 F.3d at 1132 (“[T]he
[Lozada] notice requirement serves both to notify a petitioner's
former counsel of the ineffective assistance allegations and to
give former counsel an opportunity to contest them before the IJ.
The participation of a petitioner's former counsel, in turn,
provides a mechanism by which the IJ may more accurately assess the
merits of a petitioner's ineffective assistance claims.”).
In addition, the September 2002 letter from Betouche to
the Board of Bar Overseers simply established that Betouche had
notified the Board of Bar Overseers of his complaint, not that
either he or the Board had notified Attorney Fitzgerald. The
November 12, 2002 letter, in which Attorney Fitzgerald implicitly
acknowledged notice of the September 2002 Bar complaint, plainly
was not part of the administrative record when the BIA issued its
-8-
October 31, 2002 decision, and therefore is to be disregarded in
the instant appeal. See Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st
Cir. 2003) (citing 8 U.S.C. § 1252(b)(4)(A)). As Betouche
inexcusably failed to comply with the first two Lozada
requirements,7 the BIA did not abuse its discretion in denying the
motion to reopen.8
B. The "Changed Circumstances" Claim
Next, Betouche contends that the BIA erred in rejecting
his motion to reopen the deportation proceedings, given that
conditions in Algeria had deteriorated significantly between August
1998 and April 2002.9 By way of proof, Betouche points to a 2001
7
Since Betouche made no prima facie showing that Attorney
Fitzgerald failed to advise him that his BIA appeal had been
dismissed as untimely, the motion to reopen – filed more than three
years after that dismissal – obviously was untimely. See 8 U.S.C.
§ 1229a(c)(6)(C)(i) (requiring that motions to reopen be filed
within 90 days of final deportation order).
8
Moreover, even if Betouche had met the Lozada criteria, he
would have had the burden to establish at least a reasonable
probability of prejudice resulting from his former attorney’s
failure to bring a timely appeal from the final deportation order.
See Saakian, 252 F.3d at 25. Counsel’s failure to prosecute an
immigration appeal – even if negligent – does not constitute
prejudice, per se. See Hernandez, 238 F.3d at 56 (“We have
reviewed the [IJ’s] [unappealed] decision and cannot find any such
‘reasonable probability’ that the result would have been different
if counsel had carried through with an appeal to the [BIA] or to
this court.”) (citation omitted). As of the present appeal,
Betouche has yet to make any attempt whatsoever to demonstrate any
grounds for reversing the 1989 denial of his asylum application on
its merits.
9
Betouche also argues that he was “deemed credible and
experienced past persecution,” and so the burden of proof shifted
to the government to rebut a presumption that he has a well-founded
-9-
State Department Human Rights Report, as well as “recent
[newspaper] articles” and “affidavits,” to demonstrate that serious
political unrest “persisted” in Algeria, thus allegedly exposing
Betouche to an increased risk of being targeted by Islamic
fundamentalists in the event he were to return to Algeria. See 8
U.S.C. § 1229a(c)(6)(C)(ii) (allowing filing of motions to reopen
beyond 90 days from final judgment of deportation where alien
adduces material evidence, unavailable to him at the time of his
asylum, that conditions in native country have changed). We find
no abuse of discretion in the BIA denial. See Zhang, 348 F.3d at
292.
Betouche included none of the above-described reports,
articles, and affidavits in the administrative record before the
BIA. Thus, even if Betouche were to have produced these materials
on the instant appeal (which he did not), they could not be
considered. See Fesseha, 333 F.3d at 18. In their stead, we
simply have Betouche’s uncorroborated assertions that those
materials would demonstrate that “the human rights situation in
Algeria remained poor . . . and serious problems persisted.”
(Emphasis added.) Rather than demonstrating any alleged change-in-
fear of persecution if he returns to Algeria. See 8 C.F.R. §
208.13(b)(1). On the contrary, the IJ denied his motion to reopen
solely on the lack of proof of changed circumstances in Algeria,
and Betouche points to no record evidence that the IJ even
considered whether or not his claim of past persecution was
credible, given that this issue already had been finally
adjudicated in the government’s favor back in August 1998.
-10-
country circumstances, these bald assertions severely undermine
Betouche's position, by suggesting exactly the opposite (viz., that
the same conditions have been continuing ever since 1998). As
such, these statements constitute a further attempt to relitigate
the merits of the asylum claim rejected in 1998.
Accordingly, the order of the Board of Immigration
Appeals is hereby AFFIRMED.
-11-