USCA1 Opinion
October 29, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1569
EMERSON PIMENTEL,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
___________________
Before
Breyer, Chief Judge,
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Torruella and Selya,
Circuit Judges.
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Peter A. Allen on Motion to Hold Case in Abeyance.
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Stuart E. Schiffer, Acting Assistant Attorney General,
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Robert Kendall, Assistant Director, and Charles E. Pazar,
_______________ ___________________
Attorney, Office of Immigration Litigation, on Motion to
Dissolve Automatic Stay of Deportation.
__________________
__________________
Per Curiam. Petitioner seeks review of the May 6,
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1993 order of the Board of Immigration Appeals (BIA) denying
petitioner's motion to reopen deportation proceedings so that
petitioner might apply for discretionary relief from
deportation. We summarily affirm the May 6, 1993 order,
grant the INS's motion to dissolve the automatic stay of
deportation, and deny petitioner's motion to hold appellate
proceedings in abeyance.
I
Petitioner was ordered deported after he failed to
appear at a deportation hearing or present any defense.
Petitioner promptly appealed to the BIA and moved to reopen
the deportation proceedings so that petitioner might apply
for discretionary relief from deportation. Petitioner's
motion to reopen, filed by his first counsel, indicated that
petitioner had not received notice of the deportation hearing
because INS correspondence had been sent to an address at
which petitioner "was not residing at the time of delivery."
The BIA dismissed the appeal and denied reopening. In
so doing, it pointed out that petitioner's motion to reopen
had not been accompanied by affidavits and evidentiary
material as required by 8 C.F.R. 3.8(a) and that the
address petitioner had stated in his notice of appeal was the
very address to which INS correspondence had been sent.
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Petitioner, represented by new counsel, promptly moved
to reopen once again, this time filing affidavits. He
claimed he had never told his first counsel that he did not
live at the address to which INS correspondence had been
sent; he simply had not received any notice of the
deportation hearing. Petitioner's mother stated by affidavit
that she had the only key to the residence's mailbox and she,
too, had not received notice of the deportation hearing.
Petitioner argued he should not be penalized for his first
counsel's failings.
Concluding that petitioner had not complied with the
requirements set forth in Matter of Lozada, 19 I & N Dec. 637
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(BIA 1988), for seeking reopening based on a claim of
ineffective assistance of counsel, the BIA denied
petitioner's motion to reopen. Petitioner now seeks judicial
review of that decision.
II
In Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), where
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an appeal from a deportation order had been summarily
dismissed because no brief had been filed, the BIA announced
a "high standard" for motions seeking reopening based on
claims of ineffective assistance of counsel:
A motion based upon a claim of ineffective
assistance of counsel should be supported by an
affidavit of the allegedly aggrieved respondent
attesting to the relevant facts. In the case
before us, that affidavit should include a
statement that sets forth in detail the agreement
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that was entered into with former counsel with
respect to the actions to be taken on appeal and
what counsel did or did not represent to the
respondent in this regard. Furthermore, before
allegations of ineffective assistance of former
counsel are presented to the Board, former counsel
must be informed of the allegations and allowed the
opportunity to respond. Any subsequent response
from counsel, or report of counsel's failure or
refusal to respond, should be submitted with the
motion. Finally, if it is asserted that prior
counsel's handling of the case involved a violation
of ethical or legal responsibilities, the motion
should reflect whether a complaint has been filed
with appropriate disciplinary authorities regarding
such representation, and if not, why not.
The high standard announced here is necessary
if we are to have a basis for assessing the
substantial number of claims of ineffective
assistance of counsel that come before the Board.
Where essential information is lacking, it is
impossible to evaluate the substance of such claim.
In the instant case, for example, the respondent
has not alleged, let alone established, that former
counsel ever agreed to prepare a brief on appeal .
. .. The requirement that disciplinary authorities
be notified of breaches of professional conduct not
only serves to deter meritless claims of
ineffective representation but also highlights the
standards which should be expected of attorneys who
represent persons in immigration proceedings . . ..
The BIA concluded petitioner had not complied with
Lozada as petitioner had not detailed his agreement with his
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first counsel, had not shown whether he had notified first
counsel of his charges, and had failed to state whether he
had filed a disciplinary complaint.
The BIA did not abuse its discretion in denying
petitioner's motion to reopen. First, petitioner's affidavit
was very sketchy in describing his arrangement with first
counsel. Petitioner stated that within a week of receiving
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an order to show cause why he should not be deported, he had
contacted counsel, whom, petitioner claimed "had already been
paid for this case"; counsel had said not to worry; and
petitioner "was under the impression" that counsel would
enter an appearance. After receiving a copy of the decision
ordering deportation, petitioner had again contacted counsel.
Counsel had again told petitioner not to worry and that "he
would get me my United States citizenship." One of counsel's
employees then helped petitioner file a notice of appeal, and
petitioner paid the employee $620.
The BIA could reasonably conclude that petitioner had
not sufficiently detailed his agreement with counsel.
Petitioner asserted that counsel had been paid for "this
case," yet petitioner was only "under the impression" that
counsel would file an appearance. Petitioner failed to
detail what counsel actually agreed to do with respect to the
deportation proceedings.
Second, petitioner failed timely to show that he had
notified first counsel of his allegations against him. In a
supplement to his motion to reopen, petitioner claimed to
have notified counsel by letter and purported to attach a
copy of the letter, but failed to do so. Even though the
BIA's May 6, 1993 order put petitioner on notice of the
letter's omission, petitioner apparently did not submit a
copy until over three months later with the filing of his
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third motion to reopen. Such piecemeal presentation, with
its potential for an unwarrantable delay of deportation, is
what Lozada's "high standard" is aimed at preventing.
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Third, petitioner refused to state whether he had filed
disciplinary proceedings against his counsel. He claimed
that "Supreme Court Rule No. 4221, regarding the
confidentiality of Disciplinary Complaints" barred him from
saying whether a complaint had been filed. Petitioner did
not attach a copy of the rule from which the BIA could make a
determination whether petitioner's interpretation was
warranted.1
In view of the motion's deficiencies, the BIA acted
within its discretion in denying reopening.
III
Petitioner asks that we hold appellate proceedings in
abeyance until the BIA acts on a third motion for reopening
petitioner filed through a third counsel in August 1993.
Because of 1105a's automatic stay, holding appellate
proceedings in abeyance would be tantamount to staying
deportation pending determination of petitioner's third
motion to reopen. After reviewing the motion and the relevant
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1. Petitioner has apparently abandoned his interpretation of
the Rhode Island rule, for in his third motion to reopen, he
indicates he filed a complaint against first counsel in late
July, almost two months after the BIA denied the second
motion to reopen. The disciplinary complaint is very
sketchy.
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considerations, see Berroteran-Melendez v. I.N.S., 955 F.2d
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1251, 1255 (9th Cir. 1992), we decline to stay judicial
proceedings. We note that petitioner has requested a stay
of deportation from the BIA, and we think the BIA is in the
best position to assess whether such relief is warranted.
The May 6, 1993 order denying reopening is affirmed and
the I.N.S.'s motion to lift the automatic stay is granted.
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