FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO CORREA - No. 08-72258
RIVERA ,
Petitioner, Agency No.
A098-807-877
v.
ERIC H. HOLDER JR., OPINION
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 6, 2012—Pasadena, California
Filed February 6, 2013
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
and Sidney R. Thomas, Circuit Judges.
Opinion by Chief Judge Kozinski
2 CORREA -RIVERA V . HOLDER
SUMMARY*
Immigration
The panel granted Marco Antonio Correa-Rivera’s
petition for review of the Board of Immigration Appeals’
decision denying his request to apply for cancellation of
removal and finding that he failed to meet the requirements
of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), in his
ineffective assistance of counsel claim.
The panel held that the BIA erred in finding that Correa-
Rivera failed to comply with the third Lozada requirement:
“the motion should reflect whether a complaint has been
filed.” The panel found that the third requirement does not
call for a specific type of submission, document or action, and
that Correa-Rivera’s motion complied where it included a
copy of his complaint to the California Bar. The panel also
held that Correa-Rivera’s lawyer’s failure to file his
cancellation application prevented him from reasonably
presenting his case, and that he was prejudiced by the
lawyer’s ineffective assistance. The panel remanded for the
BIA to reopen Correa-Rivera’s case and allow him to file his
cancellation application.
COUNSEL
Ray A. Estolano, Estolano Law Office, Chula Vista,
California, for Petitioner.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORREA -RIVERA V . HOLDER 3
Drew Brinkman; Nairi S. Gruzenski (argued); Michelle G.
Latour, Assistant Director; and Francis W. Fraser I, Senior
Litigation Counsel; United States Department of Justice, Civil
Division/Office of Immigration Litigation, Washington, D.C.,
for Respondent.
OPINION
KOZINSKI, Chief Judge:
What does it mean for a document to “reflect” something?
Background
Marco Antonio Correa-Rivera illegally entered the
United States almost thirty years ago. He surrendered to
immigration authorities in 2006. At a hearing before an
immigration judge (IJ), Correa-Rivera conceded
removability, but said he wanted to apply for cancellation of
removal. See 8 U.S.C. § 1229b(b)(1). The IJ ordered Correa-
Rivera to file his application no later than April 6, 2007.
Correa-Rivera filled out the application form and gave it to
his attorney, along with supporting documents. The lawyer
told Correa-Rivera that if he needed anything else to file the
application, he’d contact him.
April 6 came and went, but the lawyer did nothing. Nor
did he file anything in May, June or July. Finally, almost six
months after the filing deadline had expired, the IJ deemed
Correa-Rivera’s application abandoned. He did this without
a hearing and without notifying Correa-Rivera that his
application was overdue. Correa-Rivera appealed to the
Board of Immigration Appeals (BIA), alleging he was denied
4 CORREA -RIVERA V . HOLDER
due process because his counsel was ineffective. The BIA
affirmed the IJ’s decision, finding that Correa-Rivera had not
complied with one of the procedural requirements announced
in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Correa-Rivera now petitions for review.
Analysis
I. Jurisdiction
Before turning to the merits of the petition, we must clear
some procedural brush left untended by the BIA. Correa-
Rivera raised his claim of ineffective assistance to the BIA by
way of an appeal of the IJ’s dismissal. But an appeal is not
the appropriate mechanism for raising such a claim, because
there is usually a “lack of a sufficient evidentiary record as to
what counsel did, why it was done, and what, if any,
prejudice resulted.” Iturribarria v. INS, 321 F.3d 889, 896
(9th Cir. 2003) (internal quotation marks omitted).
“Indeed, as a practical matter, a motion to reopen is the
only avenue ordinarily available to pursue ineffective
assistance of counsel claims.” Id. A motion to reopen seeks
“reconsideration on the basis of facts or evidence not
available at the time of the original decision.” Patel v.
Ashcroft, 378 F.3d 610, 612 (7th Cir. 2004). This is much the
same rationale as in criminal cases, where we have
“recognized that ineffective assistance of counsel claims are
ordinarily left for collateral habeas proceedings.”
Iturribarria, 321 F.3d at 896 (internal quotation marks
omitted). Because Correa-Rivera’s ineffective assistance
claim involves facts and evidence not available when the IJ
rendered his decision, Correa-Rivera should have filed a
motion to reopen.
CORREA -RIVERA V . HOLDER 5
Here, no one has faulted Correa-Rivera for using an
appeal as the vehicle for alleging ineffective assistance.
While the BIA noted that Correa-Rivera “made no
applications for relief before the Immigration Judge,” it didn’t
dismiss Correa-Rivera’s appeal on that ground. Nor has the
government argued the point, thereby waiving it. See United
States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011).
Despite Correa-Rivera’s procedural misstep, “[w]here the
facts surrounding allegedly ineffective representation by
counsel were unavailable to the petitioner at an earlier stage
of the administrative process, motions before the BIA based
on claims of ineffective assistance of counsel are properly
deemed motions to reopen.” Iturribarria, 321 F.3d at 891.
Correa-Rivera didn’t know his counsel was ineffective until
after the deadline had passed. Appeals asserting ineffective
assistance claims, like improperly captioned motions
asserting such claims, are effectively motions to reopen. We
therefore read the BIA’s decision as denying Correa-Rivera’s
motion to reopen, over which we have jurisdiction. See Lin
v. Gonzales, 473 F.3d 979, 981 (9th Cir. 2007).
II. Lozada
“Before making an ineffective assistance of counsel
claim, an alien generally must comply with the procedural
requirements established by the BIA in Matter of Lozada, 19
I. & N. Dec. 637 (BIA 1988), and adopted by this court.”
Iturribarria, 321 F.3d at 900. Those are: (1) the alien should
submit an affidavit detailing the agreement with former
counsel; (2) the alien must notify his former counsel of the
allegations and afford counsel an opportunity to respond; and
(3) “the motion should reflect whether a complaint has been
filed with appropriate disciplinary authorities regarding such
6 CORREA -RIVERA V . HOLDER
representation, and if not, why not.” Lozada, 19 I. & N. Dec.
at 639. These requirements “are not rigidly applied,
especially when the record shows a clear and obvious case of
ineffective assistance.” Rodriguez-Lariz v. INS, 282 F.3d
1218, 1227 (9th Cir. 2002). Here, we need not determine
whether Correa-Rivera’s attorney’s ineffectiveness was
sufficiently obvious from the record, so as to waive the
Lozada requirements, because the BIA’s determination that
Correa-Rivera failed to comply with Lozada was erroneous.
The BIA held that Correa-Rivera didn’t comply with the
third requirement: “Notwithstanding [Correa-Rivera’s]
assertion on appeal that he has filed a complaint with the
California Bar, he has failed to provide probative evidence
that he actually filed the complaint.” Specifically, the BIA
faulted Correa-Rivera for failing to provide “correspondence
from the Bar indicating receipt of the complaint.” But
Lozada doesn’t require that a petitioner present “probative
evidence” of having submitted a complaint to the bar, much
less correspondence from the bar acknowledging such a
complaint. Lozada suggests only that the motion “should
reflect” whether such a complaint has been filed. 19 I. & N.
Dec. at 639.
Lozada’s three requirements each call for a different type
of submission. The first calls for “an affidavit” from the
petitioner “attesting to the relevant facts,” including a
statement regarding the agreement with former counsel. Id.
An affidavit is a sworn declaration, normally attested to
before a notary public, stating certain facts under oath.
Black’s Law Dictionary 62 (8th ed. 2004). The second calls
for notice to counsel, although it doesn’t explain how that
notice is to be delivered; it also calls for a sufficient time
interval between the notice and the motion so that counsel can
CORREA -RIVERA V . HOLDER 7
respond. See Reyes v. Ashcroft, 358 F.3d 592, 599 (9th Cir.
2004). These requirements are quite specific and can be
satisfied only by some sort of document or action that is
external to the motion.
The third requirement, by contrast, calls for nothing
specific. It is, to begin with, hortatory. It speaks in terms of
“should” rather than “shall” or “must,” and states only that
“the motion should reflect whether a complaint has been filed
with appropriate disciplinary authorities . . . .” Lozada, 19
I. & N. Dec. at 639 (emphasis added). The most plausible
and straightforward reading of “reflect” is that the motion
should somehow disclose whether petitioner has filed a
complaint with the state bar. The term doesn’t give notice to
petitioners that they must present any “probative evidence”
that they have filed a complaint, and certainly not that they
must present correspondence or other acknowledgment from
the bar.
We could speculate about why the BIA phrased the third
requirement differently from the first two. One obvious
reason might be that the first two concern matters that
transpire in private between petitioner and his lawyer,
whereas the filing of a complaint with the state bar is a public
event that can be confirmed or refuted by objective sources,
should there be any doubt about the matter. But it’s not up to
us to divine the BIA’s reasons for using the language it did.
For ought it matters, it could have been poor draftsmanship.
What does matter is that this is the language the BIA used;
the agency is bound by the meaning that the words naturally
convey.
The BIA is free to change Lozada by way of a published
opinion, see 8 C.F.R. § 1003.1(g), but the order in Correa-
8 CORREA -RIVERA V . HOLDER
Rivera’s case isn’t published. Rather, it’s a one-member per
curiam order, which is without precedential value. Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1013 (9th Cir. 2006).
And, even if it wanted to change Lozada, the BIA could not
do so without giving petitioner notice of the change and an
opportunity to present the required proof. Indeed, it’s hard to
understand why the board here dismissed the case for failure
to present proof that Correa-Rivera filed a complaint with the
bar, when Correa-Rivera included a copy of the very
complaint with his motion. If the board had doubts about the
authenticity of the document, it could have asked Correa-
Rivera for further proof. But it is irrational and arbitrary,
even bizarre, for the BIA to dismiss a motion seeking relief
from a late filing when petitioner includes a declaration from
the lawyer admitting responsibility and absolving the client
of any culpability for the delay.
The government nonetheless argues that we’ve already
held that submitting a copy of a letter isn’t enough under
Lozada. Resp’t’s Br. 12 (citing Reyes, 358 F.3d at 598). Not
so. In Reyes, we held that an undated letter addressed to the
California Bar that “cc’d” the attorney wasn’t enough to show
that counsel had been notified of the allegations of ineffective
assistance. 358 F.3d at 598. But Reyes concerned the second
Lozada requirement: “[F]ormer counsel must be informed of
the allegations and allowed the opportunity to respond.”
Lozada, 19 I. & N. Dec. at 639. The second requirement is
mandatory, not hortatory, and requires that the lawyer be
notified early enough so that he can respond if he disagrees
with the charge. See Reyes, 358 F.3d at 599. The problem in
Reyes was that the petitioner did not indicate that he had sent
the lawyer a copy of the complaint and given him the
opportunity to respond. “Reyes could have mailed the
complaint letter and filed the motion to reopen
CORREA -RIVERA V . HOLDER 9
simultaneously, thereby affording [the attorney] no
opportunity to furnish a timely response.” Id. at 598. Not
only would that have “sidestepp[ed]” the corollary
requirement that “any subsequent response from counsel” be
filed with the motion, but it also would have thwarted the
goal of the second requirement, which is to prevent abuse. Id.
at 598–99; Lozada, 19 I. & N. Dec. at 639. “[T]he 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 so chooses,
thereby discouraging baseless allegations.” Lozada, 19 I. &
N. Dec. at 639.
Given that the BIA abused its discretion in applying
Lozada, see Rodriguez-Lariz, 282 F.3d at 1222, we could
remand for an evidentiary hearing, but there is no need to do
so here. We’ve previously explained that when the alien’s
“lawyer fail[s], without any reason, to timely file the
application,” the alien has presented a valid claim of
ineffective assistance. Castillo-Perez v. INS, 212 F.3d 518,
526 (9th Cir. 2000). So the only question left for the BIA to
determine is who missed the deadline: Correa-Rivera or his
lawyer? Correa-Rivera said it was the lawyer, and the lawyer
admitted it. The government hasn’t suggested otherwise.
Based on this evidence, the BIA could reach no rational
conclusion except that the lawyer was the cause of the missed
deadline.
The lawyer’s declaration, stating that he “failed to
properly file [Correa-Rivera’s] Application for Cancellation
of Removal,” and that Correa-Rivera “had no reason to
believe that I would not file his application,” gives us
confidence that the lawyer and Correa-Rivera aren’t
colluding. See Lo v. Ashcroft, 341 F.3d 934, 938 (9th Cir.
10 CORREA -RIVERA V . HOLDER
2003). First, the lawyer detailed his failing under penalty of
perjury, so if he’s lying, he’s taking a big risk. Beyond that,
he has furnished evidence against himself that could be used
in a future disciplinary proceeding or a civil suit for
malpractice.
This is the same logic that undergirds Federal Rule of
Evidence 804(b)(3), which deals with statements by
unavailable declarants. Under 804(b)(3), such a statement is
admissible if it is trustworthy and one that “a reasonable
person in the declarant’s position would have made only if
the person believed it to be true because, when made, it . . .
had so great a tendency . . . to expose the declarant to civil or
criminal liability.” We can be confident that the lawyer was
telling the truth because his statement exposes him at the very
least to a malpractice claim by Correa-Rivera. See Gutierrez
v. Mofid, 705 P.2d 886, 891 (Cal. 1985) (“It is well settled
that an attorney is liable for malpractice when his negligent
. . . conduct of the client’s affairs results in loss of the client’s
meritorious claim.”).
III. Prejudice
The final question is whether the lawyer’s dereliction of
duty prejudiced Correa-Rivera. See Iturribarria, 321 F.3d at
899–900. We find prejudice “when the performance of
counsel was so inadequate that it may have affected the
outcome of the proceedings.” Ortiz v. INS, 179 F.3d 1148,
1153 (9th Cir. 1999). In Castillo-Perez, we held “that
counsel’s failure to file an application for suspension of
deportation constituted a due process violation.” Rodriguez-
Lariz, 282 F.3d at 1226 (explaining Castillo-Perez, 212 F.3d
at 526). Similarly, in Rodriguez-Lariz, we held that
“petitioners have clearly suffered prejudice, as their counsel’s
CORREA -RIVERA V . HOLDER 11
failure to file their applications for suspension of deportation
unquestionably affected the outcome of the proceedings.” Id.
Here, the “record is undisputed” that the lawyer failed to
file Correa-Rivera’s application. Castillo-Perez, 212 F.3d at
526. Because of that failure, Correa-Rivera “was prevented
from reasonably presenting his case.” Ram v. Mukasey, 529
F.3d 1238, 1241 (9th Cir. 2008) (internal quotation marks
omitted). Correa-Rivera lost his opportunity to apply for
cancellation of removal. Therefore, he was prejudiced by the
lawyer’s ineffective assistance. On remand, the BIA shall
reopen Correa-Rivera’s case and allow him to file his
application for cancellation of removal.
PETITION FOR REVIEW GRANTED; REVERSED
AND REMANDED.