dissenting.
Because I believe the majority’s opinion does indeed apply the type of “strict, formulaic interpretation of Lozada ” that we warned against in Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir.2001), and because I believe the petitioner’s due process rights have been violated, I must respectfully dissent.
I.
Besnik Rukiqi, an ethnic Albanian from Kosovo, in what is now the Republic of Serbia, entered the United States on April 22, 2000.5 He applied for asylum, claiming that he and his family had been persecuted in Kosovo by the Serbian government. As the majority sets out, Rukiqi claims that he and his family were repeatedly threatened by the police. According to the evidence he presented, he was arrested in 1989, beaten, questioned about his family’s political activities, and detained. His problems with the police resurfaced on April 27, 1999, when, he says, they forced him from his home at gun point. His father was killed soon thereafter, and he and his brother escaped to the mountains, where they nearly starved. Rukiqi then fled to the U.S.
Rukiqi asserts that, two months after he arrived in the United States, he hired Martin Vulaj to file his asylum application. *125That assertion is supported by the administrative record, which shows that Vulaj or someone working for him prepared an asylum application on Rukiqi’s behalf. The date on the signature line of the application is June 29, 2000, approximately two months after Rukiqi entered the country. As the majority states, Rukiqi claims that he repeatedly called Vulaj’s office over a period of months because he never heard from either Vulaj or the INS about his application. Vulaj at first assured him that the application had been filed. Later, Vulaj would not return his calls, but an employee of Vulaj’s office continued to tell Rukiqi that the application was in the government’s hands. Two days before the one-year filing deadline for the application, Rukiqi received a call from Vulaj’s office telling him to come in and sign the application forms again because the application had to be “resubmitted.” He went to the office, signed a new set of papers, provided new photographs, and was promised that the application would be filed immediately. Despite that assurance, however, the application was not filed until April 25, 2001, three-days after the filing deadline.6
Vulaj was not present at any of Rukiqi’s hearings before the Immigration Judge (“IJ”), nor did he participate in the appeal before the Board of Immigration Appeals (“BIA”). In fact, Rukiqi had never previously met the attorneys who purported to represent him at his hearings before the IJ and on appeal before the BIA. At the hearing before the IJ on May 22, 2002, Rukiqi was represented by Timothy Garille. He was also represented by Linda Flanagan at hearings on December 20, 2001 and February 7, 2002. On appeal to the BIA, he was represented by Flanagan and Isejn Marku. Despite the majority’s assertion to the contrary, ante at -, there is evidence in the record to indicate that Flanagan, Garille, and Marku all worked with Vulaj in the same law firm during at least part of the time relevant here. First, the BIA itself noted that the attorneys who represented Rukiqi at his hearing and on appeal “were associated with the firm [Vulaj] practiced with[.]” Appx. at A18. The majority readily disregards this observation by the BIA, in a remarkable 180-degree reversal from the deference they give the BIA throughout the rest of the opinion. Furthermore, evidence in the record supports the BIA’s observation. See Administrative Record [“AR”] at 96 (Letter from Linda Flanagan to the BIA on “Vulaj & Marku” letterhead); Appendix [“Appx.”] at A31 (later brief to the BIA signed by Linda Flanagan “For the Law Offices of Isejn Marku”); AR 182 (Garille stating he was from the firm of “Laura (indiscernible) Makoo (phonetic spelling)”, which seems to refer to ‘Vulaj & Marku”). To the majority, these “bits of information,” ante at n. -, amount to no evidence at all, but they persuade me, as they did the BIA, that Vulaj, Marku, Flanagan, and Garille all worked together in the same law firm.
At the May 22, 2002 hearing, Garille was unaware of when Rukiqi’s asylum application had been filed. When the attorney for the government noted that Rukiqi’s application was filed three days late, the IJ asked Garille whether there were any extraordinary circumstances to justify the late filing. Garille agreed that the asylum application was untimely and stated that he did not “have any extenuating circumstances to offer to the Court ... [f]or this seemingly [sic] failure to comply with the one year rule.” Accordingly, in his oral opinion, the IJ noted that “[t]he respondent has not contested ... the date nor the circumstances surrounding his failure *126[to timely file his asylum application] and in fact does not offer any explanation for the failure to file.”7 The IJ thus found that asylum was unavailable to Rukiqi.
The BIA affirmed the IJ’s decision. The BIA agreed that the asylum application was late and that Rukiqi was not entitled to withholding of removal or relief under the Convention Against Torture.
After hiring new lawyers, Rukiqi filed a motion to reopen his case with the BIA. In his accompanying affidavit, Rukiqi described the circumstances of his asylum application, including that he had hired Vulaj two months after he entered the country, that Vulaj had repeatedly assured him that his application had been filed, and that he learned of the late filing of his application only after he had hired a new lawyer. Rukiqi stated that his “attorney’s outright misleading and lying to [him] are extraordinary circumstances that warrant that [his] case be reopened.” In the motion itself, Rukiqi alleged ineffective assistance of counsel on the part of Vulaj, based on the allegations set forth in the affidavit.
On March 2, 2004, the BIA denied Rukiqi’s motion to reopen. The BIA noted that
[i]n support of his ineffective assistance of counsel claim, [Rukiqi] submitted his affidavit alleging that [he] was timely in asserting his asylum claim but that the attorney delayed in filing the application. [He] also submitted a complaint regarding the attorney, Martin Vulaj, to local bar authorities and also submitted correspondence from the bar officials stating that Mr. Vulaj has resigned from the practice of law. [He] also detailed the basis of his asylum claim in his affidavit.
The BIA, nevertheless, found that Rukiqi had not established extraordinary circumstances to justify the late application.
First, according to the BIA,
[t]he record reflects that at his hearing and on appeal, [Rukiqi] was represented by other attorneys, not the one disbarred (although they were associated with the firm he practiced with) and [Rukiqi] has not established ineffective assistance on their part. Because the record shows that [he] continued to use these attorneys at his hearing and on appeal and the attorney at the hearing conceded the untimeliness of the asylum request and the lack of extraordinary circumstances, we find that such circumstances undermine his ineffective assistance of counsel claim.
Second, the BIA found
that even if [Rukiqi] established extraordinary circumstances within the scope of 8 C.F.R. § 1208.4(a)(5)(iii), he has not established a prima facie showing of eligibility for asylum. The United States Department of State Country Reports *127for Yugoslavia for 2000 and 2001 submitted by [Rukiqi] disclose that ethnic Albanians presently face at most some discrimination not rising to the level of persecution. Consequently for this reason also we find that reopening is not warranted.
II.
The majority holds that we cannot reopen Rukiqi’s case because he failed to comply with the BIA’s procedural requirements for stating an ineffective assistance of counsel claim, as set forth in Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988). Those requirements are:
(1) that the claimant submit an affidavit setting forth the relevant facts, including the agreement with counsel about the scope of representation;
(2) that he inform counsel of the allegations and allow counsel an opportunity to respond; and
(3) that he state whether a complaint has been filed with bar authorities, and if not, why not.
Lu, 259 F.3d at 132. We have held that it is within the BIA’s broad discretion to impose those requirements. Id. at 133. But, we have also recognized that “[tjhere are inherent dangers ... in applying a strict, formulaic interpretation of Lozada.” Id.; see also Fadiga v. Attorney General U.S., 488 F.3d 142, 156 (3d Cir.2007) (reaffirming Lu’s warning about the “dangers ... in applying a strict, formulaic interpretation of Lozada[.]”); Castillo-Perez v. I.N.S., 212 F.3d 518, 526 (9th Cir.2000) (“Lozada is intended to ensure both that an adequate factual basis exists in the record for an ineffectiveness complaint and that the complaint is a legitimate and substantial one. Here, the record of the proceedings themselves is more than adequate to serve those functions.”). For example, we have said that the need to file a disciplinary complaint with regulatory authorities “is not an absolute requirement,” and we have further “stressed] that the failure to file a complaint is not fatal if a petitioner provides a reasonable explanation for his or her decision.” Lu, 259 F.3d at 134; see also Castillo-Perez, 212 F.3d at 526 (“while the requirements of Lozada are generally reasonable, they need not be rigidly enforced where their purpose is fully served by other means.”). In short, Lozada is not supposed to be the Procrustean bed it has become in this case.
The majority holds, in accordance with the government’s argument, that the first Lozada requirement has not been satisfied because, although Rukiqi submitted an affidavit with his Motion to Reopen, he failed to set forth the details of his agreement with Vulaj. I disagree that there is inadequate detail here. Rukiqi’s affidavit, amply supported by the record on this point, shows that Rukiqi retained Vulaj to file his asylum application. Rukiqi states that he hired Vulaj two months after entering the United States. Indeed, Rukiqi’s asylum application, dated June 29, 2000, bears a signature purporting to be Vulaj’s on a signature fine for the “application preparer.” Rukiqi also details his phone calls to Vulaj, responses he got from Vulaj and Vulaj’s staff, and the trip he made to Vulaj’s office just two days before the filing deadline so that his asylum application could be “resubmitted.” The record also contains evidence showing that attorneys from Vulaj’s firm represented Rukiqi at his hearings and in his initial appeal to the BIA. It thus appears clear to me that Rukiqi has satisfied the first Lozada requirement, as the record demonstrates without contradiction that he retained Vulaj to represent him in the process of obtaining asylum.
The majority also says that Rukiqi did not satisfy the second Lozada require-*128merit, since “the motion to reopen does not establish that Rukiqi informed Vulaj of his dissatisfaction....” Ante at 123. Notably, the government did not raise this argument in its Motion for Summary Affirmance, perhaps because it recognized, as I do, that the unrebutted record does indicate that Rukiqi tried to advise Vulaj of his complaint to the New York bar, but that Vulaj could not readily be contacted since he had been ousted from the practice of law.8 It is thus neither surprising nor unreasonable that Rukiqi has been unable to contact him.9
Finally, the record shows that Rukiqi filed a complaint with the Disciplinary Committee of the New York Supreme Court, Appellate Division, outlining his allegations of Vulaj’s incompetence and deception. As noted, Rukiqi received a response from the Committee informing him that Vulaj had “resigned from the practice of law,” and enclosing the “order of the Appellate Division, First Judicial Department striking Mr. Vulaj’s name from the roll of attorney’s admitted to practice in New York State.” Thus, Rukiqi fulfilled the first and third Lozada requirements, and made a reasonable though frustrated effort to fulfill the second. Because we are not supposed to apply a “strict, formulaic interpretation of Lozada [,]” I disagree with the majority’s conclusion that Rukiqi’s “motion to reopen falls far short of Lozada’s requirements.” Ante at 124. It appears, on the contrary, to adequately meet the letter of Lozada, and, importantly, to fully meet the spirit of the policy behind that precedent.
It is worth observing that the BIA did not deny Rukiqi’s motion because he failed to satisfy the procedural requirements of Lozada. In fact, the BIA did not mention Lozada anywhere in its opinion. The BIA did cite 8 C.F.R. § 1208.4(a)(5)(iii), the regulatory section that sets out the Lozada requirements, for the proposition that Rukiqi had “not established extraordinary circumstances for failure to timely [file] his asylum claim.” (A-18.) The BIA then went on to say that only Vulaj was disbarred, that Rukiqi was represented by other attorneys, and that he did not allege that those attorneys were ineffective. (A-18-19.) While this might be read to say that Rukiqi did not meet the Lozada requirements with respect to Garille, Flanagan, and Marku, it is not a holding that Rukiqi failed to meet the Lozada requirements with respect to Vulaj.10
*129III.
Because I would hold that we have jurisdiction to review Rukiqi’s motion to reopen, and that Rukiqi has fulfilled the Lozada requirements, I would also consider the merits of his motion to reopen. We review a denial of a motion to reopen for abuse of discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). The BIA’s decision must be upheld unless “it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002) (internal quotation marks omitted). For the following reasons, I believe the BIA abused its discretion in denying the motion to reopen.
A.
The BIA found that Rukiqi had not established extraordinary circumstances for failure to timely file his asylum claim, as required by 8 C.F.R. § 1208.4(a)(5)(iii). It reasoned that, even if Vulaj provided Rukiqi with ineffective assistance of counsel, Rukiqi had been represented by three other attorneys who had not been disbarred. In light of the record, however, that conclusion is unfounded and arbitrary.
Garille, Flanagan, and Marku, the three lawyers who represented Rukiqi at his hearings before the IJ and on appeal to the BIA, were apparently all associated with Vulaj before he left, or was driven from, the practice of law. See supra at Section I. Thus, each had a conflict of interest that prevented him or her from appropriately addressing whether Vulaj was responsible for the travesty of legal representation that Rukiqi claims led to his asylum application being untimely. Vulaj’s partners or employees could not rightly be expected to answer the question posed by the IJ about extraordinary circumstances to justify the late filing. Though there are people of great integrity who acknowledge facts to their own detriment, we do not generally count on a lawyer confessing a partner’s or employer’s malpractice, along the lines of saying, “Why, yes; my colleague repeatedly lied to Mr. Rukiqi and led him to believe his asylum application was timely filed, though it wasn’t. That’s the extraordinary circumstance that justifies the late filing of the application.” Consequently, it was an abuse of discretion for the BIA to deny Rukiqi’s motion to reopen on the grounds that, of the lawyers from Vulaj’s firm who represented Rukiqi, only Vulaj ended up disbarred.
B.
The BIA also found that, even if Rukiqi had established extraordinary circumstances through his claim of ineffective assistance of counsel, he failed to show a prima facie case of eligibility for asylum. However, the BIA gave no indication that it had considered the evidence Rukiqi submitted. His affidavit describes his arrest for participation in a protest, and his having been “brutally beaten” during a two-week incarceration. He also describes a history of being severely harassed by the police. He provides a disturbing description of his father being captured and murdered by the Serbian army, forcing Rukiqi and his brother to flee to the mountains. In denying Rukiqi’s motion to reopen, the BIA did not mention any of the affidavit evidence. Instead, both the IJ and the BIA relied on the United States Department of State Country Reports for Yugoslavia for 2000 and 2001 to say that changed conditions in Rukiqi’s town show he would not be persecuted on his return. If this ease were being remanded, as I believe it should be, the IJ and the BIA *130may have ultimately decided, after weighing Rukiqi’s evidence, that he was nevertheless not eligible for asylum. But, at least then his evidence would have been weighed; he would have had the legal process he was due. Ignoring Rukiqi’s statements about his experiences in Kosovo, statements that are plainly relevant to the question of whether he has a reasonable fear of persecution, was, I believe, an abuse of discretion by the BIA.
I therefore dissent.
. Rukiqi’s entry date is different on two copies of the asylum application filed on his behalf. The date April 24 is typed on the form, but on the copy submitted as Exhibit 2 to the Immigration Judge, that date is scratched out and April 22 is handwritten. At his hearing, it was apparently established that Rukiqi entered on April 22.
. Even filed late, the application was incomplete, and it was refiled on June 21, 2001.
. Rukiqi claims that he did not understand that discussion between Garille and the IJ, and that he did not know what had happened until after his appeal was denied and he spoke with another attorney. The majority implies that this claim is incredible because the record indicates that Rukiqi and Garille conferred for "a while.” Ante at-. However, the majority’s implication requires the assumption that Garille communicated accurately the import of the "extraordinary circumstances” question to Rukiqi. It also requires one to believe that, knowing he was forfeiting the hearing he'd been struggling to get, Ruqiki concurred in Garille’s concession that there were no extraordinary circumstances justifying the delay. While the majority opines that "surely Rukiqi heard the extensive discussion of the tardy filing and had to realize that he had been misled by Vulaj,” ante at-, the only thing that appears sure to me from the record of the hearing is that the lawyer supposedly representing Rukiqi's interests made a concession about the late filing because he was either unwilling or unable to describe the truly extraordinary circumstances that the record shows did exist.
. The letter from the Disciplinary Committee of the New York Supreme Court, Appellate Division is carefully neutral in describing Mr. Vulaj’s name being stricken from its roll of practicing attorneys, but the BIA read this— probably with good reason—as tantamount to disbarment, given the circumstances here.
. Additionally, the reason that the BIA has given for establishing this requirement is to prevent abuse of ineffective assistance of counsel claims by "allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he so choosesf.]” Lozada, 19 I. & N. Dec. at 639. Here, however, it seems Vulaj has already declined to defend his integrity and competence before the New York bar and has chosen instead to have his name stricken from the roll of attorneys.
. The majority states that, “even had Rukiqi met the Lozada requirements with respect to Vulaj, he also had an obligation to meet them with respect to those additional attorneys who actively represented him before the BIA." (Ante at n. 3; original emphasis.) It goes on to say that "[tjhe dissent simply has no response to the argument that Rukiqi failed to meet this obligation and that his failure to do so dooms his motion to reopen.” (Id.) On the contrary, there is a response and I have endeavored to give it appropriate emphasis: it appears to me from the record, as it appeared to the BIA, that Marku, Garille, and Flanagan were all associated with Vulaj in the practice of law during the time of Vulaj’s malfeasance. My argument is simply that, under these circumstances, the Lozada showing as to Vulaj suffices to cover the Vulaj *129colleagues who failed to point out that malfeasance as the reason for Rukiqi’s late filing.