Betouche v. Ashcroft

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.

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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

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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).

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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.

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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.”

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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).

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 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

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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

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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.

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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.

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