Gbaya v. United States Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15098 AUGUST 19, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

Agency Docket No. A73-177-621

PATRICK GBAYA,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,

Respondents.

________________________

Petition for Review of a Final Decision of
the Board of Immigration Appeals
_________________________
(August 19, 2003)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Petitioner Patrick Gbaya appeals from the decision of the Board of

Immigration Appeals (“BIA”) denying his “Motion to Reconsider, Re-open and to
Administratively Close” his removal proceedings. Gbaya argues that the BIA’s

denial of his motion was an abuse of discretion because he had shown that he

suffered from ineffective assistance of counsel during his original appeal to the

BIA.

“This Court reviews the BIA’s denial of [a petitioner’s] motion to reopen

his deportation order for abuse of discretion. In this particular area, the BIA’s

discretion is quite broad.” Anin v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999)

(per curiam) (internal quotation marks and citations omitted).

Upon thorough review of the record as well as careful consideration of the

parties’ briefs, we find no abuse of discretion and affirm.

The material facts of this case are not in dispute. Gbaya is a native and

citizen of Sierra Leone, who came to the United States as a non-immigrant visitor

on January 12, 1992, with permission to remain in the United States until July 11,

1992. On March 30, 1999, the Immigration and Naturalization Service issued a

Notice to Appear to Gbaya, charging him with removability pursuant to 8 U.S.C. §

1227(a)(1)(B).

At a hearing before an immigration judge (“IJ”) on September 7, 1999,

Gbaya conceded that he was removable, but requested asylum, withholding of

deportation, and, in the alternative, voluntary departure. Gbaya presented

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evidence that his father was a traditional tribal ruler in Sierra Leone and that if

Gbaya returned to Sierra Leone, he would be targeted by rebel groups for

persecution because of his relation to his father.

Although the IJ acknowledged that a return to Sierra Leone would involve

the “threat of violent confrontation between tribes and rebels,” he was

unconvinced that Gbaya had proven, as he must, that the threat was based on

“race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42); see INS v. Cardoza-Fonseca, 480 U.S. 421,

423, 107 S. Ct. 1207, 1208, 94 L. Ed. 2d 434 (1987). Instead, the IJ found that the

threat faced by Gbaya is endemic to Sierra Leone’s civil war generally. The IJ

also concluded that Gbaya had not established that his fear of returning to Sierra

Leone applies countrywide. Accordingly, the IJ denied Gbaya’s request for

asylum and withholding of removal and instead granted him voluntary departure.

Gbaya’s attorney filed a timely Notice of Appeal to the BIA on March 8,

2000. On the notice, the attorney indicated that a separate written brief or

statement would be submitted. On November 12, 2001, a day before the brief was

due, Gbaya’s attorney filed a “Motion for Extension of Time to File Brief,” in

which he stated that “in order to prepare a detailed, comprehensive brief in this

matter, thoroughly covering the errors of fact and law by the Immigration Judge,

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Counsel seeks a two week extension in which to finish and submit the Opening

Brief.” The motion was granted and the attorney was given until December 17,

2001, to file his brief. He never did. Instead, on the day after the brief was due,

he moved to withdraw as counsel, cryptically stating that “Respondent has not

fully met his obligations in terms of his representation by this office.” Gbaya

claims that his attorney withdrew because Gbaya owed him $221.

On January 31, 2002, the BIA summarily dismissed Gbaya’s appeal for

failure to file a separate written brief, pursuant to 8 C.F.R. § 3.1(d)(2)(i)(D).1 On

March 1, 2002, Gbaya, through new counsel, filed a motion to reconsider. Gbaya

alleged that his original attorney had been ineffective because the attorney’s

actions had prevented his appeal to the BIA from being heard on its merits. Gbaya

also alleged that his original attorney had failed to inform him of his eligibility for

Temporary Protected Status, (“TPS”) to which certain Sierra Leone natives are

entitled. See Immigration and Naturalization Service, Extension of the

Designation of Sierra Leone Under the Temporary Protected Status Program, 66

Fed. Reg. 46029 (Aug. 31, 2001). A successful application for TPS might have

prevented Gbaya’s impending removal.

1
This regulation has since been redesignated and can now be found at 8 C.F.R. §
1003.1(d)(2)(i)(E).

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 The BIA denied Gbaya’s motion to re-open his proceedings, holding that he

had failed to fulfill the procedural requirements for such claims set forth in Matter

of Lozada, 19 I.&N. Dec. 637, 638-39 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir.

1998). In that case, the BIA held:

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. ... [T]hat affidavit should include a statement that
sets forth in detail the agreement 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.

Id. at 639. The BIA found that Gbaya had not fulfilled any of the above criteria.

He submitted no affidavit attesting to the relevant facts and his agreement with his

former counsel. He did not inform his former counsel of the allegations, nor did

he give him an opportunity to respond. Lastly, although he claimed to have filed a

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complaint with the Office of Disciplinary Counsel of the Georgia State Bar

Association, he presented no evidence that he had in fact done so. The BIA

accordingly denied his motion. Gbaya now appeals.

It is well established that “[a]liens enjoy the right to the effective assistance

of counsel in deportation proceedings.” Mejia Rodriguez v. Reno, 178 F.3d 1139,

1146 (11th Cir. 1999). “[T]o establish the ineffective assistance of counsel in the

context of a deportation hearing, an alien must establish that his or her counsel’s

performance was deficient to the point that it impinged the ‘fundamental fairness’

of the hearing.” Id. This Court has never been called on to determine whether the

BIA may require that aliens first satisfy Lozada’s procedural requirements before

their ineffective assistance of counsel claims may be heard. However, every other

circuit to have addressed this issue has held that it is not a per se abuse of

discretion for the BIA to use the Lozada requirements. See Xu Yong Lu v.

Ashcroft, 259 F.3d 127, 133-34 (3d Cir. 2001); Hernandez v. Reno, 238, F.3d 50,

55-56 (1st Cir. 2001); Lara v. Trominski, 216 F.3d 487, 497-98 (5th Cir. 2000);

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).

Although our sister circuits agree that the BIA may require aliens to satisfy

the three part Lozada test, they disagree as to how strictly the BIA may enforce

those requirements. For example, the Seventh Circuit has upheld a strict

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enforcement of Lozada, stating that the BIA may deny a motion to reopen, even

where an alien has satisfied two out of three Lozada requirements. See Stroe v.

INS, 256 F.3d 498, 503 (7th Cir. 2001). On the other hand, the Ninth Circuit has

held that “[w]hile the requirements of Lozada are generally reasonable, they need

not be rigidly enforced where their purpose is fully served by other means.”

Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000). Rather, where “the facts

are plain on the face of the administrative record, the requirements of Lozada are

not dispositive.” Id. at 525 (internal quotation marks omitted); see also Xu Yong

Lu, 259 F.3d at 133 (“There are inherent dangers, however, in applying a strict,

formulaic interpretation of Lozada.”).

In this case, we need not decide whether the BIA may enforce strict

compliance with Lozada or must also accept substantial compliance. Gbaya has

achieved neither. As the BIA correctly found, Gbaya has not submitted a sworn

affidavit attesting to the relevant facts of his ineffective assistance claim, nor has

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he provided his former counsel with notice and an opportunity to respond.2 This

cannot be considered substantial compliance.

Gbaya asks us to apply the Ninth Circuit’s reasoning in Castillo-Perez to the

facts of his case in order to find that the BIA abused its discretion. He argues that

it is “plain on the face of the record” that his attorney was ineffective because his

attorney promised to submit a comprehensive brief to the BIA on November 12,

2001, and instead withdrew from the case a day after the brief was due.

Essentially, Gbaya is arguing that he need not comply at all with Lozada because

Lozada is designed to weed out meritless claims and his claim has obvious merit.

We disagree. Although it may be true that an examination of the record

would reveal the ineffectiveness of Gbaya’s counsel, the entire rationale behind

the Lozada requirements is to prevent the BIA from having to examine the record

in each and every ineffective assistance of counsel claim it receives. The Lozada

requirements are not unduly onerous to Gbaya, yet he would have us remove the

burden of complying with Lozada from his shoulders entirely, only to instead

2
Lozada’s third requirement is that “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.” Lozada, 19 I & N Dec. at 639. Here, Gbaya’s motion
states that he submitted a grievance against his former counsel to the state disciplinary authorities
on February 28, 2002, and a copy of the grievance is appended to his motion. We need not decide
whether this statement, without any evidence supporting it, constitutes compliance with the third
prong of Lozada, because having already failed to comply with at least two out of three Lozada
requirements, Gbaya would not be in substantial compliance with Lozada either way.

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demand from the BIA the much more onerous task of examining the record in each

and every case, just in case it can determine from the record whether there was

ineffective assistance of counsel. This we decline to do.

The BIA does not abuse its discretion by filtering ineffective assistance of

counsel claims through the screening requirements of Lozada and Gbaya has not

substantially complied with those requirements.

AFFIRMED.

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