United States Court of Appeals
For the First Circuit
No. 00-1771
MARK SAAKIAN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF A DECISION OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Christopher W. Drinan, with whom John K. Dvorak was on
brief, for petitioner.
Thankful T. Vanderstar, Attorney, with whom David W. Ogden,
Assistant Attorney General, and Terri J. Scadron, Senior
Litigation Counsel, were on brief, for respondent.
June 5, 2001
STAHL, Senior Circuit Judge. After being ordered
deported in absentia, petitioner Saakian filed with the
Immigration Judge (IJ) a motion to reopen on the basis of
ineffective assistance of counsel. The IJ denied his motion,
and Saakian timely appealed that decision to the Board of
Immigration Appeals (BIA), which dismissed his appeal. Saakian
petitions us to review the BIA's dismissal, contending that he
was denied procedural due process. We agree and grant the
petition.
I. BACKGROUND
Saakian, a native and citizen of Armenia, entered the
United States on November 13, 1993, as a non-immigrant visitor
for pleasure. He was accompanied by his father and stepmother.
The family's visas authorized them to remain in the United
States until May 12, 1994. On January 12, 1994, Saakian's
father applied for asylum on behalf of the three of them. The
record is silent as to the disposition of this application.
On June 26, 1996, Saakian filed his own individual
request for asylum, about which he was interviewed by the
Immigration and Naturalization Service (INS) on September 17,
1996. His request was denied on September 30, 1996, and an
Order to Show Cause issued, stating that Saakian was deportable
because he had stayed in the United States beyond the time
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allowed by his visa. This Order was served on Saakian on
October 16, 1996, and it directed him to appear before an IJ on
November 20, 1996. When Saakian appeared on that date, he was
told to return for a full hearing on March 19, 1997.
Saakian thereafter retained Connie Frentzos, of the
Khmer Humanitarian Organization in Los Angeles, to represent him
in the proceeding. Frentzos is not an attorney, though Saakian
alleges that he believed that she was one at the time he
retained her. Despite her non-attorney status, Frentzos is
authorized by the Executive Office for Immigration Review to
represent aliens in deportation proceedings. On March 4, 1997,
Frentzos filed a motion to change venue from Boston to Los
Angeles because Saakian intended to relocate there. According
to Saakian, Frentzos thereafter advised him that the motion
rendered it unnecessary for him to appear at the March 19
hearing. Saakian, allegedly acting on this advice, did not
appear at the hearing. The IJ subsequently ordered him deported
in absentia.
On April 18, 1997, Saakian filed with the IJ a motion
to reopen, stating that his failure to appear was caused by his
belief that he did not have to show up because of the pending
motion to change venue. He filed this motion pro se, near the
beginning of the 180-day period provided by law for filing such
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a motion. 8 C.F.R. § 3.23(b)(4)(iii)(A)(1). The INS filed its
opposition to this motion on April 25, 1997, arguing that the
motion to change venue did not excuse Saakian's absence. On
April 28, 1997, only ten days after Saakian had filed his
motion, he filed a supporting affidavit, in which he stated that
his erroneous belief was the result of bad advice from Frentzos,
who had told him not to appear. He did not specifically allege
"ineffective assistance of counsel" at this stage, but he did
allege facts which, if true, could be defined as ineffective
assistance.
On June 19, 1997, the IJ denied Saakian's motion to
reopen. In that order, the IJ construed Saakian's claim as one
of ineffective assistance of counsel, and proceeded to note that
only one of the three evidentiary requirements for such claims,
as set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA
1988), had been met by Saakian. Although Saakian had filed his
motion pro se, and was well within the 180-day window for filing
motions to reopen, the IJ did not give him an opportunity to
satisfy the other two Lozada requirements. Instead, he denied
the motion in language suggesting that Saakian was foreclosed
from remedying the deficiencies in his motion.
Saakian timely appealed to the BIA. In his appellate
papers Saakian requested, and was granted, additional time to
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retain an attorney before briefing the appeal.1 The appeal
alleged, inter alia, that the IJ’s de facto denial with
prejudice of his motion to reopen deprived him of due process
under the circumstances of this case. Along with his appellate
brief, counsel submitted to the BIA the remaining documents
required by Lozada.2
On May 26, 2000, the BIA dismissed Saakian's appeal.
It noted that, because Saakian had not met all three Lozada
requirements when he initially filed his motion to reopen, the
IJ had properly denied it. The BIA did not address Saakian's
due process claim on the merits. Saakian now petitions us to
review the BIA's decision.
II. DISCUSSION
In his petition, Saakian argues that, under the facts
of this case, the IJ and BIA denied him due process by denying
his motion to reopen with prejudice. In Saakian’s view, due
process required that he be afforded the opportunity to satisfy
1
In addition to his direct appeal of the IJ's denial of his
motion to reopen, Saakian also filed two separate motions to
remand, both of which were denied in the same BIA order. He
petitions us to review these denials, but they are rendered moot
by our determination regarding his primary claim.
2
The BIA permits such record supplementation in Lozada
appeals. See, e.g., In re B-B-, Interim Decision #3367, 1998 WL
694640 (BIA 1998); In re Rivera-Claros, 21 I. & N. Dec. 599 (BIA
1996); In re Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996).
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the Lozada requirements and have his ineffective assistance
claim heard on the merits. We agree.
Deportation is a civil, not a criminal, proceeding; as
such, there is no Sixth Amendment right to counsel. Hernandez
v. Reno, 238 F.3d 50, 55 (1st Cir. 2001). Nonetheless, "[i]t is
well established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings." Reno v. Flores, 507
U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189
U.S. 86, 100-101 (1903)); see also Gebremichael v. INS, 10 F.3d
28, 38 (1st Cir. 1993) ("It is well settled that an alien in a
deportation proceeding is entitled to procedural due process.").
In Bridges v. Wixon, the Supreme Court emphasized the
importance of strictly protecting an alien's right to procedural
due process:
Here the liberty of an individual is at
stake. . . . We are dealing here with
procedural requirements prescribed for the
protection of the alien. Though deportation
is not technically a criminal proceeding, it
visits a great hardship on the individual
and deprives him of the right to stay and
live and work in this land of freedom. That
deportation is a penalty--at times a most
serious one--cannot be doubted. Meticulous
care must be exercised lest the procedure by
which he is deprived of that liberty not
meet the essential standards of fairness.
326 U.S. 135, 154 (1945).
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Aliens have a statutory right to be represented by
counsel, at their own expense, in deportation proceedings. 8
U.S.C. § 1362 (1994). That right is "an integral part of the
procedural due process to which the alien is entitled." Batanic
v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (internal quotation
marks omitted). Ineffective assistance of counsel exists where,
as a result of counsel's actions (or lack thereof), "the
proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case." Bernal-Vallejo
v. INS, 195 F.3d 56, 63 (1st Cir. 1999). It is generally also
expected that the alien show at least a reasonable probability
of prejudice. Id. at 64; Hernandez, 238 F.3d at 56. The BIA
has held, however, that the prejudice requirement does not apply
in cases where an order was issued on the basis of a hearing
held in absentia. In re Grijalva-Barrera, 21 I. & N. Dec. 472,
473 n.2 (BIA 1996).
As a procedural matter, a claim of ineffective
assistance of counsel is typically raised through a motion to
reopen, which can be brought before either the BIA or the IJ
directly. The rules of procedure that govern such motions are
found at 8 C.F.R. § 3.2 for the BIA, and at 8 C.F.R. § 3.23 for
the Immigration Court. Because Saakian filed his motion to
reopen directly with the IJ, we look to § 3.23 for guidance. As
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we have noted, where an order has been entered against the alien
in absentia, the alien has 180 days from that order to file any
motions to reopen, assuming the alien can demonstrate that the
failure to appear was caused by exceptional circumstances beyond
his control. 8 C.F.R. § 3.23(b)(4)(iii)(A)(1).3 The BIA has
stated that incompetent representation qualifies as an
"exceptional circumstance." In re Grijalva-Barrera, 21 I.& N.
Dec. 472 (BIA 1996). Moreover, there is no numerical limit on
the number of motions to reopen an alien may file pursuant to
this provision. 8 C.F.R. § 3.23(b)(4)(iii)(D). Saakian thus
was entitled to file multiple motions to reopen during the 180-
day period.
As to the contents of a motion to reopen, the
regulation requires that the motion "state the new facts that
will be proven at a hearing to be held if the motion is granted
and . . . be supported by affidavits and other evidentiary
material." 8 C.F.R. § 3.23(b)(3). "Claims of ineffective
assistance of counsel satisfy the general requirement that
motions to reopen present 'new facts' that are 'material and
3We note that the regulations are far more lenient in cases
where the deportation order was entered in absentia. Otherwise,
barring new and compelling reasons for asylum, aliens may file
only one motion to reopen with the Immigration Court, and must
do so within 90 days of the deportation order. 8 C.F.R. §
3.23(b)(1).
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[were] not available and could not have been discovered or
presented at the former hearing.'" Iavorski v. INS, 232 F.3d
124, 129 (2d Cir. 2000) (quoting 8 C.F.R. § 3.23(b)(3))
(brackets in original).
In Matter of Lozada, the BIA specified the documents
an alien is expected to file with a motion to reopen founded
upon ineffective assistance of counsel. 19 I. & N. Dec. 637,
639 (BIA 1988). There, the BIA stated that when an alien makes
such a claim to the Board, the motion should be supported by 1)
an affidavit setting forth "in detail the agreement that was
entered into with former counsel with respect to the actions to
be taken," as well as any representations made by counsel to the
alien; 2) proof that the movant has informed former counsel of
the allegations in writing, as well as any response received;
and 3) a statement detailing "whether a complaint has been filed
with appropriate disciplinary authorities regarding such
representation, and if not, why not." Id.
The BIA's most comprehensive explanation of its
expectations under Lozada may be found in In re Rivera-Claros,
21 I. & N. Dec. 599, 603-05 (BIA 1996). There, the Board
indicated that the particular materials it requested in Lozada
usually provide it with all that it needs to make its
determination regarding the credibility of an alien's assertions
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against his prior counsel. Id. at 604-05. The three
requirements are primarily designed to provide the Board with
enough information to inform its decision without the need of a
hearing. Id. at 603. In the Board's view, false claims will be
identified either by the counsel's response to notification
(such as by an affidavit denying the allegations), or by an
alien's insufficiently explained refusal to file a formal
complaint against that counsel. Id. at 603. These
requirements, especially that of filing a complaint, "greatly
lessen[] the chances of collusion and of meritless claims being
brought forward for the purposes of delay," thus making it
easier for the Board to act on such motions. Id. at 604-05. In
Saakian's case, despite that the Board had all the materials it
has held most important in determining the credibility of claims
of ineffective assistance of counsel, it chose not to consider
them.
We have not had occasion to decide whether a failure
to satisfy the Lozada requirements in an initial motion to
reopen justifies a denial of the motion with prejudice to its
being subsequently refiled. But the Ninth Circuit has
consistently held that, "[a]lthough the BIA acts within its
discretion to impose the heightened Lozada procedural
requirements, it may not impose the Lozada requirements
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arbitrarily." Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124-25
(9th Cir. 2000) (internal citations omitted); see also Castillo-
Perez v. INS, 212 F.3d 518, 525-27 (9th Cir. 2000); Escobar-
Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000). We agree.
Furthermore, we regard this as a case involving an arbitrary
application of Lozada.
As we have noted, Saakian filed his Lozada-deficient
motion a mere one month into the 180-day period provided for
filing a motion to reopen an in absentia deportation order.
Despite this fact, and despite Saakian's pro se status, the IJ
denied the motion without either inviting Saakian to remedy its
deficiencies or noting Saakian's entitlement to file a second,
properly supported motion. Cf. In re Rivera-Claros, 21 I & N
Dec. 599, 607 n.5 (BIA 1996) (finding an alien's Lozada
submission deficient but explicitly observing that "our ruling
does not foreclose the [alien's] filing of a supplemental motion
that satisfies all the requirements of Matter of Lozada").
Moreover, in ruling as he did, the IJ actually used language
seeming to suggest that, by filing a deficient motion, Saakian
had lost his one and only opportunity to allege ineffective
assistance of counsel. Elevating form over substance, the BIA
then upheld this course of conduct without analysis. As a
result, Saakian's ineffective assistance of counsel claim has
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not been examined, despite Saakian's persistent efforts to have
it heard. This violates due process. See Ontiveros-Lopez, 213
F.3d at 1124-25.
In so concluding, we note that the BIA's actions in
this case are inconsistent with its actions in cases with
similar facts. For example, in In re Grijalva-Barrera, 21 I. &
N. Dec. 472 (BIA 1996), an alien who had been deported in
absentia filed a motion to reopen alleging that he had failed to
appear as a result of "the misdirection of his counsel." Id. at
473. The IJ denied the motion, and the alien appealed to the
BIA, alleging ineffective assistance of counsel. Id.
Specifically, the alien stated that an employee of his prior
attorney had called him on the morning of his deportation
hearing and told him that he should not appear because there had
been a continuance. Id. In his appeal to the BIA, the alien
satisfied all three Lozada requirements. Id. at 474. The BIA
found "that the [alien] ha[d] established sufficient grounds for
reopening [the] proceedings," because he had "made a convincing
claim of ineffective assistance by his former counsel." Id. at
473-74. The BIA's reasoning was "that the respondent, who had
no reason not to rely on his counsel at this juncture, was
blatantly misled regarding his need to appear at the scheduled
hearing." Id. at 474. On this basis, the BIA sustained the
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appeal and remanded to the IJ for further proceedings. Id.
Thus, in similar circumstances, the alien not only had his
appeal heard on the merits, but he was successful.
The Board's action here also stands in stark contrast
to its action in In re B-B-, Interim Decision #3367, 1998 WL
694640 (BIA 1998). There, the aliens had filed a motion to
reopen with the IJ "alleging that prior counsel wrongfully
dissuaded them from applying for asylum and charging her with
ineffective assistance of counsel." Id. at 1-2. There, as
here, the IJ denied the motion due to lack of compliance with
the Lozada requirements. Id. at 2. The aliens appealed to the
BIA and, like Saakian, "submitted additional documentation in an
effort to comply with the Lozada requirements . . . ." Id. The
BIA reviewed these new materials and rejected the aliens'
appeal, disagreeing that the conduct alleged constituted
ineffective assistance of counsel. Id. at 3-4. But unlike this
case, the Board acted on the merits of the aliens' claim. Id.
Finally, in In re Rivera-Claros, 21 I. & N. Dec. 599
(BIA 1996), the BIA dismissed an appeal from an IJ's denial of
a motion to reopen an in absentia deportation order alleging
ineffective assistance of counsel. The Board ruled as it did
because the alien had failed satisfactorily to meet the Lozada
requirements at both administrative levels. Id. at 606-07. In
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reaching this result, however, the Board explicitly stated the
following:
We note that the [alien]'s motion met the
180-day time limit for "exceptional
circumstances" motions imposed by section
242B(c)(3)(A) of the Act. We need not now
address whether the [alien] may satisfy the
remainder of the statutory requirements by
virtue of information submitted outside the
180-day period. In other words, our ruling
does not foreclose the [alien]'s filing of a
supplemental motion that satisfies all the
requirements of Matter of Lozada . . . .
Id. at 607 n.5.
Here, the BIA did not analyze the merits of Saakian's
claim based on the Lozada materials he had submitted, even
though he was entitled, as an in absentia deportee, to more than
one bite at the apple. 8 C.F.R. § 3.23(b)(4)(iii)(D). The
BIA's refusal to consider his newly formed Lozada claim was also
despite the fact that Saakian had not been provided with an
adequate opportunity to fulfill Lozada's requirements with the
IJ. As a result, Saakian did what he was supposed to do in
order to be heard on the merits (prepared an affidavit, notified
Frentzos, and filed complaints against her), but, nonetheless,
his claim never was heard on the merits.
III. CONCLUSION
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For the reasons stated, we GRANT Saakian's petition for
review, and REMAND to the BIA for further proceedings consistent
with this opinion.
So ordered.
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