                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 19-3294
                                      ____________

                                   DJORDJE ZIVKU,
                                   a/k/a George Zivku,
                                           Petitioner

                                             v.

                            ATTORNEY GENERAL OF THE
                            UNITED STATES OF AMERICA
                                   ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                              (Board No. A209-307-987)
                         Immigration Judge: John P. Ellington
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 24, 2020

               Before: PHIPPS, RENDELL, and FISHER, Circuit Judges.

                                  (Filed: June 30, 2020 )
                                      ____________

                                        OPINION *
                                      ____________

FISHER, Circuit Judge.

       Djordje Zivku, a Serbian citizen, seeks review of a denial of his motion to reopen


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
removal proceedings. He claims that he was provided ineffective assistance of counsel

(IAC) when he elected voluntarily to depart the United States. For the reasons that

follow, we will deny the petition. 1

       The Fifth Amendment’s Due Process Clause guarantees to noncitizens effective

counsel in removal proceedings. 2 Yet, in Matter of Lozada, the Board of Immigration

Appeals (BIA) imposed three threshold procedural requirements on all motions to reopen

premised on an IAC claim: (1) the motion “should be supported by an affidavit of the

allegedly aggrieved [noncitizen] attesting to the relevant facts”; (2) “former counsel must

be informed of the allegations and allowed the opportunity to respond,” and any

response, or failure or refusal thereof, “should be submitted with the motion”; and (3)

“the motion should reflect whether a complaint has been filed with appropriate

disciplinary authorities regarding such representation, and if not, why not.”3

       Although we do not “apply a strict, formulaic interpretation of Lozada,” 4 our

Court has “generally agree[d]” that denial of a motion to reopen on Lozada grounds “is

not an abuse of the [BIA]’s wide-ranging discretion.” 5 The “requirements serve as a

threshold and screening mechanism to help the [BIA] assess the substantial number of


1
  We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA both affirmed the
IJ’s decision and added its own analysis, we review each decision. Contreras v. Att’y
Gen. of U.S., 665 F.3d 578, 583 (3d Cir. 2012). “We review the denial of a motion to
reopen for abuse of discretion and may reverse only if the denial is arbitrary, irrational, or
contrary to law.” Id.
2
  See Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001).
3
  19 I. & N. Dec. 637, 639 (B.I.A. 1988).
4
  Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (alteration omitted) (quoting Lu,
259 F.3d at 133).
5
  Lu, 259 F.3d at 133.
                                              2
[IAC] claims that it receives.”6 Here, Zivku has failed to satisfy both the second and the

third prongs, and that is enough to doom his petition. 7

       Under the second prong, Zivku was required not only to inform James Scallion,

his former counsel, of the allegations against him, but also to allow Scallion the

opportunity to respond. The immigration judge (IJ) and the BIA did not abuse their

discretion in finding that Zivku failed to accomplish the latter. Zivku retained his new

counsel shortly after his removal hearing on November 2, 2017. Even if, as he argued in

his motion, it took the immigration court some time to send his new counsel a record of

the hearing, that issue, as the BIA noted, appears to have been resolved by November 27.

Nearly one and a half months then elapsed before Zivku sent the requisite letter to

Scallion on January 10, 2018. And even then, three weeks still remained until the January

31 deadline—when Zivku had either to depart the country or to move to reopen.

However, he filed his motion only two days later, providing no indication that Scallion

received the letter, let alone responded (or failed or refused to respond) to it. Given this

timeline, Zivku had ample opportunity to notify Scallion of his intent to file a motion to

reopen and either to receive a response or reasonably to conclude that Scallion would not

respond. 8


6
  Fadiga v. Att’y Gen. USA, 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks
omitted); see Lozada, 19 I. & N. Dec. at 639.
7
  See Lu, 259 F.3d at 134-35 (affirming a denial of a motion to reopen where the
petitioner failed to meet two of the three Lozada requirements).
8
  “[T]he potential for abuse is apparent,” the BIA wrote in Lozada, “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.”
19 I. & N. Dec. at 639.
                                              3
       For similar reasons, Zivku also did not fulfill the third Lozada requirement. It is

undisputed that he failed to file a bar complaint before filing his motion, and indeed

before January 31. Nevertheless, we have “stress[ed] that the failure to file [such] a

complaint is not fatal if a petitioner provides a reasonable explanation for his or her

decision.” 9 In his motion, Zivku cited our decision in Fadiga v. Attorney General for the

proposition that “a [petitioner] is not required to file a bar charge where a lawyer

confessed error and submitted a detailed affidavit regarding ineffective assistance of

counsel.” 10 Yet that is not what occurred here: Scallion did not “fully and openly own[]

up to his error and provide[] a detailed affidavit attesting to the problems in the

representation” 11 before Zivku moved to reopen.

       Moreover, as noted above, the IJ and BIA reasonably concluded that Scallion was

not provided an opportunity to respond before the motion was filed. In evaluating failures

to satisfy Lozada’s bar-complaint prong, we have referred to the policies underlying that

requirement, among which are “identifying, policing, and correcting misconduct in the

immigration bar”; “deterring meritless claims of ineffective assistance of counsel”; and

“reducing the need for an evidentiary hearing.”12 None of these is realized when the

former counsel is deprived of an opportunity to respond—to acknowledge the error of his

ways or to present his side of the story. Accordingly, the agency did not abuse its



9
  Lu, 259 F.3d at 134 (emphasis omitted).
10
   AR 120 (citing Fadiga, 488 F.3d at 155-57).
11
   Fadiga, 488 F.3d at 156-57.
12
   Rranci v. Att’y Gen. of U.S., 540 F.3d 165, 174 (3d Cir. 2008) (citing Fadiga, 488 F.3d
at 156).
                                              4
discretion in finding that Zivku failed satisfy the third Lozada prong.

       For these reasons, we will deny the petition for review.




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