                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2001

Lu v. Ashcroft
Precedential or Non-Precedential:

Docket 00-3393




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Lu v. Ashcroft" (2001). 2001 Decisions. Paper 166.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/166


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed July 24, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3393

XU YONG LU,

       Petitioner

v.

JOHN ASHCROFT,* Attorney General of the United States;
J. SCOTT BLACKMAN, District Director of the United
States Immigration and Naturalization Service,
Philadelphia District; and THE DIRECTOR OF
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; and
CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS,

       Respondents

APPEAL FROM THE
BOARD OF IMMIGRATION APPEALS

(No. A72 762 151)

Argued October 30, 2000

BEFORE: SCIRICA, NYGAARD, and BARRY,
Circuit Judges.

(Filed July 24, 2001)



_________________________________________________________________
* Substituted for Janet Reno pursuant to Federal Rule of Appellate
Procedure 43(c).
       John B. Consevage, Esq. (Argued)
       Buchanan Ingersoll
       213 Market Street
       One South Market Square, 3rd Floor
       Harrisburg, PA 17101
        Counsel for Petitioner

       Michael P. Lindemann, Esq.
       Linda S. Wendtland, Esq.
       Matthew R. Hall, Esq.
       Russell J.E. Verby, Esq. (Argued)
       United States Department of Justice
       Office of Immigration Litigation
       P.O. Box 878
       Ben Franklin Station
       Washington, DC 20044
        Counsel for Respondent

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Petitioner Xu Yong Lu seeks to reopen immigration
proceedings on account of alleged ineffective assistance of
counsel. Lu filed a motion to reopen before an Immigration
Judge, which was denied. The Board of Immigration
Appeals affirmed, in part because Lu failed to comply with
the procedural requirements laid out in Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988). We conclude that the
Lozada requirements are a reasonable exercise of the
Board's discretion; furthermore, the Board did not err in
holding that Lu failed to satisfy these requirements.
Therefore, we will affirm the denial of Lu's motion to reopen
his immigration proceedings.

I.

Xu Yong Lu is a native and citizen of the People's
Republic of China ("PRC"). In the summer of 1993, he
arrived at the shores of Rockaway Beach, New York, aboard
the Golden Venture, a vessel carrying approximately 150
other aliens. Lu claims that he fled the PRC in order to

                               2
escape persecution under the country's "one couple -- one
child" policy. Because Lu has three children, he was
subject to a number of fines, threatened with incarceration,
and his wife was sterilized.

The Immigration and Naturalization Service of the United
States detained Lu shortly after his arrival at Rockaway
Beach. The INS instituted exclusion proceedings and Lu
requested an attorney. At a hearing conducted on July 2,
1993, Lu's appointed counsel, Michael Usher, admitted the
charges against Lu but contended that the INS should seek
deportation rather than exclusion. Lu then filed two
applications for political asylum or, in the alternative,
withholding of deportation.

Immigration Judge Wayne R. Iskra conducted a formal
hearing on the merits of Lu's claim on September 1, 1993.
In an oral decision, Judge Iskra cited two advisory opinions
by the State Department, which both recommended
denying political asylum. He also found that Lu's testimony
contained numerous contradictions and lacked credibility
-- it was "essentially incomplete and he was hesitant."
Finally, he noted that a claim for asylum based solely upon
China's one-child policy is foreclosed by Board precedent.
He therefore denied all claims and ordered Lu excluded and
deported. Mr. Usher expressly reserved the right to appeal,
and Judge Iskra indicated that an appeal, if desired, had to
be filed on or before September 13, 1993. No appeal was
filed. Lu contends that his attorney agreed to pursue an
appeal; however, he concedes that he had no further
contact with Mr. Usher after the hearing.

Almost one year later, Lu filed a pro se habeas corpus
petition in the United States District Court for the Middle
District of Pennsylvania. The court issued a stay of Lu's
deportation and eventually consolidated his petition with
those of other Golden Venture detainees. However, on
September 5, 1995, the government moved to dismiss the
petition because of Lu's failure to timely appeal his original
deportation order. In response, Lu requested that the court
hold the government's motion in abeyance while he filed a
motion to reopen the administrative proceeding, which
would allow him to file an untimely appeal to the Board of
Immigration Appeals. The District Court dismissed Lu's

                               3
habeas corpus petition, but nonetheless continued to stay
his deportation pending the outcome of his motion to
reopen. Lu filed his motion to reopen on September 25,
1996. In it, he argued that Mr. Usher's failure to appeal
Judge Iskra's decision constituted ineffective assistance of
counsel.

On December 31, 1996, Judge Iskra denied Lu's motion
to reopen the administrative proceedings. First, he rejected
Lu's contention that Mr. Usher was obligated to file an
appeal because he had expressly reserved the right to do
so. Judge Iskra stated that "it is not clear whether former
counsel owed his client a duty to appeal the case." Even if
such a claim had merit, however, Judge Iskra found that
Lu had not complied with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Specifically, Lu did not establish the existence of an
agreement with Mr. Usher to file an appeal, and he failed to
adequately explain his decision not to pursue a disciplinary
complaint with the bar association. As a result, Lu's claims
did not establish the exceptional circumstances necessary
to reopen immigration proceedings.

Lu filed a timely appeal with the BIA shortly thereafter.
He claimed that Judge Iskra's decision violated his
fundamental due process rights. The BIA rejected Lu's
arguments "for the reasons set forth in the Immigration
Judge's . . . written decision." Lu then filed a second
habeas corpus petition in federal court seeking review of the
BIA's decision. The District Court transferred the petition to
us. Our task, therefore, is to review the denial of Lu's
motion to reopen his immigration proceedings.

II.

At the time Lu filed his motion, there was no statutory
provision governing the reopening of immigration
proceedings.1 See INS v. Doherty, 502 U.S. 314, 322-23,
_________________________________________________________________

1. The only existing authority was a regulation promulgated by the
Attorney General, which described when such a motion should be
denied, rather than granted. See 8 C.F.R. S 3.23(b)(3) (1996); see also
Doherty, 502 U.S. at 322-23. Since the filing of Lu's motion, Congress

                               4
112 S.Ct. 719, 724 (1992) ("There is no statutory provision
for reopening of a deportation proceeding."). Instead, "the
authority [to reopen derived] solely from regulations
promulgated by the Attorney General. . . . [who had] `broad
discretion' to grant or deny such motions." Id.; see also INS
v. Jong Ha Wang, 450 U.S. 139, 143-45 & n.5, 101 S.Ct.
1027, 1030-32 & n.5 (1981).

We have traditionally disfavored motions to reopen
immigration proceedings for the same reason we disfavor
"petitions for rehearing and motions for a new trial on the
basis of newly discovered evidence." Id. at 323; Katsis v.
INS, 997 F.2d 1067, 1070 (3d Cir. 1993). If anything,
deportation proceedings are even more disfavored because
"as a general matter, every delay works to the advantage of
the deportable alien who wishes merely to remain in the
United States." Doherty, 502 U.S. at 323, 112 S.Ct. at 724-
25; see also INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904,
913 (1988) ("Granting such motions too freely will permit
endless delay of deportation by aliens creative and fertile
enough to continuously produce new and material facts
sufficient to establish a prima facie case.").

Thus, we review the BIA's decision to deny reopening for
abuse of discretion, mindful of the "broad" deference that
the Supreme Court would have us afford. See Abudu, 485
U.S. at 110, 108 S.Ct. at 915 ("[T]he reasons for giving
deference to agency decisions on petitions for reopening or
reconsideration in other administrative contexts apply with
even greater force in the INS context."); Doherty, 502 U.S.
at 323, 112 S.Ct. at 724-25 ("[T]he abuse-of-discretion
standard applies to motions to reopen `regardless of the
underlying basis of the alien's request [for relief].' ").

III.

Lu argues that the BIA should have reopened his case
because he suffered ineffective assistance of counsel.
_________________________________________________________________

has enacted the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 ("IIRIRA"). The IIRIRA
provides a mechanism for reopening immigration proceedings, see 8
U.S.C. S 1229a(c)(6), but it only applies to motions filed on or after
April
1, 1997. See 8 U.S.C. S 1229a. Lu filed his motion to reopen on
September 24, 1996.

                               5
Immigration proceedings, however, are civil, rather than
criminal, in nature; therefore, the Sixth Amendment
guarantee of effective counsel does not attach. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479,
3483 (1984); Scheidemann v. INS, 83 F.3d 1517, 1520 n.4
(3d Cir. 1996). Nonetheless, petitioners in deportation
proceedings enjoy Fifth Amendment Due Process
protections. In Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir.
1988), the First Circuit Court of Appeals held that
ineffective assistance of counsel could constitute a denial of
due process if "the alien was prevented from reasonably
presenting his case." See also Hernandez v. Reno, 238 F.3d
50, 55 (1st Cir. 2001) ("[W]here counsel does appear for the
respondent, incompetence in some situations may make the
proceeding fundamentally unfair and give rise to a Fifth
Amendment due process objection."); Castaneda-Suarez v.
INS, 993 F.2d 142, 144 (7th Cir. 1993) ("[C]ounsel at a
deportation hearing may be so ineffective as to have
impinged upon the fundamental fairness of the hearing in
violation of the fifth amendment due process clause.");
Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir.
1985).

The government argues, however, that aliens facing
exclusion proceedings do not enjoy the same set of rights as
those facing deportation. See Landon v. Plasencia, 459 U.S.
21, 32, 103 S.Ct. 321, 329 (1982) ("This Court has long
held that an alien seeking initial admission to the United
States requests a privilege and has no constitutional rights
regarding his application, for the power to admit or exclude
aliens is a sovereign prerogative."). Although we recognize
that Plasencia is still good law, see, e.g., Zadvydas v.
Underdown, 185 F.3d 279, 294 (5th Cir. 1999) ("Denial of
entry is . . . not a deprivation of rights subject to
procedural due process, . . . we leave it to Congress to
determine the procedures to be used in adjudicating such
claims."), we are reluctant to hold that aliens facing
exclusion have no recourse against deficient counsel. Such
a ruling would simply encourage abuse. Because aliens
often do not speak English and are usually unfamiliar with
our laws and procedures, they are particularly vulnerable
to inadequate counsel. In fact, Congress has long
recognized the importance of counsel in immigration

                               6
proceedings, allowing aliens "the privilege of being
represented (at no expense to the Government) by such
counsel . . . as he shall choose" in any exclusion or
deportation proceeding. See 8 U.S.C. S 1362 (2000); see
also Chlomos v. INS, 516 F.2d 310, 314 (3d Cir. 1975).
Accordingly, we hold that a claim of ineffective assistance,
if properly established, could constitute proper grounds for
reopening an exclusion proceeding. Hence, we must now
decide whether the facts of this case warrant a reopening.

IV.

The BIA rejected Lu's claims because he did not comply
with the procedural requirements set forth in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988). This is the first
opportunity we have had to review the Board's three-prong
test for analyzing ineffective assistance claims. 2 We
conclude that it is a reasonable exercise of the Board's
discretion.

In Lozada, the respondent filed a Notice of Appeal (Form
I-290A), but failed to submit a written brief or statement in
support of his position. After over a year of inactivity, the
BIA dismissed the appeal. Almost two years later, however,
the respondent filed a motion to reopen the proceedings,
claiming that his counsel's failure to submit supporting
materials constituted ineffective assistance of counsel. The
Board rejected the respondent's claim and laid out a three-
step procedure for establishing "egregious" ineffective
assistance that would justify reopening:

       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
_________________________________________________________________

2. We made a passing reference to Lozada in Green v. INS, 46 F.3d 313,
320 (3d Cir. 1995), but never addressed its merits.

                               7
       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.

Lozada, 19 I. & N. Dec. at 638. The Board adopted such a
"high standard" in order to assess the "substantial number"
of ineffective assistance claims that it receives. See id.

The BIA later elaborated on the third prong of the Lozada
test, the so called "bar complaint" requirement, in In re
Rivera, 21 I. & N. Dec. 599 (BIA 1996). The Board noted
that federal disciplinary regulations, which govern attorneys
practicing before Immigration Judges and the BIA, are not
meant to be comprehensive. Instead, the Board relies"on
the disciplinary process of the relevant jurisdiction's bar as
the first, and ordinarily the fastest, means of identifying
and correcting possible misconduct." Id. Lozada's bar
complaint requirement "not only serves to deter meritless
claims of ineffective assistance of counsel but also
highlights the standards which should be expected of
attorneys who represent aliens in immigration proceedings."
Id. In addition, the Board recognized that although it might
often be possible to resolve the factual questions
surrounding the quality of an attorney's representation
without a bar complaint, such a requirement serves
numerous important purposes: "it increases our confidence
in the validity of the particular claim, . . . it reduces the
likelihood that an evidentiary hearing will be needed, . . . it
serves our long-term interests in policing the immigration
bar, [and it] protects against possible collusion between
counsel and the alien client." Id. Finally, the Board
concluded that a bar complaint requirement was not a
great "inconvenience" when viewed in light of an alien's
request to reopen costly and time-consuming administrative
proceedings. Id.

                               8
A number of Circuits have held that the Lozada
requirements are not a per se abuse of the BIA's discretion.
See, e.g., Hernandez, 238 F.3d at 55; Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) ("[T]he Board has laid out a
comprehensive procedure that a petitioner should follow
. . . and our sister circuits have adopted its reasoning.");
Lara v. Trominski, 216 F.3d 487, 495-99 (5th Cir. 2000);
Esposito v. INS, 987 F.2d 108, 110 (2d Cir. 1993). None has
explicitly rejected Lozada.3 See, e.g., Huicochea-Gomez v.
INS, 237 F.3d 696, 699 (6th Cir. 2001); Henry v. INS, 8
F.3d 426, 440 (7th Cir. 1993). We generally agree that the
BIA's three-prong test is not an abuse of the Board's wide-
ranging discretion.

There are inherent dangers, however, in applying a strict,
formulaic interpretation of Lozada. In particular, we are
concerned that courts could apply Lozada's third prong so
strictly that it would effectively require all petitioners
claiming ineffective assistance to file a bar complaint.
Lozada explicitly allows petitioners to provide a reasonable
explanation for not filing a complaint. In spite of this
apparent flexibility, courts generally have rejected
petitioners' explanations. For example, in In re Rivera, 21 I.
& N. Dec. 599, the BIA refused to accept the petitioner's
decision not to file a complaint because the ineffective
assistance was likely the result of "a postal error or an
error of inadvertence." The Board found this explanation
_________________________________________________________________

3. Lu contends that the Fourth Circuit Court of Appeals has expressly
rejected the bar complaint requirement of Lozada . He relies solely upon
Figeroa v. United States INS, 886 F.2d 76, 79 (4th Cir. 1989) ("[W]hile
petitioner took no `action' against [his attorney], we fail to see how
this
indicates that [his attorney's] representation was effective."). We note,
however, that in In re Rivera, 21 I. & N. Dec. 599, the BIA stated that
"[i]t is not clear whether the Fourth Circuit fully understood the basis
for
our Lozada requirements, as Lozada itself is not mentioned in Figeroa."
The Board then went on to defend and apply the bar complaint
requirement. On appeal, the Fourth Circuit Court of Appeals affirmed
the BIA and held that its analysis of the "ineffective assistance of
counsel
claim was appropriate and necessary." Rivera v. INS, 122 F.3d 1062 (4th
Cir. 1997); see also Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999)
(dismissing petitioner's ineffective assistance claim in part because she
failed "to assert her claim . . . to the BIA in the manner prescribed by
Matter of Lozada").

                               9
"inadequate" and suggested that the petitioner had
improperly minimized the attorney's misconduct. In fact, in
most cases where petitioners failed to file a bar complaint,
courts have rejected motions for reopening. See, e.g.,
Shukla v. INS, 2001 WL 176799 at *1-2 (9th Cir. Feb. 16,
2001) (unpublished decision); Huicochea-Gomez v. INS, 237
F.3d 696, 699 (6th Cir. 2001); Lara, 216 F.3d at 498-99;
Soniregun v. INS, 165 F.3d 19 (4th Cir. 1998) (unpublished
decision); Minasian v. INS, 117 F.3d 1425 (9th Cir. 1997)
(unpublished decision); Pimentel v. INS, 8 F.3d 809 (1st Cir.
1993) (unpublished decision); Miranda v. INS, 946 F.2d
1565 (D.C. Cir. 1991) (unpublished decision).

However, only in rare circumstances have courts refused
to reopen immigration proceedings solely because a
petitioner failed to file a bar complaint. Instead, a number
of courts have adopted a broader interpretation of Lozada.
See, e.g., Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir.
2000) ("While the requirements of Lozada are generally
reasonable, they need not be rigidly enforced where their
purpose is fully served by other means."); Lopez v. INS, 184
F.3d 1097, 1100 (9th Cir. 1999) (excusing the lack of a bar
complaint against "a notary posing as an attorney");
Esposito, 987 F.2d at 111 (excusing bar complaint
requirement where petitioner mistakenly believed that
attorney had already been suspended from the practice of
law). We generally agree with their approach. In many, if
not most, cases, petitioners alleging ineffective assistance
should file disciplinary complaints. However, this is not an
absolute requirement, and we stress that the failure to file
a complaint is not fatal if a petitioner provides a reasonable
explanation for his or her decision.4

V.

Judge Iskra rejected Lu's motion for reopening because
Lu had failed to satisfy Lozada's first and third procedural
_________________________________________________________________

4. Because of the often unique and highly variable factual circumstances
surrounding immigration matters, we are reluctant to define what would
constitute a "reasonable explanation" for not filing a complaint. However,
it is important that the Board, before denying a motion for reopening,
details its reasons for rejecting a petitioner's explanation.

                               10
requirements. First, he had not "set forth in detail" an
attorney-client agreement:

       [Lu] did not file documentation to support the claim of
       ineffective assistance of counsel, nor did he discuss in
       sufficient detail any effective acts by previous counsel
       to warrant a motion to reopen. Without evidence of the
       agreement between the Applicant and the former
       attorney, the Court cannot find there was ineffective
       assistance of counsel.

Judge Iskra was especially persuaded by the admitted lack
of communication between Lu and his attorney following
the formal hearing. In fact, Lu "began to act on his own
behalf . . . . This leads the Court to believe that there was
no agreement." Second, Judge Iskra noted that Lu had not
filed a disciplinary bar complaint against his attorney. Lu
declined to do so because his former counsel had acted on
a pro bono basis. Judge Iskra found this explanation to be
insufficient. The BIA affirmed these findings "for the
reasons set forth in the Immigration Judge's December 31,
1996, written decision."

We conclude that the BIA did not abuse its discretion in
adopting Judge Iskra's findings. First, there is nothing in
the record to suggest that Mr. Usher agreed to file an
appeal after the sentencing hearing. Instead, Lu implies
that Mr. Usher obligated himself when he expressly
reserved the right to appeal. We disagree. Although Mr.
Usher reserved Lu's rights, there is no evidence that he
agreed to continue his representation. In response, Lu
suggests that the absence of evidence merely reflects his
"total lack of ability to communicate directly to Mr. Usher
because of the language barrier, his lack of formal
education and his total ignorance of the American justice
system." We sympathize with Lu's position, but these
obstacles are not unique. Quite the contrary -- they are
common attributes shared by many individuals engaged in
immigration proceedings. If we were to accept Lu's
arguments, we would seriously undermine the BIA's ability
to assess the "substantial number" of claims it receives,
and thus frustrate the stated goal of Lozada.

The Board was also within its discretion to reject Lu's

                               11
explanation for not filing a bar complaint. An attorney's
obligation to his client is not diminished by the pro bono
nature of his representation; hence, we cannot sanction
Lu's failure to lodge a complaint simply because Mr. Usher
was not paid. The purpose of the third prong of the Lozada
test, as well articulated by the BIA in In re Rivera, 21 I. &
N. Dec. 599 (BIA 1996), is to reinforce "the standards which
should be expected of attorneys who represent aliens in
immigration proceedings." Complaints of ineffectiveness
also give bar associations an opportunity to conduct a legal
"post mortem" of an action to determine if one of its
members performed below the horizon of professional
competence. We believe that accepting Lu's explanation
would effectively lower the bar for attorneys representing
clients pro bono. Because all clients deserve the same level
of basic competency from their attorneys, we are unwilling
to endorse a lower standard for pro bono representation.
Thus, although a bar complaint is not always required
under Lozada, the BIA's decision to reject Lu's explanation
was not an abuse of discretion. As a result, we will affirm
the BIA's denial of Lu's motion to reopen his immigration
proceedings.5

VI.

For the foregoing reasons, we will affirm the denial of
Lu's motion to reopen.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

5. Because we agree that Lu did not satisfy the procedural requirements
of Lozada, we need not address whether Lu suffered prejudice as a result
of Mr. Usher's performance or the Board's alternative conclusion that "a
claim asserting ineffective assistance of counsel as the reason for
untimeliness [is not] a proper ground for reopening proceedings."

                               12
