                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    IN THE UNITED STATES COURT OF APPEALS
                                                                             February 7, 2006
                             FOR THE TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                               Clerk of Court

 PATRICK ARIKO,

          Petitioner,

 v.                                                          No. 05-9511
                                                 On Petition for Review of BIA Order
 ALBERTO GONZALEZ, United States                        File No. A78 893 084
 Attorney,*

          Respondent.



                             ORDER AND JUDGMENT**


Before TACHA, Chief Circuit Judge, PORFILIO, Circuit Judge, and JOHNSON,
District Judge.***


      This petition for review challenges the Board of Immigration Appeals’ (BIA’s)

decision denying Petitioner Patrick Ariko’s motion to reopen based on ineffective



      *
       On February 4, 2005, Alberto R. Gonzales became the United States Attorney
General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Mr. Gonzales is substituted for John Ashcroft as the Respondent in this action.
      **
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        The Honorable William P. Johnson, United States District Court for the District
      ***

of New Mexico, sitting by designation.
assistance of counsel.

                                    BACKGROUND

       Petitioner Patrick Ariko is a 38 year-old native and citizen of Uganda who legally

entered the United States as a visitor on October 15, 1991. His permission to remain in

the United States expired on January 14, 1992. Removal proceedings were initiated,

based on Petitioner’s remaining in the United States as a non-immigrant for a longer time

than permitted. Mr. Ariko applied for asylum and withholding of removal in April, 1998,

claiming that he had suffered political persecution at the hands of the Ugandan regime

and would be picked up as a suspected anti-government rebel.

       Petitioner first appeared in immigration court for a calendaring hearing on October

3, 2001, with attorney David A. Senseney. The court held four more calendaring hearings

in the case: January 2, 2002, May 1, 2002, May 30, 2002 and June 20, 2002. The court

then scheduled three individual hearings in the case, on October 29, 2002, April 22, 2003

and April 13, 2004.1

       Mr. Ariko did not appear for the April 13, 2004 hearing. Based on his failure to

appear, the Immigration Judge entered an in absentia removal order against him, ordering

Petitioner removed from the United States to Uganda.

       On May 18, 2004, Petitioner filed with the Immigration Judge a “Motion to



       1
           The notices for the October 29, 2002 and April 22, 2003 indicated that Ariko
needed to provide fingerprints to the immigration court.

                                            -2-
Reopen Based upon Ineffective Assistance of Counsel.” He claimed that although he was

present when the Immigration Judge scheduled the April 13, 2004 hearing, he “did not

understand what happened” and claimed that Mr. Senseney promised to mail written

notice to him of the final immigration court date, but failed to do so.

       The Immigration Judge denied the motion to reopen on June 7, 2004, stating that

Petitioner “failed to keep in touch with his attorney.” Petitioner appealed the Immigration

Judge’s decision to the Board of Immigration Appeals (“BIA”). The BIA affirmed the

denial on January 25, 2005, affirmed the Immigration Judge’s decision, finding that

Petitioner “failed to set forth a claim of ineffective assistance of counsel that is compliant

with the [the BIA’s] decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d,

857 F.2d 10 (1st Cir. 1988).

                                       DISCUSSION

       Mr. Ariko filed a timely petition for review on February 23, 2005, within thirty

days of the BIA’s January 25, 2005 order. 8 U.S.C. § 1252(b)(1) (30 day time limit for

filing petition for review). The decision to grant or deny a motion to reopen proceedings

is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We review the BIA’s decision on a

motion to reopen only for an abuse of discretion, where the decision “provides no rational

explanation, inexplicably departs from established policies, is devoid of any reasoning, or

contains only summary or conclusory statements.” Infanzon v. Ashcroft, 386 F.3d 1359,

1362 (10th Cir. 2004); Gurung v. Ashcroft, 371 F.3d 718, 720 (10th Cir. 2004) (quoting


                                              -3-
Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003)).

       A respondent in removal proceedings who has been deported in absentia for

failure to appear at his final hearing may move to reopen the removal proceedings, but

must show that his failure to appear was due to exceptional circumstances beyond his

control. Tang v. Ashcroft, 354 F.3d 1192 (10th Cir. 2003). In Lozada, the BIA held that

an alien may move to reopen removal proceedings on the basis of ineffective assistance of

counsel but must meet three procedural requirements. First, he must present an affidavit

explaining his relationship with his attorney and the pertinent allegations of ineffective

assistance. Second, the attorney must be given an opportunity to respond to the

allegations. Third, he must either file a bar complaint against the attorney or provide an

adequate explanation why a bar complaint has not been filed.2

       Petitioner contends that the BIA abused its discretion in affirming the Immigration

Judge’s denial of his motion to reopen because he met the procedural requirements of

Lozada, and also contends that the BIA failed to set forth a discernible rationale for its

decision sufficient to enable a reviewing court to conduct a meaningful review.



       2
        In Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003), we assumed without
deciding that “an attorney’s deficient performance can amount to exceptional
circumstances under § 1229a(e)(1) sufficient to reopen removal proceedings. See also, Lo
v. Ashcroft, 341 F.3d 934, 936 (9th Cir. 2003) (citing In re Rivera-Claros, 21 I. & N. Dec.
599, 602, 1996 WL 580694 (BIA 1996), aff'd, 122 F.3d 1062 (4th Cir. Sept.3, 1997)
(unpublished decision)). In other words, the Lozada factors are a threshold procedural
requirement that generally must be satisfied before ineffective assistance of counsel can
be considered as an exceptional circumstance.

                                             -4-
I.     The Lozada Procedural Factors

       There is no dispute that Petitioner fulfilled the first and second requirements. The

dispute centers on the third requirement. Petitioner did not file a bar complaint, his stated

reason being that his attorney had made an inadvertent mistake so he had not engaged in

misconduct. The bulk of petitioner’s argument is that he complied with the third

requirement because Lozada does not require that a bar complaint always be filed, citing

to other federal circuit courts of appeals for this proposition.3

       In Lo v. Ashcroft, 341 F.3d at 938, petitioner did not file a formal bar complaint

because he realized that counsel’s error was “inadvertent” and he wished to give counsel

a “chance to correct the error.” The Fourth Circuit accepted petitioner’s explanation for

not filing a formal complaint because the circumstances indicated that petitioners “did all

they reasonably could to have their cases heard promptly.” Id. Unlike Mr. Ariko, Mr. Lo



       3
         However, these cases do not necessarily convince us that Mr. Ariko would not
have been required to complete the Lozada bar complaint requirement, even if the BIA’s
decision had addressed this issue as the basis for the denial. As these cases demonstrate,
the BIA has discretion to reject a reason for not filing a formal bar complaint when it is
not reasonable or otherwise acceptable. See, e.g., Xu Yong Lu v. Ashcroft, 259 F.3d 127,
135 (3d Cir. 2001) (rejecting petitioner’s reason for not filing complaint because former
counsel had acted on a pro bono basis); Stroe v. I.N.S., 256 F.3d 498, 500 (7th Cir. 2001)
(Board was entitled to reject petitioners’ explanation for not filing a complaint against
former counsel because “[i]t was not a good explanation[,]” where petitioners stated that
counsel had performed the service for which they paid him – filing a brief – although the
brief was untimely); but see, Esposito v. I.N.S., 987 F.2d 108, 111 (2d Cir. 1993)
(petitioner not required to file formal complaint where he had provided a reasonable
explanation in his affidavit for not doing so – a belief that former counsel had already
been suspended from the practice of law).

                                              -5-
called his attorney the day before the hearing to check on the hearing date, but was given

incorrect information about the hearing date from the secretary. In Mr. Ariko’s case, the

record indicates that not only did Mr. Ariko fail to keep in touch with his attorney, but

also at the April 13, 2004 hearing, Mr. Senseney advised the judge that he had been

unable to reach Mr. Ariko and that Mr. Ariko’s whereabouts were unknown to him. In

fact, Mr. Ariko was no where to be found when immigration officials looked for him after

he failed to appear for the last hearing.

       The question of whether petitioner met the third procedural requirements of

Lozada need not be answered in order to conduct a meaningful review of the BIA’s

decision. The procedural requirements of Lozada did not form the basis for either the

Immigration Judge’s order or the BIA’s affirmance. The Immigration Judge’s order

succinctly stated that petitioner “failed to keep in touch with his attorney.” The BIA found

that petitioner had “failed to set forth a claim of ineffective assistance of counsel that is

compliant with our decision in [Lozada]” as well as failed to show exceptional

circumstances for his failure to appear.

       The procedural requirements set forth in Lozada are essentially a “screening

device” which the BIA considers before considering the merits of ineffective assistance

claims. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). In order to prevail

on the merits of an ineffective assistance claim, a petitioner must show “that he was

prejudiced by his representative’s performance.” Lozada, 19 I&N Dec. at 638. In this


                                              -6-
case, the BIA’s denial of petitioner’s motion clearly went straight to the heart of the

claim, attributing any alleged prejudice claimed by Mr. Ariko on his own failure to keep

in touch with his attorney. It was not an abuse of discretion for the BIA to do so. See,

e.g., Rodriguez-Lariz v. I.N.S., 282 F.3d 1218, 1227 (9th Cir. 2002) (“[The Lozada ]

factors are not rigidly applied, especially when the record shows a clear and obvious case

of ineffective assistance”); Lo v. Ashcroft, 341 F.3d 934, 937 n.4 (9th Cir. 2003) (“We

seldom reject ineffective assistance of counsel claims solely on the basis of Lozada

deficiencies”).

       Thus, Petitioner’s arguments for his position that Lozada did not require him to file

a bar complaint in his situation is not relevant to the BIA’s denial of his motion to reopen,

because the denial was not based on any of the Lozada procedural deficiencies.

II.    Sufficient Rationale by the Agency

       Petitioner contends that there was no discernable rationale for the BIA to conclude

that Mr. Ariko had “failed to set forth a claim of ineffective assistance of counsel that

[was] compliant” with [the BIA’s] decision in Lozada.

       While the BIA is not required to provide a lengthy analysis of its decisions, it is

required to “announce its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.” Turri v. Immigration and

Naturalization Service, 997 F.2d 1306, 1310 (10th Cir. 1993); Mickeviciute,327 F.3d at

1163 n.3 (BIA decision must have enough information to enable reviewing court to


                                             -7-
conduct meaningful review.)

       Petitioner’s contention that the BIA abused its discretion in failing to provide a

reasoned basis for its decision finds no support in the record. The rationale in the BIA’s

decision is sufficiently clear for us to conduct a review. Petitioner’s motion to reopen

was based on ineffective assistance of counsel. The Immigration Judge’s order

articulated a specific reason why petitioner’s failure to appear could not be excused on

that basis but rather would be imputed to his own failure to keep in touch with his

attorney. The BIA affirmed the denial by concluding that petitioner’s claim failed under

Lozada, and failed as an exceptional circumstance which would excuse his failure to

appear. Failing to keep in touch with one’s attorney is not an exceptional circumstance

where it is not beyond one’s control. The record does not contain anything which would

suggest that keeping in touch with his attorney was beyond Mr. Ariko’s control.

       Petitioner cites to cases where we found that the BIA’s decision failed to articulate

a sufficiently reasoned basis for denying relief, and where we remanded to the BIA for

further explanation of its decisions. These cases are inapposite to the present situation.

For example, the Immigration Judge’s decision in Wiransane v. Ashcroft, 366 F.3d 889

(10th Cir. 2004) involved a credibility determination, which requires “specific, cogent”

reasons to support an adverse finding. Id. At 897-98. Credibility was not at issue in Mr.

Ariko’s case.

       In Turri and Mickeviciute, the other two cases relied on by petitioner, in which we


                                             -8-
found the Immigration Judge’s reasoning to be inadequate, the BIA’s decisions were

devoid of any explanation for the adverse decision. In Turri, the petitioner claimed

extreme hardship to support her eligibility for suspension of deportation. In the order

denying petitioner’s application, the Immigration Judge recited a laundry list of factors

which are taken into consideration for such a claim, then simply concluded that the

factors presented did not constitute extreme hardship. 997 F.2d at 1309. In Mickeviciute,

the Immigration Judge’s entire analysis began with a statement of the issue to be decided,

and ended by concluding merely that “[i]t would not be appropriate. . . to reopen the

proceedings for the purpose of permitting [Petitioner] to remain in the United States while

she seeks relief in the federal courts. . . .” No actual reason or rationale was provided for

that conclusion.

       The dissent in Mickeviciute stated that remand was “pointless” because while the

BIA’s opinion “may have been brief,” it “was clear, and it was not unreasonable.” 327

F.3d at 1167 (McConnell, J., dissenting). Remand is pointless here, as well, but for

another reason. In this case, there is no reason to question the adequacy of the BIA’s

order denying Mr. Ariko’s motion. The Immigration Judge provided a terse, but

nevertheless sufficient rationale for denying petitioner’s motion to reopen, which was

affirmed on appeal: that petitioner had not kept in contact with his attorney.

                                      CONCLUSION

       In sum, we find that Petitioner’s arguments for his position that Lozada did not


                                             -9-
require him to file a bar complaint in his situation is not relevant to the BIA’s denial of

his motion to reopen, because the denial was not based on any of the Lozada procedural

deficiencies. Further, we find that the BIA’s decision affirming the denial of Mr. Ariko’s

motion to reopen articulated a rationale sufficient to enable review by this Court.

Consequently, petitioner has failed to demonstrate that the BIA abused its discretion in

denying his motion to reopen, and his petition for review is DENIED. Petitioner’s motion




to proceed in forma pauperis is granted.



                                                          Entered for the Court


                                                          William P. Johnson
                                                          District Judge




                                             -10-
