                   Not for Publication in West's Federal Reporter


             United States Court of Appeals
                          For the First Circuit

No. 06-1265

                       VICTOR JOSUE CAMPOS-JAVIER,

                                  Petitioner,

                                        v.

           ALBERTO GONZALES, United States Attorney General,

                                  Respondent.


                 ON PETITION FOR REVIEW OF AN ORDER OF

                   THE BOARD OF IMMIGRATION APPEALS


                                     Before

                   Lynch and Howard, Circuit Judges,

                       and Young,* District Judge.


     Jorge Guttlein and Associates on brief for petitioner.
     Peter Keisler, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, and Robbin K. Blaya,
Attorney, Office of Immigration Litigation, United States
Department of Justice, on brief for respondent.



                                 July 30, 2007




*
    Of the District of Massachusetts, sitting by designation.
             Per Curiam.         Victor Josue Campos-Javier seeks review of

an order of the Board of Immigration Appeals ("BIA") rejecting his

claim   of    ineffective         assistance         of    counsel       in   the    removal

proceedings against him.             We deny the petition.

             Campos-Javier,          a   citizen      of    the    Dominican        Republic,

entered    the     United      States    at    San    Juan,       Puerto      Rico    without

inspection in 1994.            He soon married a United States citizen, who

later filed a visa application, known as an "I-130," on his behalf

in 1995.      See 8 U.S.C. § 1154(a)(1)(A)(i) (2007); 8 C.F.R. §

204.2(a)(1) (2007).             After this application had been approved,

Campos-Javier sought to adjust his immigration status to that of a

lawful permanent resident, filing an "I-485" application.                              See 8

U.S.C. § 1255(i) (2007); 8 C.F.R. §                        245.2 (2006).             But, in

September 1998, while that application was pending, his wife

withdrew     the   visa     application,        citing          "domestic     violence    and

because we have not lived together for a long time."1

             Because      he    no   longer     had       the    visa,    Campos-Javier's

application for adjustment of status was denied on June 30, 2000.

See 8 C.F.R. § 245.1(c)(4).                   The INS simultaneously commenced

removal proceedings against him and took him into custody in Puerto

Rico.   Campos-Javier retained an attorney to represent him in the

removal proceedings. At the initial hearing before the immigration



1
 The lawful status conferred by a visa can be revoked at any time
for "good and sufficient cause." 8 U.S.C. § 1155 (2007).

                                           -2-
judge ("IJ"), the attorney explained that Campos-Javier's wife, who

was at that time pregnant with their second child, would be willing

to file another I-130 on his behalf, but that more time was needed

to explore possible avenues of relief from removal.                  The IJ

continued proceedings for one week.

           When   they   reconvened,    Campos-Javier,    acting   through

counsel, made a request for voluntary departure.          The IJ granted

it, giving Campos-Javier four months to leave the country.            See 8

U.S.C. § 1229c(a)(1).      His attorney has since explained that she

did not pursue adjustment of status based on Campos-Javier's

marriage to an American citizen because, at that time, he no longer

had a visa "immediately available" as required for such relief.

See   8 U.S.C. § 1255(i)(2)(B).    The attorney recalls that she did

ask the IJ--off the record--to continue the proceedings so that

another I-130 visa application could be filed and processed, but

that the IJ denied the request.2        Campos-Javier's wife eventually

filed another I-130 application on his behalf, but not until May

2003; it was approved in January 2005.

           Campos-Javier did not comply with the voluntary departure

order.   Instead, more than three years later, he filed a motion to

reopen   the   removal   proceedings.     The   motion,   prepared    by   a



2
 Though INS rules require off-the-record discussions at removal
hearings to be summarized on-the-record, that did not occur here,
at least according to the fragmentary transcript of the proceedings
provided to us.

                                  -3-
different lawyer, claimed that Campos-Javier's prior counsel had

provided ineffective representation by failing to advise him of

what he claimed was an opportunity to seek adjustment of status and

by counseling him to seek voluntary departure instead.      The IJ

denied the motion to reopen, explaining that she was reluctant to

second-guess the strategy of predecessor counsel.     The IJ also

ruled that, in any event, Campos-Javier had violated the voluntary

departure order and therefore was barred from seeking adjustment of

status for ten years.   8 U.S.C. § 1229c(d) (2007).

          Campos-Javier appealed the denial of his motion to reopen

to the BIA, which adopted and affirmed the IJ’s decision.   The BIA

also ruled that Campos-Javier had not complied with its procedural

requirements for prosecuting an ineffective assistance of counsel

claim as set forth in In re Lozada, 19 I. & N. Dec. 637 (BIA),

aff'd sub nom. Lozada v. INS, 857 F.2d 10 (1st Cir. 1988).

Specifically, the BIA found that Campos-Javier had not informed his

former attorney of the charge of ineffective assistance against her

and provided her with an opportunity to respond.

          Campos-Javier then filed a motion asking the BIA to

reconsider its decision.   He argued that his prior counsel was, in

fact, informed of his ineffective assistance claim, because he had

filed a complaint against her with the Disciplinary Committee of

the United States District Court for the District of Puerto Rico,

which, in turn, would have provided her with notice of the claim.


                                -4-
Campos-Javier also explained that he had not complied with the

voluntary departure order because of the hardship that leaving the

country would cause his wife and children.

            The BIA denied the motion to reconsider, concluding that

the motion failed to identify any error of law or fact in the BIA's

previous decision. See 8 C.F.R. § 1003.2(b). Campos-Javier sought

further relief by filing a petition for writ of habeas corpus in

the United States District Court for the Southern District of New

York.    While the petition was pending, however, the REAL ID Act

took effect, resulting in the transfer of the case to this court.

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106(c), 119

Stat. 231, 311.     We treat the transferred habeas petition as a

petition for review of a final order of removal under 8 U.S.C. §

1252.    See, e.g., Grigous v. Gonzales, 460 F.3d 156, 159 (1st Cir.

2006).

            Campos-Javier argues that the BIA should have granted his

motion to reconsider because he "substantially complied" with the

procedural requirements for making an ineffective assistance of

counsel claim set forth in Lozada.     We review the BIA's denial of

a motion to reconsider for abuse of discretion.    Zhang v. INS, 348

F.3d 289, 293 (1st Cir. 2003).

            The BIA refused to reconsider its decision that Campos-

Javier had failed to satisfy one of the Lozada prerequisites to an

ineffective assistance of counsel claim.    Those prerequisites are:


                                 -5-
     (1) an affidavit describing in detail the agreement
     between the alien and his counsel regarding the
     litigation matters the attorney was retained to address;
     (2) evidence that the alien informed his counsel as to
     the alien’s ineffective assistance allegations and
     afforded counsel an opportunity to respond; and (3)
     evidence that the alien had either filed a complaint with
     the appropriate disciplinary authority regarding the
     attorney’s ethical or legal misfeasance, or a valid
     excuse for failing to lodge such a complaint.

Betouche v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004) (quoting

Lozada, 19 I. & N. Dec. at 639).          We have recognized that the BIA

adopted these requirements "to enable the efficient screening of

frivolous, collusive or dilatory claims" of ineffective assistance.

Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004).               We have also

recognized, then, that the BIA may hold a petitioner to the Lozada

requirements, provided it does so in a non-arbitrary manner.                  See,

e.g., Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir. 2006); Asaba v.

Ashcroft, 377 F.3d 9, 10 (1st Cir. 2004); Betouche, 357 F.3d at 149

n.2; Saakian v. INS, 252 F.3d 21, 26 (1st Cir. 2001).

           Here,    the     BIA   rejected    Campos-Javier's     ineffective

assistance claim under Lozada because he had not informed his

former attorney of the allegations against her and allowed her the

opportunity to respond to them. Campos-Javier argues, as he did in

his motion to reconsider, that lodging those allegations with the

Disciplinary      Committee       functionally     satisfied     the     notice

requirement, because the Committee itself would have provided the

attorney   with    the    opportunity    to   respond.    But   we    expressly

rejected   this    argument    in   Betouche,    where   we   found    that   the

                                        -6-
petitioner had not notified his lawyer within the contemplation of

Lozada by filing a complaint against him with the Massachusetts

Board of Bar Overseers.      357 F.3d at 151.        There, we reasoned that

the filing "simply established that [the petitioner] had notified

the Board of Bar Overseers of his complaint, not that either he or

the Board had notified [prior counsel]."         Id.

            The   same   reasoning    applies   here,        where    the   record

provides no indication that the Disciplinary Committee notified

Campos-Javier's former attorney of his complaint.                    In fact, the

Committee responded to the complaint by asking Campos-Javier to

provide "the actual case number" so that it could "answer his

question"--but he did not respond to the Committee until more than

five months later, right after the BIA had already denied his

motion to reopen because, inter alia, there was no evidence that he

notified his prior counsel of his ineffective assistance claim as

dictated by Lozada.      Moreover, even when Campos-Javier moved for

reconsideration of this ruling, he did not apprise the BIA of his

response to the Committee.       So we cannot consider the effect of

that response, if any, on the question of whether the Committee in

fact notified his previous attorney of the complaint; the response

was never made part of the record before the BIA.               See Asaba, 377

F.3d at 12; Betouche, 357 F.3d at 151.

            Though   Campos-Javier     relies   on    the     Committee's    rule

affording   an    attorney   facing    allegations      of    misconduct     "the


                                      -7-
opportunity   to   be     heard,"    that      rule   applies   only    when   such

allegations, "if substantiated, would warrant discipline on the

part of an attorney admitted to practice before this Court."

D.P.R. R. 85.3(b).       So the rule alone provides no basis for finding

that the Committee actually notified prior counsel of Campos-

Javier's complaint and, as we have noted, the record is devoid of

any other materials supporting that conclusion.

           Furthermore, as we held in Asaba, Lozada demands that

counsel targeted by an ineffective assistance claim "be provided an

opportunity to respond before filing the motion to reopen."                    377

F.3d at 12 (emphasis added).             In this way, "[t]he Lozada notice

requirement provides a mechanism by which the [IJ] and the BIA 'may

more accurately assess the merits of a petitioner's ineffective

assistance claim.'" Id. (quoting Reyes v. Ashcroft, 358 F.3d 592,

599 (9th Cir. 2004)).         That mechanism cannot function when the

attorney   does    not    learn     of   her    former   client's      ineffective

assistance claim until after the BIA has decided whether to grant

reopening on that basis.          Even if we could conclude that Campos-

Javier's response to the Committee resulted in notice to his

previous attorney, then, that notice still would have come too late

to satisfy Lozada.       See Asaba, 377 F.3d at 12.

           Finally, Campos-Javier argues that he should not have

been held to "strict adherence" to the notice requirement, because

his failure to honor it was "beyond [his] control" in light of his


                                         -8-
difficult family circumstances at the time he sought reopening.

Though we have assumed that the "Lozada requirements might be

excused where [the] alien demonstrated diligent (albeit deficient)

efforts to comply," Betouche, 357 F.3d at 150 (citing Ontiveros-

Lopez v. INS, 213 F.3d 1121, 1124-25 (9th Cir. 2000)), we cannot

consider   such   an   argument   here,   because   Campos-Javier   never

presented it to the BIA.          See, e.g., Molina De Massenet v.

Gonzales, 485 F.3d 661, 664 (1st Cir. 2007).           The petition for

review is denied.

     So Ordered.




                                   -9-
