
USCA1 Opinion

	




          October 29, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1569                                              EMERSON PIMENTEL,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                  __________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                 Torruella and Selya,                                   Circuit Judges.                                   ______________                                  __________________               Peter A. Allen on Motion to Hold Case in Abeyance.               ______________               Stuart  E.  Schiffer,  Acting  Assistant  Attorney  General,               ____________________          Robert  Kendall,  Assistant  Director,  and  Charles   E.  Pazar,          _______________                              ___________________          Attorney,  Office  of  Immigration  Litigation,  on    Motion  to          Dissolve Automatic Stay of Deportation.                                  __________________                                  __________________                      Per  Curiam.  Petitioner seeks review of the May 6,                      ___________            1993 order of the Board  of Immigration Appeals (BIA) denying            petitioner's motion to reopen deportation proceedings so that            petitioner   might  apply   for  discretionary   relief  from            deportation.   We  summarily  affirm the  May 6,  1993 order,            grant  the INS's  motion to  dissolve the  automatic  stay of            deportation, and  deny petitioner's motion to  hold appellate            proceedings in abeyance.                                          I                 Petitioner  was  ordered  deported  after  he failed  to            appear  at  a  deportation hearing  or  present  any defense.            Petitioner promptly  appealed to the BIA and  moved to reopen            the deportation  proceedings so  that petitioner might  apply            for discretionary  relief  from  deportation.    Petitioner's            motion to reopen,  filed by his first counsel, indicated that            petitioner had not received notice of the deportation hearing            because  INS correspondence  had been  sent to an  address at            which petitioner "was not residing at the time of delivery."                 The BIA dismissed  the appeal and denied reopening.   In            so doing, it  pointed out that petitioner's  motion to reopen            had  not  been  accompanied  by  affidavits  and  evidentiary            material  as required  by  8  C.F.R.    3.8(a)  and that  the            address petitioner had stated in his notice of appeal was the            very address to which INS correspondence had been sent.                                         -2-                 Petitioner, represented  by new counsel,  promptly moved            to  reopen  once again,  this  time  filing affidavits.    He            claimed he had never told  his first counsel that he did  not            live  at the  address to  which INS  correspondence had  been            sent;   he  simply  had  not  received   any  notice  of  the            deportation hearing.  Petitioner's mother stated by affidavit            that she had the only key to the residence's mailbox and she,            too,  had not  received notice  of  the deportation  hearing.            Petitioner argued he  should not be  penalized for his  first            counsel's failings.                 Concluding  that petitioner  had  not complied  with the            requirements set forth in Matter of Lozada, 19 I & N Dec. 637                                      ________________            (BIA  1988),  for  seeking  reopening based  on  a  claim  of            ineffective   assistance   of   counsel,   the   BIA   denied            petitioner's motion to reopen.  Petitioner now seeks judicial            review of that decision.                                          II                 In Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), where                    ________________            an  appeal  from  a  deportation  order  had  been  summarily            dismissed because no brief had  been filed, the BIA announced            a  "high standard"  for motions  seeking  reopening based  on            claims of ineffective assistance of counsel:                 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.    In  the case                 before   us,  that   affidavit  should   include  a                 statement that  sets forth in detail  the agreement                                         -3-                 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  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.                      The high standard announced here is  necessary                 if we  are  to  have  a  basis  for  assessing  the                 substantial  number  of  claims   of    ineffective                 assistance of  counsel that come  before the Board.                 Where  essential  information  is  lacking,  it  is                 impossible to evaluate the substance of such claim.                 In the instant  case, for  example, the  respondent                 has not alleged, let alone established, that former                 counsel ever agreed to prepare a  brief on appeal .                 . ..  The requirement that disciplinary authorities                 be notified of breaches of professional conduct not                 only   serves   to   deter   meritless  claims   of                 ineffective representation but  also highlights the                 standards which should be expected of attorneys who                 represent persons in immigration proceedings . . ..                 The  BIA  concluded  petitioner had  not  complied  with            Lozada as petitioner had not detailed his agreement  with his            ______            first counsel, had  not shown whether  he had notified  first            counsel of  his charges, and  had failed to state  whether he            had filed a disciplinary complaint.                 The   BIA  did  not  abuse  its  discretion  in  denying            petitioner's motion to reopen.  First, petitioner's affidavit            was very  sketchy in  describing his  arrangement with  first            counsel.   Petitioner stated that within a  week of receiving                                         -4-            an order to show cause why he should not be deported,  he had            contacted counsel, whom, petitioner claimed "had already been            paid  for this  case"; counsel  had  said not  to worry;  and            petitioner  "was under  the  impression" that  counsel  would            enter an appearance.  After  receiving a copy of the decision            ordering deportation, petitioner had again contacted counsel.            Counsel had again  told petitioner not to worry  and that "he            would get  me my United States citizenship." One of counsel's            employees then helped petitioner file a notice of appeal, and            petitioner paid the employee $620.                   The BIA  could reasonably conclude  that petitioner  had            not  sufficiently  detailed   his  agreement  with   counsel.            Petitioner  asserted that  counsel had  been  paid for  "this            case,"  yet petitioner was  only "under the  impression" that            counsel  would  file  an appearance.    Petitioner  failed to            detail what counsel actually agreed to do with respect to the            deportation proceedings.                  Second, petitioner  failed timely  to show  that he  had            notified first counsel of his  allegations against him.  In a            supplement to  his motion  to reopen,  petitioner claimed  to            have  notified counsel  by letter and  purported to  attach a            copy  of the letter,  but failed to  do so.   Even though the            BIA's  May 6,  1993 order  put  petitioner on  notice of  the            letter's omission,  petitioner  apparently did  not submit  a            copy until  over three  months later with  the filing  of his                                         -5-            third  motion to reopen.   Such piecemeal  presentation, with            its potential for  an unwarrantable delay of  deportation, is            what Lozada's "high standard" is aimed at preventing.                 ________                 Third,  petitioner refused to state whether he had filed            disciplinary proceedings  against his  counsel.   He  claimed            that   "Supreme  Court   Rule   No.   4221,   regarding   the            confidentiality of  Disciplinary Complaints" barred  him from            saying whether  a complaint had  been filed.   Petitioner did            not attach a copy of the rule from which the BIA could make a            determination   whether   petitioner's   interpretation   was            warranted.1                  In  view of  the motion's  deficiencies,  the BIA  acted            within its discretion in denying reopening.                                         III                 Petitioner asks  that we  hold appellate  proceedings in            abeyance until the  BIA acts on a third  motion for reopening            petitioner  filed through  a third  counsel  in August  1993.            Because  of     1105a's  automatic  stay,  holding  appellate            proceedings  in  abeyance  would  be  tantamount  to  staying            deportation  pending  determination   of  petitioner's  third            motion to reopen. After reviewing the motion and the relevant                                            ____________________            1.  Petitioner has apparently abandoned his interpretation of            the Rhode Island rule, for in his third  motion to reopen, he            indicates  he filed a complaint against first counsel in late            July,  almost  two months  after  the BIA  denied  the second            motion  to  reopen.    The  disciplinary  complaint  is  very            sketchy.                                         -6-            considerations, see  Berroteran-Melendez v. I.N.S.,  955 F.2d                            ___  _____________________________            1251,  1255 (9th  Cir.  1992), we  decline  to stay  judicial            proceedings.    We note that petitioner has  requested a stay            of deportation  from the BIA, and we think  the BIA is in the            best position to assess whether such relief is warranted.                 The May 6,  1993 order denying reopening is affirmed and            the I.N.S.'s motion to lift the automatic stay is granted.                                                         -7-
