## Facts

- Three noncitizen respondents (Compean, Bangaly, and J-E-C- and family) had sought reopening of removal proceedings based on claims of ineffective assistance of counsel.
- In each matter, the Board of Immigration Appeals (BIA) denied reopening.
- The Attorney General previously issued an opinion that denied reopening and replaced the existing ineffective-assistance framework associated with *Matter of Lozada*.
- On reconsideration, the Attorney General reviewed whether that replacement framework should remain in effect and what interim standards should govern.

## Issues

1. Whether the prior Attorney General decision replacing the *Lozada* approach for ineffective-assistance claims in removal proceedings should remain in effect.
2. What standards and procedures should govern motions to reopen alleging ineffective assistance while the Department considers any changes through rulemaking.
3. What disposition should be made of the three respondents’ cases in light of the governing framework.

## Decision

- The Attorney General granted reconsideration.
- The Attorney General vacated the prior Attorney General decision in its entirety.
- Pending rulemaking, the Attorney General directed immigration judges and the BIA to apply the preexisting *Lozada*-based standards for motions to reopen premised on ineffective assistance of counsel.
- The Attorney General remanded all three cases to the BIA for further proceedings under those preexisting standards.
- The Attorney General directed the Executive Office for Immigration Review to initiate rulemaking to evaluate whether and how the administrative framework for ineffective-assistance claims should be modified.

## Legal Principles

- Absent a duly adopted replacement through rulemaking, the agency must apply the established *Lozada* framework and its progeny when adjudicating ineffective-assistance-based motions to reopen.
- Broad changes to the administrative handling of ineffective-assistance claims should proceed through notice-and-comment rulemaking rather than a single adjudicative opinion that announces generally applicable procedures.
- When an agency change risks conflict with existing federal court approaches and is adopted without adequate opportunity for focused input, vacatur and return to prior standards may be warranted while the agency considers revisions.

## Conclusion

The Attorney General set aside the prior restrictive ineffective-assistance framework, restored the preexisting *Lozada* standards as the interim rule for reopening based on attorney error, remanded the respondents’ cases to the BIA for reconsideration under those standards, and ordered rulemaking to determine whether future modifications are appropriate.


Matter of Compean, Bangaly & J-E-C-, 25 I. & N. Dec. 1 (A.G. 2009)