## Facts

- Lozada, a lawful permanent resident from the Dominican Republic, was found deportable under INA § 241(a)(4) based on a crime involving moral turpitude committed within five years of entry with a sentence of at least one year.
- The immigration judge denied discretionary relief under former INA § 212(c) and denied voluntary departure, ordering deportation.
- Lozada filed a notice of appeal to the BIA stating that a brief would be submitted, but no brief or supporting statement was filed.
- The BIA summarily dismissed the appeal because Lozada did not meaningfully identify errors in the immigration judge’s decision.
- Represented by new counsel, Lozada moved to reopen, alleging ineffective assistance by prior counsel (primarily failure to file the promised brief) and asserting error in denial of § 212(c) relief and voluntary departure.

## Issues

1. What procedural showing is required for a motion to reopen or reconsider based on ineffective assistance of counsel in immigration proceedings?
2. Whether an alien deportable under INA § 241(a)(4) is eligible for voluntary departure without meeting the heightened requirements of INA § 244(a)(2).
3. Whether the case warranted reopening based on alleged ineffective assistance and claimed errors in the denial of discretionary relief.

## Decision

- The BIA denied the motion to reopen.
- The BIA held that motions to reopen or reconsider based on ineffective assistance of counsel will not be granted unless specific procedural requirements are satisfied.
- The BIA held that an alien deportable under INA § 241(a)(4) is statutorily ineligible for voluntary departure unless the alien qualifies under INA § 244(a)(2), including ten years of continuous presence and good moral character after the conviction.
- Applying these rules, the BIA concluded Lozada’s showing did not justify reopening and that he was ineligible for voluntary departure as a matter of law.

## Legal Principles

- A motion to reopen or reconsider based on ineffective assistance of counsel must include:
  - An affidavit from the respondent detailing the agreement with former counsel, what counsel agreed to do, and what counsel did or did not do.
  - Proof that former counsel was informed of the allegations and given an opportunity to respond.
  - A statement indicating whether a complaint was filed with appropriate disciplinary authorities regarding counsel’s conduct and, if not, an explanation.
- Ineffective assistance claims must be supported by specific facts sufficient to permit evaluation of whether counsel breached the engagement and whether representation fell below a minimally competent level.
- The respondent must show prejudice from counsel’s deficient performance sufficient to establish that the proceedings were rendered unfair or that the outcome was adversely affected.
- An alien deportable under INA § 241(a)(4) is ineligible for voluntary departure unless the alien satisfies INA § 244(a)(2), which for criminal offenders requires at least ten years of continuous physical presence and good moral character following the conviction.

## Conclusion

The BIA established procedural prerequisites for reopening based on ineffective assistance of counsel—affidavit details, notice to prior counsel with a chance to respond, and a disciplinary-complaint statement—while also holding that certain criminal deportees are statutorily barred from voluntary departure unless they meet the post-conviction requirements of INA § 244(a)(2).


Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988)