## Facts

- Mark Saakian, a native and citizen of Armenia, entered the United States as a nonimmigrant visitor and applied for asylum.
- After the asylum application was denied, he was placed in deportation proceedings before an Immigration Judge (IJ).
- Saakian retained a non-attorney accredited representative authorized to appear in deportation hearings.
- The representative filed a motion to change venue and advised Saakian that he did not need to attend the scheduled hearing.
- Saakian did not appear, and the IJ ordered him deported in absentia.
- Acting pro se, Saakian moved to reopen, asserting he missed the hearing due to the representative’s erroneous advice and ineffective assistance.
- The IJ treated the motion as an ineffective-assistance claim and required compliance with Matter of Lozada’s evidentiary prerequisites.
- The IJ found Saakian satisfied only one Lozada requirement and denied reopening, implying the deficiencies could not be cured through a new filing.
- The BIA affirmed, and Saakian petitioned for judicial review.

## Issues

1. Whether the IJ and BIA abused their discretion, or denied due process, by denying a motion to reopen based on a claim that an accredited representative’s erroneous advice caused an in absentia deportation order.
2. Whether Lozada’s requirements may be applied so rigidly—especially to a pro se movant—that the movant is effectively barred from curing curable deficiencies and obtaining consideration of the ineffective-assistance claim.

## Decision

- The court granted the petition in part and denied it in part.
- The court held the agency abused its discretion by treating the motion as irrevocably defective under Lozada and by effectively foreclosing the opportunity to amend or refile to correct procedural deficiencies.
- The court did not reject Lozada as a screening framework, but required a non-mechanical application that preserves a meaningful opportunity to present the claim.
- The court remanded for further proceedings so the motion to reopen could be considered under the governing reopening regulations with an appropriately flexible application of Lozada.

## Legal Principles

- Motions to reopen are reviewed for abuse of discretion under the applicable reopening regulations for IJ proceedings.
- Ineffective-assistance claims in immigration proceedings may be evaluated under the Matter of Lozada framework, which generally calls for (1) an affidavit detailing the representation agreement and failures, (2) notice to prior representative with an opportunity to respond, and (3) a disciplinary complaint or an explanation for not filing one.
- Lozada functions as a procedural screening device and should not be treated as a jurisdictional or permanently preclusive bar when defects are curable.
- Due process in deportation proceedings requires a full and fair hearing and a meaningful opportunity to be heard; misleading advice from an authorized representative that causes a failure to appear can implicate that right.
- Where a pro se movant plausibly alleges that an in absentia order resulted from authorized representative misconduct, the agency must not deny reopening in a manner that prevents the movant from correcting procedural omissions and presenting the claim on an adequate record.

## Conclusion

The First Circuit remanded because the agency’s rigid, preclusive use of Lozada to deny a pro se motion to reopen—despite allegations that an accredited representative’s incorrect advice caused the nonappearance—was an abuse of discretion that impaired Saakian’s meaningful opportunity to be heard.


Saakian v. Immigr. & Naturalization Serv., 252 F.3d 21 (1st Cir. 2001)