Immigration – Effectiveness of counsel

Where a petitioner’s motion to reopen her appeal based on her counsel’s ineffective assistance for failing to file a brief was denied by the Board of Immigration Appeals, a remand must be ordered because (1) the BIA did not explain how the petitioner failed to meet the requirements of Lozada v. INS, 857 F.2d 10 (1st Cir. 1988), (2) there is a reasonable probability of prejudice based on counsel’s ineffectiveness, and (3) the BIA was on notice of the petitioner’s potentially meritorious argument on appeal.

“Colombian citizen Luz Stella Buckley brings two petitions for review of adverse decisions by the Board of Immigration Appeals (‘BIA’). In the first, Buckley challenges the BIA’s dismissal of her appeal from an immigration judge’s (‘IJ’) order denying her application for adjustment of status. We reject this petition primarily because Buckley did not file a timely brief with the BIA.

“In the second petition, Buckley challenges the BIA’s denial of her motion to reopen her appeal based on her counsel’s ineffective assistance for failing to file a brief. We grant this petition because the BIA abused its discretion in denying the motion to reopen. The BIA provided no explanation for its conclusion that Buckley failed to satisfy the procedural requirements for reopening an appeal based on ineffective assistance of counsel. And because the BIA overlooked Buckley’s strong argument for vacating the IJ’s order denying adjustment of status, there is a reasonable probability that Buckley was prejudiced by her counsel’s ineffectiveness. …

“As mentioned above, the BIA denied Buckley’s motion to reopen for three reasons: (1) failure to comply with the Lozada requirements; (2) failure to establish that her counsel’s ineffectiveness caused her prejudice; and (3) failure to provide the BIA with a copy of her brief when filing her motion to reopen. None of these reasons withstands abuse-of-discretion scrutiny. …

“The BIA’s order denying Buckley’s request to reopen states that ‘there has not been substantial compliance’ with the Lozada requirements. But the BIA provided no further explanation for this conclusion. … For all that appears from the record, Buckley substantially complied with the Lozada requirements. If she failed in some meaningful way, it is unclear to us how she did so. …

“The BIA’s lack-of-prejudice basis for denying the motion to reopen fares no better. …

“In any event, this case involves a potentially substantial flaw in the proceedings before the IJ that could have been rectified by Buckley’s counsel having filed a timely brief before the BIA. The IJ based her order denying adjustment of status on several findings for which the hearing record contains no factual predicate. … Nevertheless, these unexplored subjects became the basis for the IJ’s key adverse conclusion that while Buckley’s ‘criminal incidents are far in the past … the lack of any remorse and the fact that there were two criminal incidents does not compel a conclusion that [Buckley] will refrain from future criminal acts.’ …

“… After matching the IJ’s basis for decision with the content of Buckley’s hearing, we lack assurance that there was a fair proceeding, as is required in evaluating whether a noncitizen receives the effective assistance of counsel. …

“Despite this troubling record, the BIA denied the motion to reopen on the basis that counsel ‘has not identified any material issues that should have be raised or addressed on appeal.’ That conclusion was an abuse of discretion.

“Since the initial filing misstep, Buckley’s counsel has attempted to raise the deficient-record argument at every turn. … In short, Buckley consistently attempted to raise an argument before the BIA about the IJ’s failure to build an adequate record to support her basis for denying adjustment of status but was denied ‘a fair opportunity to have [the argument] considered[.]’ … And, as we have explained, this is a substantial argument. Thus, Buckley has demonstrated that her counsel’s ineffectiveness in failing to file a timely brief caused ‘a reasonable probability of prejudice’ in the resolution of her BIA appeal. …

“In sum, Buckley has demonstrated that the BIA abused its discretion in denying her motion to reopen. The BIA did not explain how she failed to meet the Lozada requirements; there is a reasonable probability of prejudice based on counsel’s ineffectiveness; and the BIA was on notice of Buckley’s potentially meritorious argument on appeal. …

“For the reasons stated, we deny Buckley’s petition for review of her BIA appeal and grant Buckley’s petition for review of her motion to reopen her appeal based on ineffective assistance of counsel. The case is remanded for further proceedings consistent with this opinion.”

Buckley v. Blanche (Lawyers Weekly No. 01-114-26) (19 pages) (Aframe, J.) Stephen McCall Born, with whom Mills and Born, were on brief, on appeal for the petitioner; Allison Frayer, with whom Brett Shumate and Sarah Byrd were on brief, for the respondent (Docket Nos. 24-1957 and 25-1186) (May 29, 2026).

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