Correa-Rivera v. Holder

In an ineffective assistance of counsel claim, an alien meets the third Lozada requirement, that "the motion should reflect whether a complaint has been filed" with proper authorities, by including a copy of a complaint to the state bar.

In 2006, Marco Antonio Correa-Rivera surrendered to immigration authorities after being in the U.S. illegally for thirty years. Correa-Rivera conceded removability to the immigration judge (IJ) but said he wanted to apply for cancellation of removal. Correa-Rivera gave the filled out application with supporting documents to his lawyer before the April 6, 2007 deadline, but the lawyer did not file the papers or notify Correa-Rivera the application was overdue. After six months, the "IJ deemed Correa-Rivera's application abandoned." Correa-Rivera appealed to the Board of Immigration Appeals (BIA), alleging ineffective counsel resulted in denial of due process. The BIA affirmed the IJ's decision that Correa-Rivera "had not complied with all the procedural requirements set out in Matter of Lozada." Correa-Rivera petitioned for review. The BIA held Correa-Rivera failed to comply with the third Lozada requirement by not providing "correspondence from the Bar indicating receipt of the complaint." Lozada does not require petitioner's to provide "probative evidence" of submitting a bar complaint, only that the motion reflect if a complaint has been filed. The first two Lozada requirements are explicit in requiring specific documents or actions outside the motion. However, the third requirement states only that "the motion should reflect whether a complaint has been filed" with proper authorities. A straightforward interpretation of "reflect" does not suggest that "probative evidence" of a complaint to the state bar be presented by Petitioner. When an alien's "lawyer fails to timely file application," a valid claim of ineffective counsel has been presented. Therefore, the BIA abused in discretion in misapplying Lozada. Here, Correa-Rivera faults the lawyer for the missed deadline and the lawyer admitted to his failing "under penalty of perjury." The lawyer's "dereliction of duty" would prejudice Correa-Rivera if the "performance was so inadequate as to affect the outcome." By failing to timely file the application, the lawyer disclosed Correa-Rivera's ability to apply for cancellation of removal resulting in prejudice. PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED.