Noncitizens facing removal must have a meaningful opportunity to present their cases to an immigration judge. On occasion, noncitizens are deprived of this opportunity due to their lawyers’ incompetence or mistake. Although the government has recognized the need for a remedy for ineffective assistance of counsel, see Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The Council has long worked to protect the right to effective assistance of counsel for noncitizens in removal proceedings.

The Council has filed amicus briefs on this issue to the BIA and the Second and Fourth Circuit Courts of Appeals. In one, Labissiere, the BIA rejected the noncitizen's claim that he received ineffective assistance of counsel during his removal proceedings, finding that the noncitizen had failed to comply with the procedural requirements set forth in Matter of Lozada. The Second Circuit recognizes that individuals seeking to prove ineffective assistance need only substantially comply with the Lozada requirements. However, the court has provided little additional guidance, leading to a patchwork of unpublished decisions from the court and the BIA interpreting what amounts to compliance with the requirements.

The Council submitted an amicus brief urging the court to broadly interpret the phrase “substantial compliance,” especially where ineffective assistance is clear on the record, where the individual making an ineffectiveness claim is detained or appearing pro se, and where the individual has provided a valid explanation for failure to comply with one or more of the Lozada requirements. After the Petitioner and amicus briefs were filed, the BIA granted the petitioner’s motion to reopen and the Second Circuit dismissed the petition for review.