Background

In 1984, the Supreme Court set the standard for cases to be re-examined if an attorney commits a mistake that causes damage to their client’s interests, in Strickland v. Washington. But in 1988, the immigration courts deviated from the established standard and introduced obstacles that resulted in unfair and unjust outcomes.

In 1988, the Board of immigration Appeals (BIA) issued the Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), which set the standard for cases with ineffective assistance of counsel involving immigration litigation cases.

What is ineffective assistance of counsel (IAC)?

When a client receives poor legal guidance from a lawyer, or when the attorney fails to correctly or promptly submit documents to the court or agency, it can be attributed to incompetence or human error, it is known as Ineffective Assistance of Counsel (IAC).

If a client receives an unfavorable outcome due to previous ineffective assistance of counsel they can argue for their case to be reopened and reviewed. The Supreme Court set the standard for ineffective assistance in Strickland v. Washington, which established a two-part criteria for determining IAC:

  1. Did the previous attorney provide assistance that was below the accepted standard of reasonableness?
  2. Would the outcome of the proceeding have been different if the prior attorney had not provided ineffective assistance?

What is the Lozada Matter?

For any appeal to reopen a case based on IAC, in addition to providing IAC with Strickland criteria, the Lozada Matter also calls for the following:

  1. An affidavit form the client validating the facts
  2. Prior to filing a motion, the former counsel must be notified and given a chance to reply.
  3. A complaint to the bar should be submitted.

The Matter of Lozada, uses the state bar complaint system, which unnecessarily imposes challenges on immigrants, attorneys, and state bar associations when IAC occurs in removal proceedings.

The filing of a bar complaint is an unnecessary measure that wastes time, effort, and money, since the state’s bar decision is not considered by immigration court. The Matter of Lozada creates an unnecessary obstacle for immigrants seeking justice due to IAC.

It also intensifies the issue of access to legal representation since immigration attorneys can decide to not take a case because of the requirement of a bar complaint. An attorney may refuse to take the case because it would mean filling a bar complaint against a colleague, which can significantly impact the attorney professionally and mentally.

Proposed Changes

US Senator Chris Murphy proposed the bill “Strengthening Immigration Procedures Act of 2024”, which aims to eliminate the necessity for filing a bar complaint in IAC cases and align the immigration law with the standards set in Strickland v. Washington.

The American Immigration Lawyers Association (AILA) encourages Congress to act on Senator Chris Murphy’s bill. AILA also strongly recommends that the Biden Administration rectify the legal standard and mandate immigration courts to once again follow the Strickland standard.