Opinion
CIVIL ACTION NO. 00-2128
February 9, 2004
MEMORANDUM
In its opinion remanding this case to the District Court for consideration of the Chmakov's constitutional claim, the Court of Appeals opinion states:
The Chmakovs contend that there was a denial of due process because predecessor counsel did not file a brief with the BIA and did not file an appeal with this court, thus rendering the proceedings so fundamentally unfair that they were prevented from reasonably presenting their case. See Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988). It will be for the District Court to determine whether they are right, or whether they are wrong. Chmakov v. Blackman, 266 F.3d 210, 216 (3rd Cir. 2001).
In Xu Yong Lu v. Ashcroft, 259 F.3d 127 (3rd Cir. 2001), the court concluded that "the Lozada requirements are a reasonable exercise of the Board's discretion. . . . " Xu Yong Lu at p. 129. Those requirements (sometimes referred to as the three-prong test) are:
1. A motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts including a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the respondent in this regard.
2. Before the allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond. Any such response or report of counsel's refusal to respond should be submitted with the motion.
3. If it is asserted that prior counsel's handling of the case involved a violation of ethical or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not.
While petitioners clearly understand the Lozada requirements ( see page 12 of their brief), they make no effort to address them other than to make reference to the Xu Yong Lu court's concern about a too strict application of the third prong.
The rationale behind the Lozada test was to enable the Board "to assess the `substantial number' of ineffective assistance claims that it receives." These "high standards" as the Board referred to them, were approved, as stated, in Xu Yong Lu.
It is not unusual in opinions dealing with immigration issues to read of the difficulties encountered by immigrants, not the least of which can be a language barrier, a lack of formal education and ignorance of the American justice system. These difficulties in actuality must be beyond the comprehension of most courts. But Xu Yong Lu is cautious in this regard stating:
We sympathize with Lu's position, but these obstacles are not unique. Quite the contrary — they are common attributes shared by many individuals engaged in immigration proceedings. If we were to accept Lu's arguments, we would seriously undermine the BIA's ability to assess the "substantial number" of claims it receives, and thus frustrate the stated goal of Lozada.
The Lozada requirements have not been met in this case. An appropriate order follows.
ORDER
AND NOW, this 9th day of February, 2004, in consideration of the Petition for Writ of Habeas Corpus and the briefs of the parties, it is hereby ORDERED that the Petition is DENIED.
This case is CLOSED.