Monday, September 03, 2007

Rukiqi (not precedential): Lozada Everyone, Even Every Law Partner

In Rukiqi v. Gonzales, No. 05-3979 (3d Cir. Aug. 31, 2007) (not precedential), a divided Third Circuit panel ruled 2-1 that if you are complaining about the ineffective assistance of prior counsel, you should file bar complaints against everyone who ever worked on your case, even if some of them were law partners with others.

To try to reopen a case because your first lawyer provided ineffective assistance of counsel is to argue that you did not receive due process and never had an opportunity to be heard because the first lawyer prevented the court from hearing the details of your case. The BIA has set out three requirements in Matter of Lozada -- it requires filing a bar complaint against the lawyer or explaining why you haven't. (The Third Circuit hasn't yet tackled a bigger question of whether the requirements in Lozada should be followed today, because the BIA's roughly 20-year old decision in Lozada does not accommodate developments in the past few decades on expanded rights of people in civil proceedings.)

Assuming that you have to meet the Lozada requirements, would you have to file complaints against not only the first lawyer who failed to mail in your asylum application on time, but also his two law partners who helped you with your case afterwards? The Third Circuit says yes, you must file complaints against each of them and anyone who worked on your case but failed to complain about the first lawyer. The dissent believes the complaint against the first lawyer is sufficient to cover the mistakes by all the lawyers at that firm. (The first lawyer was Martin Vulaj and the later ones were Timothy Garille and Linda Flanagan.) By imposing a strict requirement of filing bar complaints against every lawyer who worked on the case, the Third Circuit is imposing a very harsh rule against those wronged in their immigration court cases. It seems filing bar complaints against anyone who ever touched your case might be the cautious way to approach the case -- a harsh requirement that Judge Jordan in dissent called a "Procrustean bed" far from how courts should be interpreting Lozada.

A strange side-issue in the case is that the majority refused to give any weight to how some of Linda Flanagan's letters were on letterhead indicating she was a law partner of the first lawyer. I suppose this means even when something is pretty obvious, flood the courts with affidavits that make clear what is already fairly evident from the documents themselves.

We'll see how the Third Circuit rules on the much bigger issue hiding in the background -- whether it should still be following the BIA's 20-year old decision of Matter of Lozada.


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