Bajraktari (not precedential): Lozada Due Diligence Not Defeated By New Lawyer's Bad Performance

In Bajraktari v. Mukasey, No. 06-4202 (3d Cir. Mar. 19, 2008) (not precedential), the Third Circuit criticized the BIA for failing to reopen a case for an immigrant whose due process rights were violated because she received ineffective assistance of counsel (a Lozada-type claim).

According to the immigrant, the saga started when her first lawyer Martin Vulaj improperly failed to tell her of her new court date so she was ordered deported in absentia. Mr. Vulaj then allegedly failed to file a timely motion to reopen. She then hired Kieran Both but Mr. Both failed to raise the first lawyer's improper conduct in his motion to reopen. She then hired her third attorney Michael DiRaimondo who filed a motion to reopen for ineffective assistance of counsel and the IJ and BIA denied it because it was too late and supposedly the immigrant did not exercise due diligence. (We'll put aside the fourth months of delay caused by EOIR mistakes.)

The saga was not over. The Third Circuit remanded to the BIA on the issue of whether she exercised due diligence in pursuing her claim. The BIA concluded she had not exercised due diligence but the BIA's reasoning was faulty.

• The BIA said the immigrant never told her second lawyer of all the first lawyer's mistake but the Third Circuit points out the record shows the second lawyer wrote up items referring to the original in absentia order.
• The BIA said the immigrant took too long for the second lawyer to file a motion to reopen, but the Third Circuit points out the delay was the fault of the second lawyer, not the immigrant who diligently tried to get something filed.
• The BIA said the second lawyer's failure to complain about the first lawyer by definition means the immigrant did not use due diligence, but the Third Circuit points out that if the second lawyer acted improperly, the failure to include items was the second lawyer's fault, not the immigrant's. So you can't say the immigrant failed to act diligently.
• The BIA said the third lawyer's filing was extremely late, but the Third Circuit points out the BIA ignored how the third lawyer filed it with the IJ and only due to a mistake by EOIR was there an additional four months of delay.

Hard to tell, but it seems that the four months of delay was for EOIR to recognize that when a motion to reopen is denied as untimely and an appeal of it is denied by the BIA, a motion to reopen for ineffective assistance of counsel can be filed with the immigration court. The Third Circuit does not explain the basis for this.

Bottom line: due diligence can be shown if the immigrant makes continuous efforts to get things filed, even if the immigrant is the victim of repeated mistakes by new lawyers. Another lesson: the BIA often throws out valid claims of ineffective assistance of counsel. If you know you have a good claim, warn your client that the BIA might make a bad ruling and force you to file a time-consuming and expensive appeal to the Third Circuit to get the correct ruling you deserve.