ASSAAD

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 (BIA 2003)                                   Interim Decision #3487




                 In re Bassel Nabih ASSAAD, Respondent
                             File A72 824 993 - Houston
                             Decided February 12, 2003
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) Case law of the United States Supreme Court holding, in the context of criminal
   proceedings, that there can be no deprivation of effective assistance of counsel where there
   is no constitutional right to counsel does not require withdrawal from Matter of Lozada,
   

 (BIA 1988), aff’d, 

 (1st Cir. 1988), finding a right to assert
   a claim of ineffective assistance of counsel in immigration proceedings, where the United
   States Courts of Appeals have recognized that a respondent has a Fifth Amendment due
   process right to a fair immigration hearing, which may be denied if counsel prevents the
   respondent from meaningfully presenting his or her case.

(2) The respondent did not establish that his former counsel’s failure to file a timely
   appeal constituted sufficient prejudice to warrant consideration of his late appeal on the
   basis of ineffective assistance of counsel.

FOR RESPONDENT: Edward D. Gillett, Esquire, Houston, Texas

AMICI CURIAE:1 Beth Werlin, Esquire; Nadine Wettstein, Esquire; and Mary Kenney,
Esquire, Washington, DC
AMICUS CURIAE:1 Iris Gomez, Esquire, Boston, Massachusetts

FOR THE IMMIGRATION AND NATURALIZATION SERVICE:1 George R. Martin,
Appellate Counsel
BEFORE: Board En Banc: SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, COLE,
        GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN,
        ESPENOZA, OSUNA, and HESS, Board Members. Concurring Opinions:
        FILPPU, Board Member, joined by SCIALABBA, Chairman; PAULEY, Board
        Member.




1
  We acknowledge the thoughtful arguments raised in the supplemental briefs submitted by
amici curiae and the Immigration and Naturalization Service in response to our request for
additional briefing. We have considered both of the amici briefs dated April 23, 2001, and
February 26, 2002, even though the former brief was not submitted directly in relation to the
case now before us.

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OSUNA, Board Member:

   In a decision dated February 22, 2001, an Immigration Judge denied the
respondent’s motion to reopen, in which he alleged ineffective assistance of
prior counsel and sought to pursue an appeal of a previous denial of relief.
The respondent has appealed from that decision. The appeal will be
dismissed.
                                     I. ISSUE
   The issue before us is whether an exception to the 30-day time limit for
filing an appeal from a decision of an Immigration Judge can ever be made
based on a claim of ineffective assistance of counsel. In regard to this
question, the Immigration and Naturalization Service seeks to have us
reexamine and overturn our decision in Matter of Lozada, 

(BIA 1988).
   The Service notes that the United States Supreme Court has held, in the
context of criminal proceedings, that where there is no constitutional right to
the appointment of counsel at government expense, there is no constitutional
basis for a claim of ineffective assistance of counsel. Coleman v. Thompson,

 (1991); Wainwright v. Torna, 

(1982). According to the Service, we have not addressed this Supreme Court
authority, with which Matter of Lozada and its progeny are in conflict. Thus,
the Service contends that we should reconsider Lozada in light of Coleman
and Wainwright.
   We acknowledge the arguments made by the Service but are not persuaded
that we should withdraw from our decision in Matter of Lozada. Although
the Supreme Court’s decision in Coleman was rendered more than 10 years
ago, the Service has never raised it to challenge Lozada in subsequent cases
before the Board. See, e.g., Matter of A-A-, 

 (BIA 1998);
Matter of N-K- & V-S-, 

 (BIA 1997); Matter of Rivera,

 (BIA 1996), aff’d, 

 (4th Cir. 1997)
(unpublished table decision). Furthermore, for more than a decade the circuit
courts have recognized Lozada as valid precedent setting forth procedures by
which respondents may present claims of ineffective assistance of counsel.
             II. FACTUAL AND PROCEDURAL HISTORY
  The respondent is a native and citizen of Syria who entered the United
States in 1993 as a nonimmigrant visitor. The record reflects that he was
subsequently granted conditional permanent resident status on the basis of his
marriage to a United States citizen. Removal proceedings were instituted in
1997 after the termination of his status.


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   In proceedings before the Immigration Judge, the respondent sought a
waiver under section 216(c)(4)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(c)(4)(B) (1994 & Supp. IV 1998), to remove the
conditional basis of his permanent resident status. The Immigration Judge
denied the waiver, finding that limited evidence was submitted to assess the
qualifying marriage and that the respondent knew little about his wife. The
Immigration Judge ordered the respondent removed from the United States in
a decision dated April 2, 1998. The respondent reserved appeal but his
attorney submitted the appeal a week late.2 We dismissed the appeal as
untimely on September 19, 2000.3
   On February 12, 2001, nearly 3 years after the Immigration Judge’s
decision, the respondent, represented by new counsel, sought reopening,
presumably so the Immigration Judge would reissue his decision in order for
a timely appeal to be filed.4 With his motion, the respondent submitted
evidence in compliance with the procedural requirements of Matter of Lozada
for making a claim of ineffective assistance of counsel, including a grievance
filed with the State Bar of Texas. The Immigration Judge denied the motion
on February 22, 2001, and the respondent has appealed from that decision.
   On appeal, the respondent has admitted that the motion filed with the
Immigration Judge was untimely, but he argues that former counsel did not
inform him of our decision dismissing his original appeal as untimely. He
asserts that he did not learn of our order until a Service officer sought to
arrest him. The respondent therefore contends that his motion asserting a
claim of ineffective assistance of counsel should have been considered. In

2
    The respondent was competently represented by counsel at the hearing before the
Immigration Judge. After the conclusion of those proceedings, however, the respondent
apparently dismissed that attorney and retained new counsel. It was the second attorney who
filed the appeal late and who is the subject of the present ineffective assistance claim filed by
the respondent’s current counsel.
3
   The Immigration Judge’s order became final when the respondent’s appeal was not timely
filed. See section 101(a)(47)(B)(ii) of the Act, 

(a)(47)(B)(ii) (2000) (providing
that a deportation order becomes final upon the expiration of the period in which the alien is
permitted to seek review by the Board); 

(b) (2002) (specifying that an appeal
must be filed within 30 days); 

(a)(1) (2002) (describing how an appeal may be
taken to the Board); see also Matter of Jean, 

 (A.G. 2002).
4
   The Service asserts that the respondent should have filed his motion to reopen with the
Board, rather than with the Immigration Judge. We need not address the Service’s procedural
objections, because we view the issues posed by this case to be sufficiently important for us
to review pursuant to our independent authority to certify, reopen, or reconsider a case.

(c), 3.2(a) (2002); see also Matter of G-D-, 

 (BIA
1999) (stating that the Board uses its authority to reopen or reconsider cases sparingly, in
“truly exceptional” situations). Our invocation of these powers extinguishes any procedural
questions pertaining to the timeliness of the respondent’s Lozada motion or to the forum in
which it is filed.

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support of his appeal, he has submitted a letter from the State Bar of Texas
to his current counsel, stating that the Investigatory Panel of the District
Grievance Committee determined, based on the respondent’s complaint, that
there was just cause to believe that former counsel committed professional
misconduct.
                                III. ANALYSIS
                             A. Matter of Lozada
   In Matter of 

, we set forth the procedural
requirements for a claim of ineffective assistance of counsel, noting that they
were necessary to provide a basis for evaluating the many claims presented,
to deter baseless allegations, and to notify attorneys of the standards for
representing aliens in immigration proceedings. First, we held that the alien
must submit an affidavit detailing the agreement that was entered into with
counsel with respect to the actions to be taken and the representations counsel
made or did not make in this regard. We also stated that the alien must
inform counsel of the allegations of ineffective assistance and give him or her
the opportunity to respond. Finally, we concluded that the alien must file a
complaint with the appropriate disciplinary authorities, such as a state bar,
with respect to any violation of counsel’s ethical or legal responsibilities, or
adequately explain why no filing was made. In addition to these
requirements, an alien alleging ineffective assistance of counsel must also
show that he or she was prejudiced by the actions or inactions of counsel. Id.
at 640.
   We revisited these procedures in Matter of Rivera, supra, at 603-05, where
we set forth further policy reasons for the “complaint” requirement of Matter
of Lozada. We noted that such a filing increases our confidence in the
validity of the particular claim, reduces the likelihood that an evidentiary
hearing will be needed, and serves our long-term interests in monitoring the
representation of aliens by the immigration bar. Matter of Rivera, supra, at
605. We further determined that the bar complaint requirement acts as a
protection against collusion between counsel and client to achieve delay in
proceedings.
   It is clear that Matter of Lozada provides a measure of protection for
aliens who are prejudiced by incompetent counsel. As a removal proceeding
has the potential to deprive a respondent of the right to stay in the United
States, which can include separation from family and return to possible
persecution, the procedures in that proceeding must be fundamentally fair.
Moreover, as discussed below, the courts have consistently recognized that
ineffective counsel may deprive an alien of a fair hearing. See, e.g., Saakian
v. INS, 

 (1st Cir. 2001). The Lozada approach has

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provided an appropriate framework for analyzing ineffective assistance
claims, balancing the need for finality in immigration proceedings with some
protection for aliens prejudiced by ineffective assistance of counsel.
                B. Supreme Court and Circuit Court Decisions
   The Service argues that Matter of Lozada conflicts with the Supreme Court
decisions in Coleman v. 

 and Wainwright v. 

In Wainwright, the Supreme Court found that since a convicted felon had no
constitutional right to counsel to pursue a discretionary state appeal, he could
not be deprived of the effective assistance of counsel by his attorney’s failure
to timely file the discretionary appeal. Wainwright v. 

 at 587­
88.
   Citing that decision, the Supreme Court reiterated in Coleman that where
there is no constitutional right to counsel, there can be no deprivation of
effective assistance of counsel. In that case, the prisoner’s attorney had
sought state habeas review of various claims, but had filed his state appeal
late, resulting in a procedural default. The prisoner claimed that his
attorney’s error should excuse the procedural default and allow federal
habeas review of the merits of his claim. The Court rejected this argument,
holding that because there is no constitutional right to an attorney in state
post-conviction proceedings, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings. Coleman v.

.
   In light of Coleman and Wainwright, the Service argues that we should
reconsider and overturn Matter of Lozada and hold that a claim of ineffective
assistance of counsel cannot amount to a constitutional violation in
immigration proceedings, where there is no constitutional right to appointed
counsel. Amici disagree, arguing that respondents in immigration proceedings
have both a constitutional and statutory right to competent counsel. 5
According to amici, the Supreme Court’s decisions in Coleman and
Wainwright are limited in their application to the specific criminal contexts
in which they arose and are not relevant to whether respondents in
immigration proceedings may assert a constitutional claim of ineffective
assistance based on the Due Process Clause of the Fifth Amendment.
5
   In light of our disposition of this case, we find it unnecessary to address whether there is a
statutory basis in the Immigration and Nationality Act for raising a claim of ineffective
assistance of counsel. See sections 240(b)(4)(A), 292 of the Act, 8 U.S.C. §§ 1229a(b)(4)(A),
1362 (2000) (stating that a respondent has the “privilege” of being represented, “at no expense
to the Government”). We also do not reach the argument advanced by amici that claims of
ineffective assistance derive from regulations of the Executive Office for Immigration Review
that enforce standards of conduct for those appearing before Immigration Judges and the
Board. See Professional Conduct for Practitioners – Rules and Procedures, 

 (2000).

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   We are not persuaded by the arguments advanced by the Service and
decline to overrule our decision in Matter of 

 We first
acknowledge some ambiguity in the basis set forth in that decision for
respondents to assert ineffective assistance claims. Relying on governing
circuit court law at the time, we stated that any right to counsel a respondent
may have in immigration proceedings is grounded in the Fifth Amendment
guarantee of due process, and that ineffective assistance of counsel is a
denial of due process only if the proceedings were so fundamentally unfair
that the alien was prevented from reasonably presenting his or her case. 

at 638 (citing Magallanes-Damian v. INS, 

 (9th Cir. 1986); Paul
v. United States INS, 

 (5th Cir. 1975)). Our decision can also
be seen as setting forth a “high standard” by which we will consider
exercising our limited certification authority in a case where attorney
malfeasance has occurred. Matter of 

; see also Matter
of Jean, 

, 380 n.9 (A.G. 2002) (noting that the Board’s
authority to certify cases to itself in its discretion is limited to exceptional
circumstances and is not meant to be used as a general cure for filing defects
or to otherwise circumvent the regulations, where enforcing them might result
in hardship). The Service appears to acknowledge that we may consider
claims of ineffective assistance of counsel under such authority.
   In any event, since Matter of Lozada was decided 15 years ago, the circuit
courts have consistently continued to recognize that despite having no right
to appointed counsel in an immigration hearing, a respondent has a Fifth
Amendment due process right to a fair immigration hearing and may be
denied that right if counsel prevents the respondent from meaningfully
presenting his or her case. See, e.g., Osei v. INS, 

 (10th
Cir. 2002); Xu Yong Lu v. Ashcroft, 

 (3d Cir. 2001); Jobe v.
INS, 

 (1st Cir. 2001); Hernandez v. Reno, 

 (1st Cir.
2001); Huicochea-Gomez v. INS, 

 (6th Cir. 2001); Iavorski v.
United States INS, 

 (2d Cir. 2000); Lata v. INS, 

(9th Cir. 2000); Akinwunmi v. INS, 

 (10th Cir. 1999); Mejia
Rodriguez v. Reno, 

 (11th Cir. 1999); Rabiu v. INS, 

 (2d Cir. 1994); Figeroa v. United States INS, 

 (4th Cir.
1989).
   The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, has joined the other circuits that have found a
basis in the Fifth Amendment for ineffective assistance of counsel claims. In
Goonsuwan v. Ashcroft, 

, 385 n.2 (5th Cir. 2001), the court
noted that while there is no Sixth Amendment right to counsel in deportation
proceedings, because such proceedings are civil in nature, aliens do have a
constitutionally protected right to procedural due process in deportation
proceedings. This due process right is violated when the representation
afforded to an alien is so deficient as to impinge on the fundamental fairness

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of the proceedings. Id.; see also Lara v. Trominski, 

 (5th Cir.
2000) (upholding the requirements set forth in Matter of Lozada);
Miranda-Lores v. INS, 

 (5th Cir. 1994). We are required to follow
this Fifth Circuit law in cases arising within that circuit. Matter of Yanez,

 (BIA 2002); Matter of K-S-, 

 (BIA 1993).
   Numerous circuit court decisions have also generally endorsed the
procedural requirements we set forth in Matter of Lozada for making a claim
of ineffective assistance of counsel. See, e.g., Xu Yong Lu v. Ashcroft,
supra, at 132 (concluding that the three-prong Lozada test is a “reasonable
exercise of the Board’s discretion”); Lara v. 

 (finding
that the general application of the Lozada rules is not an abuse of discretion);
Lata v. INS, supra, at 1246 (noting that the Board has laid out a
“comprehensive procedure” that petitioners should follow, and that this
procedure has been adopted by other circuits). See generally Fajardo v. INS,

 (9th Cir. 2002). 6
   Significantly, most of the decisions cited above were rendered in the
decade after the Supreme Court decided Coleman v. 

 This
strongly suggests that the courts of appeals have not viewed the Supreme
Court’s pronouncements in the criminal context as requiring a reexamination
of the due process underpinnings of ineffective assistance of counsel claims
in the immigration context. The sole circuit court decision that has
questioned the basis for Matter of Lozada and that has suggested that aliens
in immigration proceedings may not have a constitutional due process basis
for raising ineffective assistance claims did so in dicta and in a divided
opinion. Stroe v. INS, 

 (7th Cir. 2001);7 see also Pop v.
INS, 

 (7th Cir. 2002). Moreover, the court in Stroe v. INS,
supra, specifically stated that the Lozada requirements are within the Board’s
discretionary authority. In any event, the Seventh Circuit had previously held
that ineffective assistance of counsel in an immigration proceeding may result

6
  We acknowledge that some courts have taken a “broad” view of the Lozada requirements,
holding that we should apply a flexible approach by not mandating strict adherence to all of the
Lozada steps in every case. See Xu Yong Lu v. Ashcroft, supra, at 134 (noting that while in
many, if not most, cases, persons alleging ineffective assistance should file disciplinary
complaints, this is not an “absolute” requirement); Saakian v. INS, supra (endorsing a flexible
approach to Matter of Lozada); Castillo-Perez v. INS, 

 (9th Cir. 2000)
(holding that the Lozada requirements are generally reasonable, but that full compliance is not
required if the record independently shows that the “ineffective assistance” claim is legitimate
and substantial). We will apply such circuit law as is appropriate in each circuit. However,
because the respondent in the present case fully complied with the Lozada steps, we find it
unnecessary to consider whether to apply this “flexible” approach generally to all cases.
7
   According to Judge Wood’s concurring opinion in Stroe v. INS, supra, at 505, “[A]s the
Supreme Court constantly reminds us, due process is a flexible concept, and I see no reason
to make a categorical assumption that it will never be implicated in a counsel-related problem
in an immigration case.”

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in a denial of due process. Mojsilovic v. INS, 

 (7th Cir. 1998);
Henry v. INS, 

 (7th Cir. 1993). The court in Stroe did not
explicitly overrule this prior precedent.
   As a result of this extensive body of law, the principle that aliens may have
a valid claim of ineffective assistance of counsel if an attorney’s actions were
so deficient as to foreclose the fundamental fairness of the proceedings is
settled law in most circuits. We are therefore bound by this precedent.
Matter of Anselmo, 

 (BIA 1989). These circuit court
cases, including those in the Fifth Circuit, specifically considered the issue
of ineffective assistance of counsel in the immigration context and concluded
that it may amount to a constitutional due process violation.
   The Supreme Court cases cited as controlling by the Service were decided
years ago and arose in the context of criminal, rather than immigration,
proceedings. Coleman v. 

; Wainwright v. 

. We acknowledge, of course, that Supreme Court law is
paramount and must be respected. However, accepting the Service’s
interpretation of Supreme Court law in this case would amount to a decree by
the Board that the circuit courts that have analyzed the issue in the
immigration context, and who are clearly able to consider the Supreme
Court’s authority, have reached an incorrect result. We are unwilling to so
hold, as it is beyond our limited authority as an administrative
decision-making body. Matter of Martin, 

 (BIA 2002)
(deeming circuit court decisions to be “authoritative” precedent). 8
   We therefore decline to accept the Service’s argument that Matter of
Lozada should be overruled as a result of the Supreme Court’s decisions in
Coleman v. Thompson and Wainwright v. Torna. We see no reason, based
on Supreme Court law that has never been directly applied to immigration
proceedings, to disavow a decision that has garnered general approval in the
circuit courts for more than 15 years.9

8
   We also note that the current regulations governing asylum claims specifically include
ineffective assistance of counsel as a potential exception to the 1-year deadline for filing
asylum applications. See 

(a)(5)(iii) (2002) (providing that ineffective
assistance of counsel may constitute “extraordinary circumstances” excusing a failure to file
an asylum application within the 1-year deadline). These regulations mandate that an alien
claiming such circumstances must comply with the procedural steps of Matter of Lozada. The
supplementary information to the latest revision of the asylum regulations took note of the
Service’s arguments before the Board advocating a reexamination of Matter of Lozada as part
of a broader assessment of the role that counsel error may play in requests for relief in
immigration proceedings. Asylum Procedures, 

, 76,124 (2000).
However, the language of 

(a)(5)(iii) has remained unchanged since it was
added to the asylum regulations in 1997.
9
  In their respective concurring opinions, Board Members Filppu and Pauley, while reaching
different conclusions about the effect of Coleman v. Thompson and Wainwright v. Torna
                                                                              (continued...)

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                       C. Application of Matter of Lozada
   In the present appeal, the respondent has complied with the three-step
procedural requirements of Matter of Lozada. He has provided the required
affidavit, informed former counsel of the allegations against him, and notified
the appropriate disciplinary authorities in the State of Texas. However, we
must dismiss the respondent’s appeal because he has not shown the required
prejudice stemming from prior counsel’s actions. The respondent asserts that
former counsel’s failure to file the appeal in a timely manner is per se
prejudicial. We disagree. Although, in some instances, counsel’s failure to
file a timely appeal may constitute per se prejudice in removal proceedings,
that is not the case here.
   The exact parameters of due process protections in cases involving
ineffective assistance of counsel are unclear. See Chowdhury v. Ashcroft,

, 854 (7th Cir. 2001) (holding that while there is case law
providing that aliens have protection against ineffective counsel based on the
Fifth Amendment, the extent of that protection is unclear, and probably fewer
protections are guaranteed than if immigration proceedings were governed by
the Sixth Amendment); Mejia Rodriguez v. Reno, supra, at 1146 (holding that
an alien asserting an ineffective assistance of counsel claim must make a
showing that he or she was eligible for the relief requested). The Fifth Circuit
has held that an alien seeking to prevail on a claim of ineffective assistance
of counsel must show not only that counsel was ineffective, but also that the
alien suffered “substantial prejudice” as a result of counsel’s errors.
Miranda-Lores v. INS, supra, at 85; Ogbemudia v. INS, 

(5th Cir. 1993); see also United States v. Lopez-Ortiz, 

(5th Cir. 2002) (stating that procedural protections accorded an alien in a
removal proceeding are less stringent than those available to a criminal

9
    (...continued)
make the point that the Board should follow Supreme Court authority in instances where that
authority conflicts with precedents of the circuit courts. We agree. As noted above, Supreme
Court law is paramount and the Board, along with every other judicial or quasi-judicial tribunal
in this country, is mandated to follow it. Were we convinced of a conflict between the
Supreme Court’s pronouncements and circuit court precedents, we would follow Supreme
Court law without question. In this case, however, for the reasons explained in this decision,
we find that the Court’s decisions in Coleman and Wainwright do not govern the question
whether there is a Fifth Amendment basis for raising ineffective assistance of counsel claims
in immigration proceedings, where virtually every circuit that has looked at this issue over the
years has not identified such a conflict with applicable circuit law. Matter of Mangabat,

 (BIA 1972), aff’d sub nom. Cabuco-Flores v. INS, 

 (9th Cir.
1973), cited by Board Member Pauley, is not applicable to this case, as it involved a unique
situation where the Solicitor General was affirmatively challenging circuit court precedent
before the Supreme Court. That is not the situation here.

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defendant because removal hearings are civil, rather than criminal,
proceedings).
   We note that in Roe v. Flores-Ortega, 

 (2000), the
Supreme Court held that “counsel’s constitutionally deficient performance
depriv[ing] a defendant of an appeal that he otherwise would have taken,”
establishes a “successful ineffective assistance of counsel claim entitling him
to an appeal” without any additional showing of prejudice. However, for the
same reasons that we do not find the Supreme Court’s decisions in the
criminal context in Coleman v. Thompson and Wainwright v. Torna
controlling in the immigration context, we do not find that the Court’s
pronouncement in Roe v. Flores-Ortega requires us to find per se prejudice
from counsel’s failure to file an appeal in immigration proceedings. See
Hernandez v. Reno, supra, at 55-57 (1st Cir. 2001) (holding that while, in the
criminal context, counsel’s failure to comply with a defendant’s request to
appeal is treated as prejudice per se, citing Roe v. Flores-Ortega, the court
was unwilling to “incorporate into civil deportation proceedings the whole
apparatus of Sixth Amendment precedent”). But see Dearinger ex rel.
Volkova v. Reno, 

 (9th Cir. 2000) (adopting the reasoning of
Roe v. Flores-Ortega where an appeal of a denial of asylum was filed late).
   Our review of the record indicates that the respondent received a fair and
complete hearing before the Immigration Judge. He was well represented by
counsel throughout the hearing before the Immigration Judge and was
provided every opportunity to present his case for a waiver under section
216(c)(4)(B) of the Act. 10 In a careful decision, the Immigration Judge
determined that the respondent had failed to meet his burden of showing that
he had contracted a valid marriage, which is necessary for a waiver under
section 216(c)(4)(B). Matter of Stowers, 

 (BIA 1999);
Matter of Gawaran, 

 (BIA 1995). In addition, the
respondent has made no showing in his motion alleging ineffective assistance
of counsel that he is eligible for any relief from removal, or that there was
error in the Immigration Judge’s decision. Accordingly, we find that the
respondent has not shown that he was prejudiced from prior counsel’s
conduct, and we will dismiss the appeal.
                                 IV. CONCLUSION
   Matter of 

 has given the Board a useful framework for
evaluating claims of ineffective assistance of counsel and is in accord with
controlling precedent in most circuits. We therefore decline to withdraw from
its reasoning based on Supreme Court law that has never been directly

10
   As noted earlier, the respondent was represented by one attorney before the Immigration
Judge, but he hired a different attorney to file his appeal with the Board. See supra note 2.

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applied to immigration proceedings. Furthermore, applying the Lozada
standards to this case, we find that the respondent has failed to show the
requisite prejudice to warrant consideration of his late appeal. Accordingly,
the appeal will be dismissed.
   ORDER: The respondent’s appeal is dismissed.
CONCURRING OPINION: Lauri Steven Filppu, Board Member, in
which Lori L. Scialabba, Chairman, joined
   I respectfully concur. I agree that the respondent has not shown that we
should entertain his original untimely appeal from the order of removal.
Unlike the majority, however, I find no basis for distinguishing United States
Supreme Court authority on the circumstances in which a party may claim
ineffective assistance of counsel.
   In Coleman v. Thompson, 

 (1991), and Wainwright v. Torna,

 (1982), the Supreme Court ruled that the constitutional right to
the effective assistance of counsel applies only to proceedings in which the
government is obligated by the Constitution to provide counsel at government
expense to the person subject to those proceedings. The rationale for that
ruling is very simple. When the government is constitutionally required to
supply counsel, it cannot effectively escape that obligation by supplying an
incompetent lawyer. Since the government must provide the attorney,
mistakes made by that attorney will be attributed to the government, which
must bear the cost resulting from those mistakes. Coleman v. 

; Murray v. Carrier, 

 (1986).
   On the other hand, when the government is not constitutionally required to
provide counsel, a claim of ineffective assistance of counsel will not lie and
any mistakes made by counsel are imputed to the client. Coleman v.

. Absent a governmental obligation to supply
counsel, a client is simply bound by the actions of his or her attorney, even
when, as here, that attorney misses a deadline through no fault of the client.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 

 (1993) (rejecting a lower court’s attempt to separate the conduct of
an attorney from the consequences to the client and stating that clients must
“be held accountable for the acts and omissions of their chosen counsel”);
United States v. Boyle, 

 (1985) (holding that a taxpayer
was not excused from filing late by reasonable reliance on the attorney
handling the tax matter); Link v. Wabash R.R. Co., 

 (1962)
(finding “no merit to the contention that dismissal of petitioner’s claim
because of his counsel’s unexcused conduct imposes an unjust penalty on the
client”); see also United States v. Locke, 

 (1985) (stating
that a “filing deadline cannot be complied with, substantially or otherwise, by
filing late–even by one day”).

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   The reasoning behind these Supreme Court decisions does not square with
the large body of lower court cases, identified by the majority, finding a Fifth
Amendment right to the effective assistance of counsel in immigration
proceedings, even though the government has no constitutional obligation to
provide counsel to aliens in such proceedings. Adding to the dilemma is our
own case law holding that we follow circuit precedent, absent very rare
circumstances. E.g., Matter of Anselmo, 

 (BIA 1989). I
agree with the majority that we should not lightly decline to follow circuit
precedent. But neither should we decline to follow Supreme Court precedent.
When the two seem to conflict, the only answer is to follow the Supreme
Court, unless a valid ground for distinction emerges such that the conflict
disappears.
   Favoring lower court precedent over the Supreme Court is particularly
problematic in a situation such as we have here, where only one court of
appeals has ever confronted Coleman v. 

 or Wainwright v.

 in the civil immigration context. In that case, the United States
Court of Appeals for the Seventh Circuit expressed concern that “the Board
may not be cognizant of the relevant precedents governing the right to
counsel” and strongly suggested that Supreme Court law, including Coleman,
was controlling. Stroe v. INS, 

 (7th Cir. 2001). 1
   Despite its heavy emphasis on simple adherence to long-standing circuit
law, the majority does hint at several possible grounds for distinguishing the
Supreme Court’s rulings, but none of them is convincing. The majority
explains that the Supreme Court cases were decided years ago and arose in
the criminal context, and it suggests that there is a difference between the right
to the effective assistance of counsel arising under the Sixth Amendment and
one arising under the Fifth Amendment.
   I do not understand the majority to say that Coleman v. 

a 1991 ruling, was decided so long ago that its validity today is in doubt.
Instead, the majority is justifiably concerned with the number of subsequent
court of appeals rulings in the immigration context that have not addressed it.
But, ultimately, this concern must give way if there is not a solid analytical
ground for distinction. The lower courts do not have the authority to overrule
the Supreme Court. If Coleman and Wainwright are not distinguishable, it
does not matter how many lower court cases, oblivious to Supreme Court
law, exist. Once recognized, the Supreme Court’s rule still prevails.

1
  The court in Stroe described its own older case law, as well as that from most other circuits,
as having “assumed” the existence in immigration cases of a right to the effective assistance
of counsel. Stroe v. INS, supra, at 499-500; see also Pop v. INS, 

 (7th Cir.
2002) (citing Stroe and stating that “[in] this circuit, . . . whether there exists a constitutional
right to effective assistance of counsel in immigration cases is virtually foreclosed”). Stroe
should give the majority great pause before giving precedence to older circuit law in Seventh
Circuit cases.

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   The “criminal law” distinction is also groundless. If there were an absolute
dichotomy between civil and criminal cases, we should then be following the
Supreme Court’s rulings in civil cases such as United States v. 

and Link v. Wabash R.R. Co., supra, where parties are charged with the
mistakes of their lawyers. Yet the majority’s reference to a criminal law
distinction may be intended to invoke a presumed contrast between the Fifth
and Sixth Amendments. Indeed, such a contrast would naturally suggest
itself. It does not, however, actually exist in relation to the issue now before
us.
   As the Supreme Court has explained, the Sixth Amendment applies only
to criminal trial proceedings. It does not apply to criminal appeals. E.g.,
Martinez v. Court of Appeal of California, Fourth Appellate Dist., 

 (2000) (stating that in “light of our conclusion that the Sixth
Amendment does not apply to appellate proceedings, any individual right to
self-representation on appeal . . . must be grounded in the Due Process
Clause”); Evitts v. Lucey, 

 (1985) (explaining that the
constitutional right to counsel during the first appeal as of right in the criminal
context derives in significant part from the Due Process Clause and declaring
that a “first appeal as of right therefore is not adjudicated in accord with due
process of law if the appellant does not have the effective assistance of an
attorney”).
   The Sixth Amendment, consequently, is not the source of the government’s
constitutional obligation to furnish counsel during a criminal defendant’s first
appeal as of right. See Ross v. Moffitt, 

 (1974) (holding that the
combination of the Due Process and Equal Protection Clauses does not
require appointment of counsel for discretionary criminal appeals or
discretionary review in the Supreme Court itself); Evitts v. 

Douglas v. California, 

 (1963). Thus, the Supreme Court’s
case law indicates that the differences between the Fifth and Sixth
Amendments have no bearing on the fundamental question whether an
individual can claim the right to the effective assistance of counsel in a given
context. Instead, what matters is whether the government has a constitutional
obligation to furnish counsel, regardless of the specific source of that right,
whether it be the Sixth Amendment at the trial stage or a combination of due
process and equal protection during the first appeal as of right in the criminal
context.
   The amici advance claims not endorsed by the majority. But the amici also
fail in their further attempts to distinguish Coleman and Wainwright or to
identify sources outside the Constitution for a right to the effective assistance
of counsel in civil immigration proceedings. Amici seek to distinguish
Coleman because of its concerns over federalism; because it involved a
discretionary state appeal, as opposed to a first appeal as of right such as the
regulations give to aliens in removal cases; and because the Attorney General

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has sought to promote the competency of the immigration bar through the
regulations pertaining to attorney discipline. See 

-.109,
292.3 (2002).
   Certain aspects of Coleman were influenced by federalism concerns. But,
contrary to amici’s contentions, there is no indication in Coleman’s
discussion of the right to “effective assistance” suggesting that the outcome
depends on whether the prosecuting authority is the Federal Government or
a state government. Amici are correct in noting that the death-row inmate in
Coleman was attacking a procedural default, the late filing of a state appeal
by his lawyer, occurring after the functional equivalent of his first appeal as
of right. The controlling factor, however, was the absence of a constitutional
obligation on the state to provide counsel at the stage where the procedural
default occurred. In this respect, Coleman is not distinguishable from the
respondent’s case, but rather is similar, because the collateral nature of
Coleman’s proceedings meant that the state government was not
constitutionally required to provide counsel to Coleman, just as the
Government is not constitutionally required to provide counsel to the
respondent in this removal proceeding. The respondent thus stands on the
same constitutional footing as did Coleman when it comes to the question
whether either of them has the right to the effective assistance of counsel.
See Evitts v. 

 at 396 n.7.
   As for amici’s reference to the attorney discipline regulations, this is
similar to amici’s argument that there is either a statutory or regulatory basis
for finding a right to the effective assistance of counsel in civil immigration
cases, even though the Constitution may not provide such a right. In removal
proceedings, a respondent has the “privilege” of being represented, “at no
expense to the Government.” Sections 240(b)(4)(A), 292 of the Immigration
and Nationality Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362 (2000). This,
however, does not imply a right to competent counsel. See Pennsylvania v.
Finley, 

 (1987) (indicating that the conduct of counsel appointed
under state law, but not constitutionally mandated, is not to be measured
against the standard for constitutionally effective counsel); Taylor v. Dickel,

 (8th Cir. 2002) (finding no statutory right to effective
assistance of counsel in a civil case); Stanciel v. Gramley, 

 (7th Cir. 2001) (same); Father & Sons Lumber and Bldg. Supplies,
Inc. v. NLRB, 

, 1097 (6th Cir. 1991) (finding no statutory right
to effective assistance of counsel under the Administrative Procedures Act).
If a statutory right to counsel is not sufficient to create a right to the effective
assistance of counsel, it follows that regulatory provisions dealing with
attorney discipline provide no stronger footing for such a claim. 2

2
    Amici also advance an “equitable tolling” claim as to the motion to reopen issues in this case,
                                                                                   (continued...)

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   In sum, neither the majority nor amici offer a convincing basis for
distinguishing Coleman v. 

 and Wainwright v. 

 in the context of removal proceedings. The procedures we established
in Matter of Lozada, 

 (BIA 1988), aff’d, 

 (1st
Cir. 1988), for setting forth an ineffective assistance of counsel claim were
founded on the assumption that aliens have a Fifth Amendment right to the
effective assistance of counsel in immigration proceedings. That assumption,
however, is not supported by Supreme Court case law.
   Still, this does not end the inquiry. As the majority explains, we could take
the respondent’s original late appeal using our certification powers. 

(c ), 3.7 (2002); see also Matter of Jean, 

, 380 n.9
(A.G. 2002) (stating that the certification authority is limited to “exceptional”
situations and is not intended as a general cure for filing defects or for
circumventing the regulations, even when enforcing them results in hardship);
Matter of J-J-, 

 (BIA 1997) (same, but addressing our
sua sponte reopening powers). Further, the majority could retain the
procedural tests announced in Matter of 

 in connection with
any case where attorney error or misconduct lies at the heart of our
consideration of the case for certification.
   The reasons identified by the majority at the end of its decision are more
than sufficient for us to decline to certify the respondent’s original late appeal
in this case. Because of its acceptance of circuit court case law, however, the
majority necessarily focuses on whether due process requires us to take the
late appeal, as opposed to focusing on considerations pertaining to
certification under the regulations. The difference, moreover, is likely to be
of meaningful consequence.
   For example, the majority’s determination that the respondent has a Fifth
Amendment right to the effective assistance of counsel in his removal case
forces the majority to address the Supreme Court’s decision in Roe v.
Flores-Ortega, 

 (2000) (holding, in a criminal case
involving a first appeal as of right, that when counsel files a late appeal that
“deprives a defendant of an appeal that he otherwise would have taken, the
defendant has made out a successful ineffective assistance of counsel claim
entitling him to an appeal” without the need to show any additional prejudice
in relation to the appeal).

2
    (...continued)
but not as to the original untimely appeal, which forms the basis for the ineffective assistance
of counsel claim. Statutes of limitation are subject to tolling but jurisdictional provisions are
not. See Zipes v. Trans World Airlines, Inc., 

 (1982); Davis v. Johnson, 

 (5th Cir. 1998). Our appeal deadline is a jurisdictional provision. Matter of
Mladineo, 

 (BIA 1974) (stating that dismissal of an appeal as untimely
“was solely for lack of jurisdiction”); see also Matter of Escobar, 

 (BIA
1983) (addressing timeliness as a question of jurisdiction over the appeal).

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    The majority is correct that Fifth Amendment due process would not
necessarily require identical procedures in different categories of cases. So
it is not clear that the ruling in Roe v. 

 respecting the
nature of the prejudice needed in cases of untimely appeals, would extend to
removal proceedings, even assuming the right to effective assistance of
counsel. But the majority itself recognizes that there already seems to be a
circuit split on this very subject, leading potentially to different procedures
in different circuits. Compare Hernandez v. Reno, 

 (1st Cir.
2001) (declining to rigidly follow Roe v. Flores-Ortega in the immigration
context), with Dearinger ex rel. Volkova v. Reno, 

 (9th Cir.
2000) (applying Roe v. Flores-Ortega in the context of an untimely review
petition in an immigration case).
    None of this would matter, however, if the majority’s focus were on our
independent certification power instead of the requirements of due process.
Further, some level of review of the underlying merits of a late appeal seems
inherent in either the majority’s approach or in the exercise of discretion
involving certification. But, as Matter of Jean, supra, makes clear, the
ordinary hardships arising from an untimely appeal would not warrant
certification, meaning that our review could be more selective, with a focus
on the needed exceptional situation.
    The majority’s approach, as applied in this case, seems more focused on
a simple assessment of whether there was any merit to the underlying late
appeal. The point of an appeal deadline, however, would be substantially
undermined for cases involving counsel if the deadline could be overcome by
a simple showing of some merit to the appeal after compliance with the
procedural steps required by Lozada.
    As for Board Member Pauley’s approach to retaining Lozada by analogy
to Dickerson v. United States, 

 (2000), we are not the Supreme
Court. Board Member Pauley acknowledges that the foundations of Lozada
could be wrong. But he declines to examine Supreme Court law, because he
believes we should adhere to a widely accepted past precedent such as
Lozada, regardless of whether it is a correct reflection of the law. While I
agree that we should not lightly abandon precedents, we do not speak with
authority on issues of constitutional law. Further, our pronouncements in
Lozada on the procedures for presenting a constitutionally based claim are
not even fully respected by all courts of appeals. See Castillo-Perez v. INS,

 (9th Cir. 2000). Perhaps most significantly, Board Member
Pauley’s approach would seem to require us to override the outcome dictated
by statute in some future cases, based on the failings of counsel in those
cases, without even identifying the specific source of our authority for such
action. The stature of a Board precedent implementing constitutional rulings
from the courts of appeals is not, by itself, a sufficient basis for departing


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from the dictates of the statute and regulations when Supreme Court law
reflects that our precedent does not stand on firm ground.
   In the end, we are an administrative tribunal, and we are bound by the
authority of higher courts. It is disconcerting when we confront two lines of
seemingly irreconcilable higher authority and when we must choose between
them. But, in the absence of an analytically sound basis for distinction, I do
not believe we would show disrespect to the courts of appeals if we were to
follow the direction of the Supreme Court.
   I would dismiss the current appeal for these reasons.
CONCURRING OPINION: Roger A. Pauley, Board Member
   I join part III.C. of the majority opinion but cannot join part III.B. as a basis
for continuing to apply Matter of Lozada, 

 (BIA 1988),
aff’d, 

 (1st Cir. 1988). Carefully examined, the majority opinion
declines to declare that Matter of Lozada rightfully rests on a constitutional
footing. Instead, it observes (1) that the United States Supreme Court
decisions relied on for the contrary view, as espoused by the Immigration and
Naturalization Service and Board Member Filppu, were decided in a different,
i.e., criminal law, context; and (2) that all but one of the circuits to have
considered Lozada’s underpinnings, including the United States Court of
Appeals for the Fifth Circuit, within whose jurisdiction this case arises, have
concluded (albeit without citing those Supreme Court decisions) that Lozada
is grounded on Fifth Amendment due process principles. The majority then
find, on the authority of Matter of Anselmo, 

 (BIA 1989), and
Matter of Martin, 

 (BIA 2002), that the Board is without
power to consider the Service’s argument because accepting it would
represent the Board’s finding that the courts of appeals “that have analyzed
the issue . . . have reached an incorrect result.” Matter of Assaad, 

, 560 (BIA 2003). Such a conclusion, the majority determine, is
“beyond” the Board’s limited authority as an administrative decision-making
body. 

   I cannot subscribe to this reasoning. Nothing in Matter of Anselmo, supra,
Matter of Martin, supra, or any other precedent decision of the Board
supports, much less mandates, the rather astonishing proposition that we must
defer to courts of appeals rulings that are at odds with (and that do not even
acknowledge) governing Supreme Court decisions. Indeed, Matter of
Anselmo itself discusses and distinguishes with approval a precedent in which
the Board refused to apply a court of appeals decision, precisely because the
issue was before the Supreme Court and had been challenged by the Solicitor
General. Matter of Mangabat, 

 (BIA 1972), aff’d sub nom.
Cabuco-Flores v. INS, 

 (9th Cir. 1973). It is axiomatic that
Supreme Court decisions are the “law of the land” and take precedence over

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pronouncements by lower federal courts. While we have properly determined
that, in the normal course of events, a court of appeals decision is binding
upon us for cases arising in that circuit, to find that we are bound by that rule
where the appellate court has itself failed to follow a governing Supreme
Court decision would not only derogate from the authority of the Supreme
Court, it would tend, in many cases, to prevent the Court from ever having an
opportunity to review the issue.
   Were it not, therefore, for the ground on which I concur in the majority’s
result, I would find myself, as does Board Member Filppu, compelled to
consider and to determine whether the Supreme Court’s rulings on the
constitutional scope of the right to counsel support the Board’s Lozada ruling,
and if not, whether any statutory or other basis properly exists therefor.
Moreover, in that circumstance, I might well join Board Member Filppu in
concluding that its legal foundations, if any, lie in quicksand.1
   In my view, however, the proper outcome of this case is dictated by
adherence to the principle of stare decisis. While the legal basis of Matter
of 

 is unclear, and is deliberately left so by the majority’s
opinion, that is not sufficient reason to abandon it as a precedent. The
Supreme Court was recently faced with a similar situation in Dickerson v.
United States, 

 (2000), where a substantial challenge was
mounted to the constitutional foundation of the Court’s decision in Miranda
v. Arizona, 

 (1966), that before custodial interrogation by law
enforcement may be conducted, certain warnings of rights must be
administered. The majority, however, failed to reach the merits and declined
on stare decisis grounds to overrule Miranda, finding that its requirement of
warnings had become “embedded” in police practice. Dickerson v. United
States, supra, at 430.
   The requirements of Lozada are hardly as entrenched in our national
culture as are the Miranda warnings, and Lozada has only been on the books
for some 15 years, in contrast to Miranda’s 34 years when Dickerson was
decided. Nevertheless, Lozada has generated, in that period, an all but
universal degree of acceptance and adherence in the country, and it has

1
   The majority disregard the Supreme Court decisions on which Board Member Filppu and
the Service rely because they were rendered in a different, i.e., criminal law, context. This,
however, is not a sufficient basis of distinction. Generally speaking, criminal defendants enjoy
the protection of constitutional guarantees of the right to counsel and due process of law to a
greater extent than do aliens in civil immigration proceedings. The majority recognize this
principle—indeed they accord it determinative effect—when they find that the automatic
prejudice rule that the Supreme Court itself has held applies in the criminal context to counsel’s
failure to file a timely appeal does not apply in this case. But the majority unaccountably fail
to apply the same principle to the Supreme Court’s due process decisions regarding the right
to effective assistance of counsel or to explain why limitations on that right acknowledged by
the Supreme Court in the criminal context do not apply, a fortiori, in immigration proceedings.

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become “embedded” in immigration law and practice through application by
immigration law practitioners, Immigration Judges, and the courts in
thousands of cases. Moreover, in contrast to the situation in Dickerson,
where, shortly after Miranda was issued, Congress enacted a statute
embodying its disagreement that warnings are a constitutionally necessary
ingredient for determining the admissibility of statements given during
custodial interrogation, it is noteworthy that Congress has not seen fit to even
attempt to reject or modify Lozada through legislation, despite having passed
major immigration reforms in the years since it was decided.
   Therefore, whether or not I would have agreed with Lozada’s “reasoning
and its rule in the first instance, stare decisis weighs heavily against
overruling it now.” Dickerson v. United States, supra, at 429; cf. Matter of
Velarde, 

 (BIA 2002) (Pauley, dissenting). Finally,
Lozada’s rule may well have served to improve the quality of legal
representation afforded to aliens in immigration proceedings and thus, like the
warnings required by Miranda, the effect of Lozada does not provide the
“special justification” the Supreme Court has held is necessary to justify
overturning an established precedent. Dickerson v. United States, supra, at
429.2
   I therefore agree with the majority that Lozada remains applicable to the
respondent’s case. But as earlier noted, I also join in the majority’s holding,
in accordance with a decision from the First Circuit,3 which initially affirmed
Lozada, that the respondent needed to demonstrate that he suffered prejudice
from the ineffective assistance of counsel in failing to file a timely notice of
appeal, but he did not do so. Accordingly, I concur in the order dismissing
his appeal.




2
  Board Member Filppu criticizes this approach because “we are not the Supreme Court” and
“do not speak with authority on issues of constitutional law.” Matter of Assaad, supra, at 568
(Filppu, concurring). I do not find these facts to weaken the propriety of relying on stare
decisis principles as a basis for deciding this case. Presumably, Board Member Filppu is
implying that the decisions of lower tribunals should be regarded as less worthy of precedential
deference by those tribunals, because of the possibility of reversal by a higher authority. But
I am aware of no such doctrine. Rather, the extent of reliance on settled questions of law,
which as noted above is great in this case, plays the major part in stare decisis. In short, stare
decisis is not only for the Supreme Court. See, e.g., EEOC v. Trabucco, 

 (1st Cir.
1986).
3
   Hernandez v. Reno, 

 (1st Cir. 2001).

                                              571