Ineffective Assistance of Counsel: Reopening Your Case Under Lozada

Attorney Peter Loblack | Harvard-Educated | Immigration Attorney for 30+ Years
Offices: Orlando & Plantation, FL | Serving clients in Florida, across the U.S. and globally.
Admitted to practice before the United States Supreme Court & the Eleventh Circuit Court of Appeals.

What Are the Three Requirements for a Lozada Motion?

To reopen a case based on ineffective assistance of counsel, the Board of Immigration Appeals (BIA) requires three specific procedural steps under Matter of Lozada. Missing even one step usually results in a summary denial by the Immigration Judge.

• Step 1: The Detailed Affidavit – A sworn statement explaining your agreement with prior counsel, what they promised to do, and exactly how they failed to execute that representation.
• Step 2: Notice to Prior Counsel – You must formally notify the former attorney of the allegations and give them a chance to respond. You must include their response (or proof of their refusal to respond) in your motion.
• Step 3: The Bar Complaint – You must file a formal complaint with the appropriate state bar disciplinary authorities regarding the attorney's conduct. If you do not, you must provide a highly compelling legal explanation as to why.

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What Is the "Prejudice" Requirement?

Fulfilling the three procedural steps is only half the battle. You must also show "Prejudice." This means establishing a reasonable probability that you would have won your case if prior counsel had acted competently.

• Material Impact: The error must affect the core of the case, such as missing a critical filing deadline or failing to submit legally required evidence.
• Prima Facie Eligibility: We must attach the underlying application for relief (e.g., Asylum, Green Card) to the motion to show the court you actually qualify for the benefit your prior lawyer lost.
• Fundamental Unfairness: We must argue that the lawyer's conduct rendered your original hearing fundamentally unfair, violating the Due Process Clause of the Fifth Amendment.

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Can I File a Lozada Motion After the 90‑Day Deadline?

Yes. Normally, a Motion to Reopen must be filed within 90 days of a final removal order. However, through Equitable Tolling, the 90‑day deadline may be paused if attorney error caused the delay. You must show "due diligence" once you discover the mistake.

• Discovery of Error: The tolling clock starts when you knew—or reasonably should have known—of the attorney's malpractice.
• Due Diligence: You must act quickly to hire new, competent counsel and gather evidence to fix the mistake. Delaying action destroys your equitable tolling claim.
• Circuit Court Precedent: The 11th Circuit Court of Appeals (covering Florida, Georgia, and Alabama) follows highly specific, localized rules for tolling based on attorney error. You need an attorney admitted to the 11th Circuit to navigate this successfully.

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What if the Person Who Ruined My Case Was Not a Lawyer?

In Florida and across the U.S., thousands of immigrants are ordered deported every year because they trusted non-lawyers—such as "notarios," paralegals, document preparers, travel agents, or unauthorized "immigration consultants"—who filed fraudulent or incompetent applications on their behalf.

If you were harmed by the unauthorized practice of law (UPL) by anyone who is not a licensed attorney, you can still file a Motion to Reopen. However, the Lozada requirements are modified. Because a non-lawyer is not licensed, you cannot file a state bar complaint against them. Instead, the Loblack Strategy involves:

• Filing a formal consumer fraud complaint with the State Attorney General or the Federal Trade Commission (FTC).
• Filing a local police report for the unauthorized practice of law.
• Providing a sworn affidavit detailing exactly how the non-lawyer deceived you, even if you knew they were not an attorney but trusted their supposed "expertise."

How Do I Prove "Due Diligence"?

To win an Equitable Tolling claim (bypassing the 90-day deadline), you must legally prove "due diligence." This means showing the judge that you took reasonable steps to find out what was happening with your case once you suspected something was wrong.

Do not throw anything away. To win, we will need to submit hard evidence of your diligence, including:

• Text messages or WhatsApp logs asking for updates.
• Emails requesting copies of your file.
• Phone records showing repeated calls to their office.
• Receipts showing when you consulted a new attorney to fix the error.

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Myths vs. Reality: Suing Your Immigration Lawyer

The Myth	The Legal Reality
Myth: I can just tell the judge my lawyer was bad.	Reality: You must strictly follow the 3‑step Lozada protocol, or your motion will be summarily denied on procedural grounds.
Myth: Filing a bar complaint is optional.	Reality: While technically optional in rare circumstances, most judges will deny motions without it unless the explanation for not filing is legally compelling.
Myth: My new lawyer can just write a letter explaining the mistake.	Reality: You must provide a sworn, personal affidavit detailing the attorney-client agreement and proof that prior counsel was officially notified.
Myth: Any mistake my lawyer made is enough to reopen the case.	Reality: You must prove Prejudice. You must show that the attorney's specific mistake actually changed the ultimate outcome of your case.

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