Actual Proof Required for Lozada Ineffective-Assistance Motions; BIA May Deny DHS Reopen-and-Dismiss Requests Without Supported Changed Circumstances

I. Introduction

In Sam Morris v. Todd W. Blanche, Acting U.S. Attorney General (6th Cir. June 25, 2026), the Sixth Circuit addressed three recurring issues in immigration judicial review: (1) how strictly issue exhaustion limits a noncitizen’s ability to challenge removability on petition for review; (2) the court’s jurisdiction to review the denial of cancellation of removal when the only dispute is the immigration judge’s ultimate discretionary weighing; and (3) what constitutes sufficient procedural compliance with Matter of Lozada for an ineffective-assistance-of-counsel motion to reopen—plus a related question about whether the Board of Immigration Appeals (BIA) must grant an unsupported DHS request to reopen and dismiss proceedings.

Parties and posture. Sam Morris, a lawful permanent resident (LPR), was placed in removal proceedings after Michigan convictions including two firearm-related offenses and an embezzlement offense. His prior counsel conceded removability under 8 U.S.C. § 1227(a)(2)(C) (firearms ground) and sought cancellation of removal under 8 U.S.C. § 1229b(a). The Immigration Judge (IJ) denied cancellation as a matter of discretion; the BIA affirmed. Morris later moved to reconsider and reopen based on ineffective assistance, arguing his Michigan conviction was not a removable firearms offense. DHS also moved to reopen and dismiss without prejudice, offering minimal explanation. The BIA denied both.

Key issues. The Sixth Circuit had to determine (a) whether Morris could challenge removability in his first petition despite not raising it before the agency; (b) whether it had jurisdiction to review the discretionary denial of cancellation; (c) whether Morris satisfied Lozada where he attached copies of letters/complaint forms but no proof they were sent/filed; and (d) whether the BIA abused its discretion by denying DHS’s request to reopen and dismiss.

II. Summary of the Opinion

  • First petition (direct review of removal order): dismissed. The removability challenge was unexhausted, and the cancellation-of-removal arguments attacked the IJ’s ultimate discretionary denial, which is barred from review by 8 U.S.C. § 1252(a)(2)(B).
  • Second petition (review of denial of motions to reconsider/reopen and DHS motion to reopen/dismiss): denied. Morris failed to satisfy Matter of Lozada because he provided no evidence the notice letter and disciplinary complaint were actually mailed/filed. The BIA also did not abuse its discretion in denying DHS’s unsupported motion to reopen and dismiss.

III. Analysis

A. Precedents Cited and Their Role

1. Jurisdiction, “final orders,” and the scope of review

  • Mohammed v. Bondi and Tantchev v. Garland: Used for the basic framework that the court reviews the BIA’s decision as the final agency determination and the applicable posture when the BIA adopts or affirms the IJ. These cases also support characterizing removability under enumerated criminal grounds as a purely legal question when properly presented.
  • Stone v. I.N.S. (overruled on other grounds by Riley v. Bondi) and Yeremin v. Holder: Establish that a denial of a motion to reconsider/reopen is a separate final order reviewable by petition for review.
  • Kucana v. Holder: Critical to the government-motion issue: where discretion is specified by regulation rather than by statute, the jurisdiction-stripping provision 8 U.S.C. § 1252(a)(2)(B)(ii) does not automatically bar judicial review.

2. Exhaustion after Santos-Zacaria—mandatory, claim-specific, and unforgiving

  • Santos-Zacaria v. Garland and Mazariegos-Rodas v. Garland: The court relied on these decisions to treat exhaustion under 8 U.S.C. § 1252(d)(1) as nonjurisdictional but still mandatory when invoked by the government.
  • Cuevas-Nuno v. Barr (abrogated on other grounds by Santos-Zacaria) and Gamas-Vicente v. Blanche: Reaffirm the Sixth Circuit’s “precision” approach: a petitioner must present each claim to the BIA; it is not enough to have generally participated in the agency process.
  • United States v. Ruiz: Morris invoked the maxim that courts can always assess their own jurisdiction. The panel accepted that general principle but held it does not override statutory exhaustion requirements.

3. Cancellation of removal and what remains reviewable

  • Wilkinson v. Garland: Used for the proposition that mixed questions (application of law to facts) can qualify as “questions of law” reviewable under 8 U.S.C. § 1252(a)(2)(D). The court nevertheless drew a line between review of eligibility-related legal standards and the unreviewable ultimate discretionary choice.
  • Galvez-Bravo v. Garland and Hernandez v. Garland: These cases illustrate that “reasoned decisionmaking” challenges can sometimes be cognizable legal questions when they concern eligibility criteria (often in non-LPR cancellation cases). The panel distinguished them because Morris’s case involved no eligibility dispute—only the IJ’s discretionary weighing.
  • Singh v. Rosen: Reinforces that even when eligibility is met, the IJ retains ultimate discretion, and that ultimate discretionary denial is what § 1252(a)(2)(B) shields from judicial review.
  • Ikenokwalu-White v. INS: Cited (through Hernandez) for the principle that whether the IJ considered an improper factor can be a purely legal question—again, a line the panel found Morris had not meaningfully crossed because his arguments targeted the discretionary outcome itself.

4. Ineffective assistance and the Lozada “actuality” requirement

  • Matter of Lozada: The controlling BIA framework: affidavit detailing counsel’s failings, notice to former counsel, and a disciplinary complaint (or adequate explanation). The Sixth Circuit treated these as enforceable procedural prerequisites.
  • Kada v. Barr, Sako v. Gonzales, Hanna v. Holder: Provide the Sixth Circuit’s standards for reviewing denials of reopening (abuse of discretion), binding effect of counsel concessions absent a valid ineffective-assistance showing, and the two-part ineffective-assistance inquiry (procedural compliance plus prejudice).
  • Hamid v. Ashcroft: The keystone for the panel’s holding that it is the actual filing of a grievance—not merely drafting or intending to file—that satisfies Lozada.
  • Matter of Compean (Mukasey) and Matter of Compean (Holder): The opinion used this sequence to emphasize that any relaxation allowing an attached-but-not-filed complaint was rescinded; the governing rule returned to Lozada’s insistence on real filing.
  • Eugenio-Reyes v. Barr: Serves as a practical comparator: proof like a postal label plus USPS tracking confirming delivery can satisfy the “evidence” prong, but the absence of confirmation that former counsel was notified remains fatal.
  • Ceasor v. Ocwieja and Matter of Ramirez-Sanchez: Support the evidentiary point that attorney argument is not evidence; the BIA may require objective proof beyond counsel’s assertions.
  • Pepaj v. Mukasey: Reinforces the consequence: failure to comply with Lozada forfeits the ineffective-assistance claim.
  • Irias v. Bondi: A recent supporting example (from the Eighth Circuit) approving dismissal of an ineffective-assistance claim as procedurally deficient where “proof of sending” was missing—used to underscore the reasonableness of the BIA’s approach.

5. DHS prosecutorial discretion vs. adjudicatory control once proceedings are underway

  • Heckler v. Chaney: The foundational articulation that non-enforcement decisions are typically committed to agency discretion. The Sixth Circuit acknowledged this principle but treated it as incomplete in the immigration adjudication context.
  • Patel v. Attorney Gen., Patel v. Holder, and Hussaini v. Lynch: Cited for the general notion that prosecutorial discretion in immigration lies with DHS. The panel, however, emphasized the structural division between DHS’s enforcement role and the Attorney General/BIA’s adjudicatory authority.
  • In re W-Y-U-, In re Castro-Tum, and In re Ibarra-Vega: Used to frame what the BIA may not do (review DHS’s decision to institute proceedings) and what that implies: DHS discretion to initiate does not entail unilateral power to unwind proceedings or final orders.
  • In re Jaso and Ayala and In re Yewondwosen: The key BIA authorities distinguishing (i) DHS’s ability to cancel an NTA before jurisdiction vests and (ii) DHS’s later “privilege” to move for dismissal, which requires an “informed adjudication” rather than automatic grant.
  • Consumers' Rsch. v. FCC, Lujan v. Defenders of Wildlife, and Lexmark Int'l, Inc. v. Static Control Components, Inc.: These cases supplied the standing framework. The panel held Morris had Article III standing to challenge denial of the government’s motion because he remained subject to a final removal order; it also treated “prudential standing” as a merits question rather than a jurisdictional bar.

B. Legal Reasoning

1. Removability challenge: jurisdiction to decide legal questions does not erase exhaustion

Morris attempted to reframe removability as a jurisdictional predicate under 8 U.S.C. § 1252(a)(2)(C), arguing the court had to determine whether his Michigan firearm conviction truly triggered that bar. The panel’s response is a two-step clarification:

  1. Removability under an enumerated criminal ground is a “question of law” and thus falls within the saving clause § 1252(a)(2)(D) (citing Tantchev and Mohammed). Therefore, the court’s subject-matter jurisdiction is not eliminated merely because the case involves § 1227(a)(2)(C).
  2. But exhaustion remains mandatory. Even if the court can hear legal questions, it will not do so where the petitioner failed to present the removability argument to the BIA (relying on Cuevas-Nuno, Gamas-Vicente, and the post-Santos-Zacaria exhaustion framework).

The upshot is doctrinally important: the panel decoupled “jurisdiction to entertain legal questions” from “permission to consider an unexhausted one.” This keeps § 1252(a)(2)(D) from becoming an end-run around § 1252(d)(1).

2. Cancellation of removal: a bright line around the “ultimate discretionary choice”

The panel treated Morris’s cancellation arguments—transcript completeness, weighing criminal history, comparisons to other cases, and reliance on uncharged/dismissed conduct—as challenges to the IJ’s and BIA’s ultimate discretionary denial rather than the application of a legal eligibility standard. Because the parties agreed Morris met the statutory eligibility criteria for LPR cancellation under 8 U.S.C. § 1229b(a), the only question was whether the IJ should have exercised discretion favorably. That is precisely what 8 U.S.C. § 1252(a)(2)(B) removes from judicial review.

The opinion’s reasoning is less about whether Morris identified legal error in the abstract and more about what the alleged error is aimed at. The court acknowledged that “reasoned decisionmaking” challenges can sometimes be reviewable (as in Galvez-Bravo v. Garland and Hernandez v. Garland), but held that those cases largely concern disputes over statutory eligibility criteria, not the discretionary end-stage.

3. Lozada: copies of documents are not “proof” of notice or filing

Morris attached (i) an affidavit, (ii) a letter to former counsel, and (iii) a complaint form for the Michigan Attorney Grievance Commission—yet he provided no mailing receipts, tracking confirmation, or affidavit attestation that the items were actually sent or filed. The BIA denied reopening for noncompliance, and the Sixth Circuit affirmed under abuse-of-discretion review.

The panel’s operational rule is straightforward: Lozada requires objective evidence of actual notice and actual filing, not merely drafted documents and counsel’s unsworn representations. The opinion anchored this in:

  • Hamid v. Ashcroft (intent to file is insufficient);
  • Eugenio-Reyes v. Barr (tracking and delivery confirmation can be adequate evidence);
  • Ceasor v. Ocwieja and Matter of Ramirez-Sanchez (argument is not evidence);
  • the Matter of Compean (Mukasey/Holder) history underscoring that “attach-but-don’t-file” is not the governing approach.

Because ineffective assistance was the only route Morris offered to escape his counsel’s removability concession (per Hanna v. Holder), the procedural failure effectively ended the reopening attempt.

4. DHS motion to reopen and dismiss: discretion survives, and reasons matter

The government sought reopening and dismissal under 8 C.F.R. § 1003.2 and 8 C.F.R. §§ 239.2(a)(7), 1239.2, asserting only that circumstances “have changed” and dismissal was in the parties’ interests. The BIA denied the motion because: (i) reopening is discretionary and requires stating material new facts; and (ii) the government failed to explain what changed—especially significant given Morris’s criminal history and the public-safety implications.

The Sixth Circuit agreed, stressing a structural point: DHS has broad discretion to initiate or decline enforcement, but once jurisdiction vests and the adjudicatory machinery is engaged, dismissal is not purely a matter of enforcement discretion; it is subject to adjudicatory evaluation under governing regulations (as explained in In re Jaso and Ayala and In re Yewondwosen).

The panel also rejected Morris’s attempt to invoke 8 C.F.R. § 1003.1(m)(1)(i)(G) (mandatory grant of certain unopposed motions to terminate), holding it applies to motions to terminate, not the government’s motion to dismiss under §§ 239.2 and 1239.2, which is expressly treated differently.

C. Impact

1. Litigation strategy: removability defenses must be raised early, precisely, and to the BIA

The opinion reinforces that Sixth Circuit review is tightly bounded by issue exhaustion. Even a potentially meritorious legal challenge to whether a conviction fits 8 U.S.C. § 1227(a)(2)(C) will not be heard if it was not presented to the agency in the direct appeal. Motions to reopen may be pursued, but they do not retroactively “exhaust” a claim for purposes of the earlier petition.

2. Jurisdictional clarity in LPR cancellation cases

For LPR cancellation under 8 U.S.C. § 1229b(a), where eligibility is conceded or undisputed, this decision signals that challenges framed as “bad weighing,” “insufficient comparison,” or “unfair consideration of conduct” are likely to be treated as attacks on the ultimate discretionary choice and therefore barred by § 1252(a)(2)(B).

3. Practical compliance rule for Lozada

The decision sets a demanding but administrable bar: practitioners must build a record showing actual notice and actual filing—e.g., certified mail receipts, tracking screenshots, e-filing confirmations, or sworn declarations describing the act of sending/filing with dates and addresses. Simply attaching the drafted complaint and drafted letters is not enough.

4. Government motions: the BIA can require a real explanation

The opinion also matters for DHS practice: a bare assertion of “changed circumstances” may fail, and the BIA may deny reopening/dismissal where the motion does not state material new facts or provide a concrete rationale—particularly in cases implicating public-safety considerations.

IV. Complex Concepts Simplified

  • Exhaustion (8 U.S.C. § 1252(d)(1)): Before a federal court will consider an argument, the noncitizen must have first presented that specific argument to the BIA. After Santos-Zacaria v. Garland, exhaustion is not “jurisdictional,” but courts must enforce it when the government raises it.
  • Jurisdiction bars and saving clause (8 U.S.C. § 1252(a)(2)(B), (C), (D)): Some discretionary decisions and some criminal-removal cases limit review. But the saving clause in (D) preserves review of constitutional claims and questions of law—so long as they are properly preserved and exhausted.
  • Cancellation of removal (8 U.S.C. § 1229b): A two-step process: (1) eligibility; (2) discretionary grant or denial. Courts are more likely to review legal questions about eligibility than the final discretionary weighing.
  • Motion to reconsider vs. motion to reopen: Reconsider argues the agency got the law or facts wrong on the existing record; reopen asks to consider new, previously unavailable material facts.
  • Matter of Lozada compliance: A procedural gateway for ineffective-assistance claims requiring (i) a detailed affidavit, (ii) notice to prior counsel with opportunity to respond, and (iii) filing a disciplinary complaint (or a valid explanation). “Proof” means evidence the steps happened, not merely prepared paperwork.
  • Prosecutorial discretion vs. adjudication: DHS can decide whether to start enforcement, but once a case is in the adjudicatory system, the IJ/BIA applies regulations and may require supported reasons to dismiss.

V. Conclusion

Sam Morris v. Todd W. Blanche delivers two practical precedents for the Sixth Circuit. First, it tightens the procedural and evidentiary demands for ineffective-assistance reopening: Lozada requires proof of actual notice and actual filing, and attorney assertions cannot substitute for evidence. Second, it confirms that DHS cannot rely on enforcement discretion alone to obtain reopening and dismissal; the BIA may insist on material new facts and a supported rationale, and may deny an unsupported motion even if unopposed. Along the way, the court reaffirmed that unexhausted removability challenges are not reviewable, and that when LPR cancellation is denied purely as a matter of discretion, judicial review is generally foreclosed by statute.