Buckley v. Blanche: The BIA Must Explain Lozada Noncompliance and Reopen Where Counsel’s Missed Brief Likely Mattered and the IJ Failed to Develop the Record

I. Introduction

In Buckley v. Blanche (1st Cir. May 29, 2026), Colombian citizen Luz Stella Buckley sought review of two Board of Immigration Appeals (“BIA”) decisions: (1) the BIA’s dismissal of her appeal from an Immigration Judge (“IJ”) decision denying her adjustment of status as a matter of discretion; and (2) the BIA’s denial of her motion to reopen that appeal, which alleged ineffective assistance of counsel after her lawyer failed to file a timely BIA brief.

The key issues were (a) the court’s jurisdiction to review a discretionary adjustment denial when the petitioner exhausted only a generalized “equities balancing” claim, and (b) whether the BIA abused its discretion by refusing to reopen where the record suggested substantial Lozada compliance, a plausible showing of prejudice, and a serious underlying procedural concern: the IJ denied relief based on considerations that were not developed at the merits hearing.

II. Summary of the Opinion

  • Petition 1 (BIA appeal dismissal): Denied. The First Circuit held it lacked jurisdiction because the only exhausted claim challenged the discretionary weighing of factors in an adjustment-of-status decision, which is largely unreviewable under 8 U.S.C. § 1252(a)(2)(B)(i).
  • Petition 2 (motion to reopen): Granted. The court held the BIA abused its discretion in denying reopening based on ineffective assistance of counsel because:
    • the BIA offered no discernible explanation for finding a failure to substantially comply with Matter of Lozada;
    • the BIA unreasonably found no “material issues” for appeal despite a substantial argument that the IJ failed to develop the record while relying on undeveloped factors to deny relief;
    • the BIA’s “missing brief attachment” rationale did not justify denial where the key argument was clearly presented and the belated brief appeared to have been submitted at some point.

The case was remanded for further proceedings consistent with the opinion.

III. Analysis

A. Precedents Cited

1. Jurisdiction, exhaustion, and limits on review of discretionary relief

  • Mele v. Lynch, 798 F.3d 30 (1st Cir. 2015): Used for the core rule that adjustment of status is discretionary and that courts generally cannot review the agency’s discretionary denial, subject to narrow review of constitutional or legal questions.
  • 8 U.S.C. § 1252(a)(2)(B)(i): The statutory jurisdiction-stripping provision barring review of “any judgment regarding the granting of relief under” the adjustment-of-status section, which the court applied to Buckley’s exhausted argument.
  • Maurice v. Bondi, 154 F.4th 15 (1st Cir. 2025) and Thomas v. Garland, 25 F.4th 50 (1st Cir. 2022): Cited to enforce issue exhaustion; arguments not presented to the BIA could not be raised for the first time in the court of appeals.
  • Yamoah v. Lynch, 641 Fed. App’x. 12 (1st Cir. 2016): Reinforced that challenges to the agency’s weighting of facts/equities in adjustment decisions are not reviewable.

2. Motions to reopen and the abuse-of-discretion standard

  • Asaba v. Ashcroft, 377 F.3d 9 (1st Cir. 2004): Provided the governing standard—denial of reopening is reviewed for abuse of discretion, including misinterpretation of law or arbitrary/capricious action.

3. Ineffective assistance, Lozada compliance, and what the BIA must explain

  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA), aff’d Lozada v. INS, 857 F.2d 10 (1st Cir. 1988): The foundational BIA framework for ineffective assistance claims. The opinion treated Lozada as the screening mechanism, not a trapdoor for unexplained denials.
  • Beltre-Veloz v. Mukasey, 533 F.3d 7 (1st Cir. 2008): Cited to describe the purpose of Lozada—to screen out “frivolous, stale, and collusive” claims—supporting the court’s skepticism toward conclusory noncompliance findings.
  • Betouche v. Ashcroft, 357 F.3d 147 (1st Cir. 2004): Used for the specific components of Lozada (affidavit, notice to counsel/opportunity to respond, bar complaint or excuse) and for the prejudice concept referenced later by the court.
  • López-Gómez v. Bondi, 154 F.4th 1 (1st Cir. 2025) (quoting Rivera-Medrano v. Garland, 47 F.4th 29 (1st Cir. 2022)): The “reasoned explanation” requirement—reviewing courts must be able to discern why the BIA decided as it did; a too-meager explanation can itself be an abuse of discretion. This was central to rejecting the BIA’s bare statement that Buckley failed Lozada.
  • Punzalan v. Holder, 575 F.3d 107 (1st Cir. 2009): Addressed potential skepticism when the same firm alleges its own ineffectiveness due to conflicting interests; the panel distinguished this case because counsel had admitted neglect in an affidavit and because the BIA did not actually rely on a Punzalan-type rationale.

4. Prejudice standard for failure to file an immigration brief

  • Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000): Cited as an example of circuits that presume prejudice when counsel fails to file a brief.
  • Franco-Ardon v. Barr, 922 F.3d 23 (1st Cir. 2019) and Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001): The First Circuit’s approach rejecting automatic presumption and requiring a showing of a “reasonable probability” the result would have differed if a brief had been filed; the court emphasized fairness—ensuring a fair opportunity for claims to be considered.

5. The IJ’s affirmative duty to develop the record (even with counsel)

  • Varela-Chavarria v. Garland, 86 F.4th 443 (1st Cir. 2023): The key authority for the proposition that the IJ has a statutory duty to develop a sufficient record at the merits hearing, regardless of whether the noncitizen is pro se or represented.
  • 8 U.S.C. § 1229a(b)(1): The statutory source of the IJ’s duty to “interrogate, examine, and cross-examine” the noncitizen and witnesses.
  • Mekhoukh v. Ashcroft, 358 F.3d 118 (1st Cir. 2004): Used to contrast IJs with Article III judges; the immigration judge’s role includes record-building obligations.

6. Waiver in the court of appeals

  • Hodzic v. Bondi, 171 F.4th 44 (1st Cir. 2026): Cited for the proposition that Buckley waived any argument that the BIA abused its discretion in denying her motion to accept a late-filed brief because she did not raise it in her opening brief to the First Circuit.

B. Legal Reasoning

1. Why the adjustment-of-status petition failed: exhaustion plus jurisdiction stripping

Because counsel failed to file a timely BIA brief, Buckley’s BIA appeal effectively presented only a single, generalized claim: the IJ abused discretion by not properly balancing positive and negative equities. The First Circuit treated Buckley’s other appellate arguments as unexhausted under Maurice v. Bondi and Thomas v. Garland.

On what remained, the court held it lacked jurisdiction. Under 8 U.S.C. § 1252(a)(2)(B)(i) and Mele v. Lynch, the discretionary weighing of equities for adjustment of status is not reviewable, absent a genuine constitutional claim or question of law. Buckley’s one-sentence argument was characterized as exactly the type of discretionary weighing claim that is barred, consistent with Yamoah v. Lynch.

2. Why reopening was required: the BIA’s denial was arbitrary in three independent ways

(a) Conclusory Lozada rejection without explanation

Buckley submitted an affidavit and evidence of a bar complaint, appearing to track the Betouche v. Ashcroft articulation of Lozada. The BIA nevertheless stated—without specifying what was missing—that there was not “substantial compliance.”

Invoking López-Gómez v. Bondi (and Rivera-Medrano v. Garland), the First Circuit held that meaningful review requires the court to discern the agency’s reasoning. Here, the agency’s explanation was too meager to evaluate. The government’s attempt to salvage the decision based on a footnote about mislabeling (late “appeal” vs late “brief”) failed because the footnote did not clearly serve as the BIA’s rationale and the record eliminated any real confusion about what counsel failed to file.

(b) Unreasonable “no prejudice / no material issues” finding in light of the IJ’s record-development failure

Applying Hernandez v. Reno, the panel required a showing of a “reasonable probability” of a different outcome (rejecting a per se presumption of prejudice noted in Dearinger ex rel. Volkova v. Reno). The court found that standard met because Buckley had a substantial, potentially case-dispositive issue: the IJ denied discretionary adjustment based on findings about remorse, lessons learned, counseling, assurances of non-recurrence, and details of a dismissed shoplifting charge—yet the IJ asked Buckley “no substantive questions” and those topics were not developed at the hearing.

Relying on Varela-Chavarria v. Garland and 8 U.S.C. § 1229a(b)(1), the court emphasized that IJs have a statutory obligation to develop the record even where the noncitizen is represented. Under Mekhoukh v. Ashcroft, this record-building duty distinguishes IJs from passive adjudicators. Because Buckley’s counsel repeatedly tried to raise this deficient-record argument (in the late-brief motion, the rejected brief, and the motion to reopen), the BIA’s statement that counsel identified no “material issues” was deemed an abuse of discretion.

(c) The “missing brief attachment” rationale was not persuasive on this record

The BIA also faulted Buckley for not attaching the brief she would have filed. The First Circuit found that rationale inadequate because the record suggested the belated brief had been submitted earlier (and was apparently returned), and regardless, the motion to reopen itself clearly presented the critical record-development argument. In the court’s view, the BIA was on notice of a potentially meritorious issue and could not reasonably deny reopening on a technicality while offering no meaningful engagement with the substance.

C. Impact

  • Reason-giving becomes outcome-determinative in Lozada denials. The decision reinforces that when the BIA denies reopening for alleged failure to satisfy Lozada, it must articulate what requirement was not met (or why noncompliance is meaningful). Conclusory denials risk reversal under López-Gómez v. Bondi.
  • Strengthened practical leverage for “record not developed” claims. By tying prejudice to the IJ’s reliance on undeveloped considerations—and reaffirming that the IJ’s duty applies “in every case regardless of whether the petitioner is pro se” (per Varela-Chavarria v. Garland)—the opinion gives noncitizens a concrete pathway to show prejudice when counsel’s error prevented proper BIA review.
  • Incentive for IJs to test the bases they later rely on. The opinion signals that an IJ’s written decision should not rest on perceived gaps (remorse, rehabilitation, assurances, counseling) without first giving the applicant a meaningful chance to address them at the hearing.
  • Clear warning about appellate preservation. The case also illustrates how a missed BIA brief can collapse both administrative and judicial review (exhaustion) and how failing to raise issues in an opening circuit brief leads to waiver (Hodzic v. Bondi).

IV. Complex Concepts Simplified

  • Adjustment of status: A discretionary form of relief that allows certain noncitizens to become lawful permanent residents without leaving the U.S. Even if eligible, the applicant must persuade the agency to grant relief as a matter of discretion.
  • Jurisdiction stripping (8 U.S.C. § 1252(a)(2)(B)(i)): Congress limited courts’ power to review discretionary immigration decisions like adjustment of status. Courts can still review certain “questions of law” or constitutional claims, but not simple disagreement with how the agency balanced equities.
  • Issue exhaustion: A petitioner generally must present arguments to the BIA before asking a federal court to consider them. Arguments not raised below are typically off-limits on judicial review.
  • Motion to reopen: A request to restart immigration proceedings based on new facts, changed circumstances, or procedural defects (including ineffective assistance). It is discretionary and reviewed deferentially, but the agency must still act rationally and explain itself.
  • Ineffective assistance and Matter of Lozada: The BIA requires specific documentation (affidavit detailing counsel’s engagement and error; notice to counsel with an opportunity to respond; a bar complaint or explanation) to deter frivolous claims.
  • Prejudice (“reasonable probability”): In the First Circuit, it is not enough to show counsel made a mistake; the petitioner must show a reasonable probability the outcome would have been different absent the error.
  • IJ duty to develop the record (8 U.S.C. § 1229a(b)(1)): Unlike many courts where judges mainly decide what parties present, IJs have an affirmative duty to question and develop facts necessary to fairly decide the case.

V. Conclusion

delivers two interlocking lessons. First, when an adjustment-of-status denial is challenged only as a matter of discretionary weighing, federal courts generally cannot review it under 8 U.S.C. § 1252(a)(2)(B)(i), and failure to brief the BIA can make meaningful judicial review impossible due to exhaustion.

Second—and most significantly as a precedential signal—the First Circuit held that the BIA abuses its discretion when it denies reopening an ineffective-assistance claim with conclusory Lozada findings and ignores a substantial showing of prejudice, especially where the IJ’s decision rests on issues the IJ never developed at the hearing despite the IJ’s statutory record-building duty. The opinion pushes the system toward a baseline of procedural fairness: if the agency is going to deny life-altering relief based on remorse, rehabilitation, or future-risk judgments, it must ensure those topics are actually explored on the record—and if counsel’s failure prevents meaningful BIA review of such defects, reopening may be required.