Buckley v. Blanche: The BIA Must Explain Lozada Noncompliance and Reopen Where Missed Brief Likely Obscured a Meritorious “Failure to Develop the Record” Claim

I. Introduction

Case: Buckley v. Blanche (Nos. 24-1957, 25-1186)
Court: United States Court of Appeals for the First Circuit
Date: May 29, 2026
Parties: Luz Stella Buckley (petitioner), Todd Blanche, Acting Attorney General (respondent)

This consolidated decision addresses two related petitions for review arising from removal proceedings against Colombian citizen Luz Stella Buckley. Buckley sought adjustment of status based on an approved family-based visa petition filed by her adult son. An Immigration Judge (“IJ”) denied adjustment as a matter of discretion, emphasizing two long-ago, dismissed criminal charges and faulting Buckley for (among other things) not showing remorse or explaining what she learned—topics the IJ never asked about at the hearing.

Buckley appealed to the Board of Immigration Appeals (“BIA”), but her counsel failed to timely file the promised appellate brief. The BIA refused to accept a late brief and then dismissed the appeal, leaving only a thin, one-sentence challenge in the notice of appeal. Buckley then filed a motion to reopen alleging ineffective assistance of counsel under Matter of Lozada, 19 I. & N. Dec. 637.

The First Circuit (1) denied review of the underlying adjustment-of-status appeal for lack of jurisdiction over an unexhausted and discretionary claim, but (2) granted review of the denial of the motion to reopen, holding the BIA abused its discretion by failing to explain its Lozada noncompliance determination and by overlooking a substantial argument that the IJ failed to develop the record, creating a reasonable probability of prejudice from the missed brief.

II. Summary of the Opinion

  • Petition 1 (direct appeal dismissal): denied. Because Buckley did not timely file a BIA brief, her only exhausted point was a one-sentence contention that the IJ failed to balance equities. The First Circuit held it lacked jurisdiction to review that discretionary weighing under 8 U.S.C. § 1252(a)(2)(B)(i), and Buckley had not preserved a reviewable legal or constitutional claim.
  • Petition 2 (motion to reopen): granted and remanded. The BIA abused its discretion in denying reopening where: (a) it stated Buckley failed to “substantially comply” with Lozada but gave no meaningful explanation; (b) it wrongly concluded Buckley identified no material appellate issue, despite a substantial “failure to develop the record” argument; and (c) its reliance on the absence of an attached would-have-filed brief was unpersuasive in context, because the core argument was clearly presented and the brief had been before the agency at some point.

III. Analysis

A. Precedents Cited

1. Exhaustion and issue preservation

  • Maurice v. Bondi, 154 F.4th 15 (1st Cir. 2025) and Thomas v. Garland, 25 F.4th 50 (1st Cir. 2022): The court relied on these to enforce the rule that arguments not presented to the BIA generally cannot be raised for the first time on judicial review. Here, because the BIA did not accept Buckley’s late brief, the additional arguments she made to the First Circuit were unexhausted.

2. Jurisdiction limits over discretionary adjustment-of-status decisions

  • Mele v. Lynch, 798 F.3d 30 (1st Cir. 2015): Used to underscore that adjustment of status is discretionary and that 8 U.S.C. § 1252(a)(2)(B)(i) strips courts of jurisdiction to review the discretionary denial itself, while still permitting review of embedded legal/constitutional questions. Buckley’s preserved claim attacked only the discretionary balancing.
  • Yamoah v. Lynch, 641 Fed. App'x. 12 (1st Cir. 2016): Cited for the principle that courts may not reweigh the equities or second-guess the weight the IJ/BIA assigns to facts in discretionary adjustment determinations.

3. Motions to reopen and abuse-of-discretion review

  • Asaba v. Ashcroft, 377 F.3d 9 (1st Cir. 2004): Provides the standard: denial of reopening is reviewed for abuse of discretion; relief is appropriate if the BIA misinterprets the law or acts arbitrarily/capriciously.

4. Ineffective assistance framework: Lozada and First Circuit applications

  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA), aff'd Lozada v. INS, 857 F.2d 10 (1st Cir. 1988): The foundational procedural framework for asserting ineffective assistance in immigration proceedings (affidavit detailing agreement and alleged failures; notice to counsel and opportunity to respond; bar complaint or explanation).
  • Beltre-Veloz v. Mukasey, 533 F.3d 7 (1st Cir. 2008): Explains the purpose of Lozada—screening “frivolous, stale, and collusive claims”—and supports the legitimacy of requiring structured showings.
  • Betouche v. Ashcroft, 357 F.3d 147 (1st Cir. 2004): Sets out the elements of the Lozada showing and is also invoked on prejudice (reasonable probability of a different result).

5. Requirement of reasoned agency decision-making

  • López-Gómez v. Bondi, 154 F.4th 1 (1st Cir. 2025): Central to the remand: even under deferential review, the court must be able to “discern why the agency made the decision that it did.” A conclusory statement that Lozada was not satisfied, without explanation, can be an abuse of discretion.
  • Rivera-Medrano v. Garland, 47 F.4th 29 (1st Cir. 2022): Quoted via López-Gómez for the idea that the BIA need not be exhaustive where the logic is clear from the record—but here it was not.

6. Same-firm ineffective assistance and skepticism

  • Punzalan v. Holder, 575 F.3d 107 (1st Cir. 2009): Noted for the concern that a law firm alleging its own ineffectiveness may present “divided and conflicting interests,” justifying skepticism. The First Circuit distinguished Buckley’s case because counsel’s neglect was admitted in an affidavit accompanying the late-brief motion.

7. Missed briefing and prejudice standards

  • Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000): Cited as an example of circuits that presume prejudice from failure to file a brief; the First Circuit expressly declined to adopt that presumption.
  • Franco-Ardon v. Barr, 922 F.3d 23 (1st Cir. 2019) and Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001): Provide the First Circuit’s approach: no presumption; petitioner must show a “reasonable probability” the outcome would have differed if counsel had filed the brief. Hernandez also frames the fairness concern as preserving a “fair opportunity” to have claims considered.

8. IJ’s duty to develop the record (even with counsel)

  • Varela-Chavarria v. Garland, 86 F.4th 443 (1st Cir. 2023): Critical precedent: reiterates that it is an IJ’s statutory duty to help develop a sufficient record at the merits hearing, “regardless of whether the petitioner is pro se,” grounded in 8 U.S.C. § 1229a(b)(1). The Buckley panel treated this duty as directly relevant to the prejudice inquiry: if the IJ relied on facts not developed at hearing, the missed brief plausibly mattered.
  • Mekhoukh v. Ashcroft, 358 F.3d 118 (1st Cir. 2004): Supports distinguishing IJs from Article III judges: IJs have affirmative record-building responsibilities.

9. Waiver of arguments not raised in opening brief

  • Hodzic v. Bondi, 171 F.4th 44 (1st Cir. 2026): Used to deem waived any argument that the BIA abused its discretion in denying the late-brief acceptance motion because Buckley did not raise it in her opening brief.

B. Legal Reasoning

1. Why the direct petition failed: jurisdiction + exhaustion narrowed the case to an unreviewable discretionary claim

The court’s analysis begins with a procedural reality: because counsel missed the BIA briefing deadline and the BIA rejected the late brief, Buckley’s BIA appeal effectively contained only the one-sentence assertion in the notice of appeal. Applying Maurice v. Bondi and Thomas v. Garland, the First Circuit treated all newly raised arguments in the court-of-appeals briefing as unexhausted.

That left only a challenge to the IJ’s discretionary weighing of equities in adjustment of status. Under Mele v. Lynch and 8 U.S.C. § 1252(a)(2)(B)(i), the First Circuit lacks jurisdiction to review the discretionary judgment itself. The panel emphasized the narrow exception for legal/constitutional questions but found Buckley had not preserved any such claim to the BIA.

2. Why reopening was required: the BIA’s denial was arbitrary because it was unexplained and it misapprehended material prejudice

(a) Conclusory Lozada noncompliance findings are not meaningfully reviewable

The BIA denied reopening in part because Buckley allegedly failed to “substantially comply” with Lozada. The First Circuit applied López-Gómez v. Bondi: judicial review requires that the court can discern the BIA’s reasoning. Here, the BIA offered no explanation of what Lozada element(s) were missing, even though the motion included (i) an affidavit describing the representation and alleged error, and (ii) a bar complaint filed with Massachusetts disciplinary authorities.

The government pointed to a BIA footnote noting Buckley described counsel’s failure as missing the “appeal” deadline rather than the “appeal brief” deadline. The panel rejected this as an adequate explanation: the footnote’s placement and tenor read as a factual observation, not a stated rationale, and the record otherwise made clear that a notice of appeal was filed but a brief was not. Without a clearer agency explanation, the court found the Lozada ruling arbitrary.

(b) Prejudice existed because the missed brief likely prevented BIA review of a substantial “failure to develop the record” claim

Under Hernandez v. Reno and Franco-Ardon v. Barr, Buckley had to show a “reasonable probability” of a different outcome. The panel found that standard satisfied because Buckley had a strong, material appellate argument: the IJ denied adjustment by relying on adverse inferences (lack of remorse, failure to explain lessons learned, lack of assurances against future abuse, missing details on shoplifting) even though the IJ asked Buckley “no substantive questions” and the hearing record did not establish those points.

The court connected this evidentiary gap to the IJ’s affirmative statutory role under 8 U.S.C. § 1229a(b)(1), as explained in Varela-Chavarria v. Garland and Mekhoukh v. Ashcroft. If the IJ considered remorse and rehabilitation central to discretion, it was incumbent on the IJ to develop testimony on those issues before penalizing Buckley for not having provided it.

Importantly, the panel framed prejudice not as certainty of ultimate relief, but as denial of a “fair opportunity” to have the claim considered—language drawn from Hernandez. Given the mismatch between the IJ’s reasoning and the hearing record, the panel held the BIA abused its discretion in asserting there were “no material issues” that should have been raised on appeal.

(c) The “missing attached brief” rationale could not carry the denial in context

The BIA also faulted Buckley for not attaching the would-have-filed brief to the reopening motion. The First Circuit treated this as insufficient in context: the record suggested the brief had been submitted with the late-brief motion (the BIA said it was returning it), and in any event the reopening motion itself clearly articulated the central record-development argument. Against the backdrop of an arguably unfair IJ hearing and an unexplained refusal to accept the late brief, the panel could not uphold reopening denial on a technicality untethered to a clear showing of what was missing.

C. Impact

1. BIA decision-writing: explanation is essential when denying ineffective-assistance reopening

The decision reinforces that the BIA cannot dispose of an ineffective-assistance reopening motion with a bare conclusion that Lozada was not satisfied. After López-Gómez v. Bondi, Buckley operationalizes the requirement: where the record plausibly shows compliance, the BIA must specify the deficiency so a reviewing court can assess whether the agency applied the correct legal standard or acted arbitrarily.

2. Prejudice analysis: missed briefs matter when the foregone issue is procedural fairness at the IJ level

The First Circuit again refused to presume prejudice from a missed brief (contrasting the Ninth Circuit’s approach in Dearinger ex rel. Volkova v. Reno), but it set a clear path to proving prejudice: identify a concrete, potentially outcome-affecting issue the BIA likely would have considered. Here, the strongest “material issue” was not a reweighing of equities (often jurisdictionally barred) but an argument that the IJ’s process was deficient because the record was not developed.

3. IJ duty to develop the record may increasingly function as a backstop in discretionary-relief cases

Although adjustment of status decisions are generally discretionary and insulated from review, Buckley highlights that the process by which discretion is exercised can create reviewable legal questions (e.g., failure to develop the record; reliance on facts not elicited). Future litigants may frame challenges not as “the IJ weighed the equities wrong,” but as “the IJ denied discretion on a record the IJ failed to build.”

4. Practice consequences for immigration counsel

The decision underscores the practical stakes of appellate briefing defaults: missing the BIA brief can collapse exhaustion and jurisdiction, leaving only unreviewable discretionary arguments. It also signals that where counsel’s mistake prevents the BIA from seeing a substantial legal/process argument, reopening may be required—especially when removal would follow from a potentially unfair hearing record.

IV. Complex Concepts Simplified

  • Adjustment of status: A discretionary form of relief allowing certain noncitizens to become lawful permanent residents without leaving the United States. Eligibility does not guarantee approval; the IJ must also grant it as a matter of discretion.
  • Discretionary denial & jurisdiction bar (8 U.S.C. § 1252(a)(2)(B)(i)): Federal courts generally cannot review the agency’s discretionary “judgment” to deny adjustment, but they can review legal and constitutional questions (for example, whether the wrong legal standard was used).
  • Exhaustion: To raise an argument in the court of appeals, the noncitizen usually must have first presented it to the BIA. If it was not raised there (often through briefing), the court typically will not consider it.
  • Motion to reopen: A request asking the BIA to reopen a completed case to consider new evidence or arguments, including claims that prior counsel was ineffective.
  • Ineffective assistance & Lozada requirements: The BIA requires a structured showing: an affidavit explaining the representation and what went wrong; notice to prior counsel and a chance to respond; and a bar complaint (or a good reason for not filing one). The goal is to deter fabricated or collusive claims.
  • Prejudice (“reasonable probability”): In the First Circuit, it is not enough to show counsel erred; the noncitizen must show a reasonable probability the result would have been different if counsel had performed competently—often by pointing to a strong argument that was never considered.
  • IJ duty to develop the record (8 U.S.C. § 1229a(b)(1)): Unlike typical judges who rely on parties to present evidence, IJs have a statutory role that includes examining and cross-examining witnesses. If an IJ plans to rely on a topic to deny relief, the IJ may need to ask questions to ensure the record actually supports that conclusion.

V. Conclusion

Buckley v. Blanche delivers two core lessons. First, when a noncitizen’s only preserved claim is that an IJ improperly balanced equities in discretionary adjustment of status, federal courts lack jurisdiction to review that discretionary judgment. Second—and more consequentially—the BIA abuses its discretion when it denies reopening for ineffective assistance with an unexplained assertion of Lozada noncompliance and when it overlooks a substantial, potentially outcome-altering argument, particularly one grounded in the IJ’s statutory duty to develop the record.

The decision thus strengthens reason-giving requirements for the BIA in ineffective-assistance reopening cases and clarifies how “record development” failures at the IJ level can supply the material prejudice needed to reopen after a missed BIA brief.