Strict Application of Lozada & the “Reasonable Probability” Prejudice Test in Ineffective-Assistance Motions: Salazar-Asencio v. Bondi

Introduction

Salazar-Asencio v. Bondi (2d Cir. No. 24-1230, June 9 2025) concerns a Salvadoran family’s attempt to reopen their immigration proceedings on the basis of ineffective assistance of prior counsel. Their counsel had failed to file a merits brief before the Board of Immigration Appeals (“BIA”), leading to the BIA’s summary dismissal of the underlying asylum-related appeal. Invoking Matter of Lozada, the petitioners argued that this deficiency warranted reopening. The BIA disagreed; the Second Circuit affirmed in a non-precedential summary order.

While not precedential, the decision is instructive because it re-emphasises two critical doctrinal points:

1. Meticulous compliance with the Lozada procedural framework is a gateway requirement before the agency (and reviewing courts) will reach the merits of an ineffective-assistance claim.
2. An applicant must make a prima facie showing of prejudice by demonstrating a “reasonable probability” that, but for counsel’s error, relief would have been granted.

Summary of the Judgment

The Second Circuit (Judges Newman, Sullivan, and Merriam) denied the petition to review the BIA’s refusal to reopen:

• The petitioners met the Lozada requirements only for the narrow allegation that counsel failed to file a BIA brief; they failed to notify prior counsel of other alleged deficiencies.
• Even as to that single deficiency, prejudice was not established; petitioners provided no argument or evidence showing that a properly filed brief would have altered the IJ’s adverse findings on (i) nexus to a protected ground and (ii) government inability/unwillingness or acquiescence.
• Because ineffective assistance was not shown, equitable tolling of the 90-day reopening deadline was unavailable; the motion was therefore properly denied.
• All interim stay requests were denied as moot.

Analysis

1. Precedents Cited

The panel relied primarily on Lozada and Paucar, signalling unwavering adherence to these standards.

2. Legal Reasoning

• Gateway Inquiry – Procedural Compliance: The court first confirmed that Lozada compliance determines whether the agency will even consider the merits of ineffective-assistance allegations. The petitioners’ omission of proof that prior counsel was notified of five of six complaints was fatal.
• Merits – Objective Deficiency & Prejudice: For the single preserved claim (failure to file a BIA brief), the court accepted arguendo that the omission was objectively unreasonable. Nevertheless, no prima facie evidence or argument was supplied to establish prejudice.
• Temporal Flexibility Rejected: Petitioners argued they had limited time within the 90-day filing period. The panel countered with Rashid, noting that claims of ineffective assistance can themselves toll the deadline; i.e., there was no temporal excuse for not gathering prejudice evidence.
• Record Rule: Citing 8 U.S.C. § 1252(b)(4)(A), the court refused to consider unfiled “potential affirmations” that were not in the administrative record.

3. Impact

Though a summary order, the opinion:

1. Reinforces strict procedural compliance. Practitioners must individually notify prior counsel of each alleged deficiency. A generalized grievance committee filing is insufficient.
2. Highlights heightened prejudice burden. Merely identifying counsel error, without articulating how substantive relief was likely lost, will not suffice. Anticipate that the BIA (and courts) will demand documentary or testimonial proffers within the reopening motion.
3. Limits strategic delay. The decision discourages applicants from filing “placeholder” motions hoping to supplement later, because the burden to prove prejudice lies with the movant from the outset.
4. Signals continuity with recent Second Circuit cases (Avendano Bonilla, Paucar), indicating no appetite for loosening the Lozada framework.

Complex Concepts Simplified

• Motion to Reopen: A procedural tool allowing non-citizens to ask the BIA to reconsider a final removal order based on new facts or changed circumstances.
• Ineffective Assistance of Counsel (IAC): A claim that prior legal representation was so deficient that it violated the applicant’s right to a fair proceeding. In immigration, IAC stems from the Fifth Amendment’s Due Process Clause.
• Lozada Requirements: A tripartite checklist (notice to counsel, detailed affidavit, disciplinary complaint) developed by the BIA to guard against frivolous IAC claims.
• “Reasonable Probability” Standard: Borrowed from criminal ineffective-assistance jurisprudence; asks whether there is a meaningful chance the outcome would have been different absent counsel’s errors.
• Equitable Tolling: Doctrine allowing deadlines to be extended when the petitioner diligently pursued their rights but extraordinary circumstances prevented timely action. In IAC contexts, the deficient performance itself can be the extraordinary circumstance.
• Summary Order: A disposition lacking full precedential effect under Second Circuit Local Rule 32.1.1, but still citable for persuasive value.

Conclusion

Salazar-Asencio v. Bondi reiterates that procedural precision and substantive prejudice showings are both indispensable to succeed on an ineffective-assistance-of-counsel based motion to reopen in immigration cases. Lawyers must:

1. Meticulously follow the Lozada checklist for each alleged deficiency, giving prior counsel a real opportunity to respond.
2. Compile and present concrete evidence demonstrating how the alleged deficiency probably altered the outcome.

Failure on either prong will doom the motion, and courts will not rescue applicants who provide only speculative or belated showings. Although rendered as a summary order, the Second Circuit’s reasoning aligns with—and thus strengthens—the doctrinal trajectory established in recent precedents. Future litigants should treat this decision as an authoritative reminder that effective advocacy in immigration reopening requires both procedural rigor and evidentiary heft.