Lozada’s Ineffective-Assistance Framework Survives Loper Bright and Remains Procedurally Mandatory in Immigration Proceedings

Case: Ginna Alejandra Gutierrez-Mikan v. U.S. Attorney General (11th Cir. Jan. 5, 2026)
Court: United States Court of Appeals for the Eleventh Circuit
Disposition: Petition for review denied

1. Introduction

This petition for review arises from removal proceedings involving Ginna Alejandra Gutierrez-Mikan, a Colombian national, and her son (a derivative asylum applicant). Gutierrez-Mikan alleged that the Revolutionary Armed Forces of Colombia (FARC) persecuted her and her family for approximately twenty years through extortion, sexual violence, arson, threats, and killings. After entering the United States in July 2021, she sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Two issues reached the Eleventh Circuit: (1) whether the Board of Immigration Appeals (BIA) erred in rejecting her ineffective-assistance-of-counsel claim for failure to satisfy Matter of Lozada procedural requirements—particularly in light of the Supreme Court’s decision in Loper Bright Enters. v. Raimondo; and (2) whether the BIA applied the proper legal standard and correctly denied CAT relief for lack of government “consent or acquiescence.”

2. Summary of the Opinion

The Eleventh Circuit denied the petition. It held that Gutierrez-Mikan’s ineffective-assistance claim failed because she did not substantially comply with the procedural prerequisites of Matter of Lozada, and Loper Bright Enters. v. Raimondo did not undermine Lozada because Lozada is grounded in the BIA’s procedural discretion over reopening rather than in deference to an agency’s interpretation of an ambiguous statute.

As to CAT, the court held that substantial evidence supported the agency’s finding that the Colombian government did not and would not “consent or acquiesce” to any torture by FARC, given evidence of peace accords, outlawing violent groups, and state efforts to document and combat FARC. The court further rejected the contention that the BIA imposed a heightened “complete failure to protect” standard, explaining that the phrase described the petitioner’s argument rather than the governing rule applied.

3. Analysis

3.1. Precedents Cited

• Standards of review and scope of review
  • Jiang v. U.S. Att'y Gen., 568 F.3d 1252 (11th Cir. 2009): The court reiterated that unless the BIA expressly adopts an IJ decision, review focuses on the BIA.
  • Jeune v. U.S. Att'y Gen., 810 F.3d 792 (11th Cir. 2016): Where the BIA explicitly agrees with IJ findings, the court reviews both decisions on those issues.
  • Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341 (11th Cir. 2009): Legal questions are reviewed de novo; factual findings for substantial evidence.
  • Silva v. U.S. Att'y Gen., 448 F.3d 1229 (11th Cir. 2006): “Substantial evidence” requires affirmance if supported by reasonable, substantial, and probative evidence considering the record as a whole.
• Ineffective assistance in immigration proceedings and Lozada compliance
  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988): The foundational BIA decision imposing procedural requirements (including notice to prior counsel and either filing a bar complaint or explaining why not) to pursue ineffective-assistance claims via reopening.
  • Dakane v. U.S. Att'y Gen., 399 F.3d 1269 (11th Cir. 2005): Recognizes the need for substantial (not necessarily exact) compliance with Lozada.
  • Ponce Flores v. U.S. Att'y Gen., 64 F.4th 1208 (11th Cir. 2023): Reaffirms that “[s]ubstantial, if not exact, compliance” with Lozada is required and quotes Dakane.
  • Gbaya v. U.S. Att'y Gen., 342 F.3d 1219 (11th Cir. 2003): Used here to explain Lozada as an exercise of the BIA’s “broad” discretion in the reopening context—not a statutory-interpretation rule.
  • Lonyem v. U.S. Att'y Gen., 352 F.3d 1338 (11th Cir. 2003): Cited for the proposition that agencies may “fashion their own rules of procedure,” anchoring the legitimacy of Lozada-type requirements as procedural gatekeeping.
  • Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978): Quoted via Lonyem for the principle that agencies possess latitude in procedural design, supporting the court’s characterization of Lozada as a procedural doctrine.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Central to petitioner’s argument; the Eleventh Circuit read it narrowly as rejecting reflexive deference to agency statutory interpretations, while preserving statutory stare decisis and leaving intact doctrines not dependent on ambiguous-statute deference.

3.2. Legal Reasoning

(A) The core holding on ineffective assistance: The court treated Lozada as a procedural prerequisite to presenting ineffective-assistance claims in immigration proceedings, requiring “substantial, if not exact, compliance” (per Ponce Flores v. U.S. Att'y Gen. and Dakane v. U.S. Att'y Gen.). Gutierrez-Mikan did not show (and did not argue) substantial compliance—specifically, she provided “no evidence” that she notified prior counsel and offered an opportunity to respond, or that she filed a bar complaint or explained why she chose not to.

(B) Why Loper Bright did not displace Lozada: The petitioner attempted to reframe Lozada as a deference-driven doctrine vulnerable after Loper Bright Enters. v. Raimondo. The Eleventh Circuit rejected that premise. It reasoned that Lozada is not an interpretation of an ambiguous provision of the Immigration and Nationality Act; instead, it is a procedural framework tied to the BIA’s discretionary administration of motions to reopen (citing Gbaya v. U.S. Att'y Gen.), and consistent with general administrative law principles allowing agencies to design procedures (citing Lonyem v. U.S. Att'y Gen. and Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.).

The court also added an alternative barrier: even if Lozada were grounded in statutory interpretation, Loper Bright expressly preserved the holdings of prior cases under statutory stare decisis and stated that mere reliance on Chevron-style deference is not, by itself, a special justification for overruling statutory precedents.

(C) CAT: “consent or acquiescence” and substantial evidence: The court applied the regulatory definition of torture and acquiescence under 8 C.F.R. §§ 1208.16(c)(4), 1208.18(a)(1), and 1208.18(a)(7). The dispositive issue was the state nexus—whether torture would occur “by, or at the instigation of, or with the consent or acquiescence of” public officials. The record permitted the agency’s finding of no acquiescence, emphasizing Colombia’s peace negotiations, prohibition of FARC/violent groups, documentation of victims, and attempts to combat FARC. The court highlighted evidence suggesting the state did not “look the other way”: FARC allegedly warned the family not to involve police and retaliated when they did, implying government opposition rather than complicity.

(D) The “complete failure” phrase was not a new legal standard: Gutierrez-Mikan argued that the BIA’s reference to a “complete failure” to protect imposed a heightened burden. The Eleventh Circuit parsed the BIA decision as describing the petitioner’s appellate framing, not as adopting a “complete failure” requirement. The governing rule the BIA adopted was the IJ’s regulation-based analysis of consent/acquiescence under 8 C.F.R. § 1208.18(a)(1), not an elevated “total breakdown” test.

3.3. Impact

• Post-Loper Bright stability for Lozada in the Eleventh Circuit: The opinion functions as an early and explicit reaffirmation that Lozada remains binding and operative even after the Supreme Court’s recalibration of judicial deference doctrines. Litigants cannot treat Loper Bright as a general-purpose vehicle to bypass procedural prerequisites for reopening-based claims.
• Practical message for immigration practitioners: Ineffective-assistance claims remain highly procedural. Failure to document notice to former counsel and the bar-complaint component (or a documented explanation) is likely fatal, even where underlying counsel errors (e.g., failure to argue a family-based “particular social group”) might be substantial.
• CAT claims: evidence must tie feared harm to state consent/acquiescence: The decision reinforces that even severe threats by non-state actors (like FARC) do not establish CAT eligibility without persuasive evidence of official awareness and a breach of a duty to intervene. Evidence of state opposition, partial enforcement, or documented anti-group measures may suffice to defeat acquiescence under substantial-evidence review.
• Appellate framing matters: The court’s treatment of the “complete failure” language shows that petitioners must distinguish between an agency’s characterization of arguments and the legal test actually applied—particularly where the standard of review is deferential.

4. Complex Concepts Simplified

• Derivative asylum claim: A child may “derive” asylum status from a parent’s successful asylum application, but withholding of removal and CAT protection typically require the principal applicant to prove their own eligibility.
• Particular social group (PSG): A protected ground for asylum/withholding. Here, the IJ found the applicant did not show harm “because” she belonged to a cognizable PSG; on appeal she claimed prior counsel failed to argue PSG theories like “nuclear family” or “resisting FARC.”
• Matter of Lozada requirements: Procedural steps designed to screen ineffective-assistance claims: notify prior counsel and provide an opportunity to respond, and file a bar complaint or explain why not. The Eleventh Circuit requires “substantial” compliance.
• Motions to reopen: A mechanism to reopen closed immigration proceedings. The BIA has broad discretion over reopening, and Lozada is treated as part of that procedural administration.
• CAT “acquiescence”: Not mere inability to stop harm. The regulation requires that an official be aware of impending torture and then breach a legal duty to intervene.
• Substantial evidence review: A highly deferential standard. The court affirms if the agency’s view is supported by reasonable, substantial, and probative evidence—even if the record could also support a different conclusion.
• Statutory stare decisis (as used here): Courts are reluctant to overrule statutory precedents; the opinion invokes Loper Bright to emphasize that a change in interpretive methodology alone does not undo earlier holdings.

5. Conclusion

The Eleventh Circuit’s decision delivers a clear rule of continuing procedural rigor: Matter of Lozada remains fully operative after Loper Bright Enters. v. Raimondo, because Lozada is rooted in the BIA’s procedural authority over reopening rather than in deference to statutory interpretation. On the merits of CAT, the court underscores that fear of brutal non-state actor violence is not enough without a demonstrated state nexus—proof that officials would consent to or acquiesce in torture as defined by regulation. Together, these holdings fortify two practical barriers to relief: strict procedural compliance for ineffective-assistance claims and a demanding, evidence-based showing of government acquiescence for CAT protection.