“Lozada Lives After Loper Bright”: Second Circuit Reaffirms Strict Lozada Compliance for Ineffective-Assistance-Based Motions to Reopen and Enforces Petition Deadlines Under Riley v. Bondi

Introduction

In Rahman v. Bondi (No. 24-103, 2d Cir. Nov. 5, 2025) — a nonprecedential summary order — the United States Court of Appeals for the Second Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) denial of a motion to reopen removal proceedings. The petitioner, Muhammad Khalilur Rahman, a native and citizen of Bangladesh, sought reopening primarily on the ground that his former counsel failed to submit critical evidence to the Immigration Judge (IJ), an omission he characterized as ineffective assistance of counsel (IAC).

Two procedural features shaped the appeal. First, the court’s review was confined to the BIA’s December 15, 2023 denial of reopening because Rahman did not timely petition from the BIA’s April 3, 2023 affirmance of the IJ’s underlying denial of asylum and related relief. The government invoked the 30-day petition-for-review deadline, and Rahman did not argue tolling or any exception, foreclosing merits review. Second, Rahman’s motion to reopen rose and fell on whether he had adequately raised and supported an IAC claim under the BIA’s framework in Matter of Lozada. He did not.

The decision also addresses — and rejects — the contention that the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which overruled Chevron deference, undermines Lozada’s continued force. The court holds that Lozada remains applicable and that failure to substantially comply with its procedural predicates forfeits an IAC-based reopening claim.

Summary of the Opinion

• The Second Circuit denied the petition for review and limited its review to the BIA’s denial of reopening. Timely review of the BIA’s earlier merits decision was not sought, and the government insisted on the deadline under 8 U.S.C. § 1252(b)(1) as construed in Riley v. Bondi (2025).
• Rahman abandoned any challenge to the BIA’s denial of reconsideration and other potential grounds; only reopening remained at issue.
• The court reaffirmed that motions to reopen are disfavored and are reviewed for abuse of discretion. To reopen, the movant must present material evidence that was previously unavailable and could not have been discovered or presented earlier.
• Where reopening rests on IAC, the noncitizen must substantially comply with Matter of Lozada’s procedural requirements. Rahman did not comply at all; thus, his IAC-based claim was forfeited.
• Loper Bright’s overruling of Chevron does not invalidate Lozada. The Second Circuit’s Lozada jurisprudence did not depend on Chevron, and in any event Loper Bright preserved prior holdings under statutory stare decisis.
• The “clear on the face of the record” exception to Lozada did not apply. The only support for ineffectiveness was Rahman’s own testimony, which the IJ was not required to credit in light of an adverse credibility finding.

Analysis

Precedents and Authorities Cited

• 8 U.S.C. § 1252(b)(1) and Riley v. Bondi, 145 S. Ct. 2190 (2025): The petition-for-review deadline is a nonjurisdictional, claim-processing rule. It must be enforced when the government invokes it unless excused (e.g., equitable tolling). Here, the government insisted on the deadline, and Rahman offered no tolling argument; the merits of the IJ/BIA asylum denial were therefore not before the court.
• Kaur v. BIA, 413 F.3d 232 (2d Cir. 2005): When a petition is timely only as to the denial of reopening, review is limited to that decision, not the underlying merits.
• Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006): Motions to reopen are disfavored, and denials are reviewed for abuse of discretion.
• 8 U.S.C. § 1229a(c)(7)(B) and 8 C.F.R. § 1003.2(c)(1): A motion to reopen must present new, material evidence that was not previously available and could not have been discovered or presented at the former hearing.
• INS v. Abudu, 485 U.S. 94 (1988): The BIA may deny reopening where the movant fails to introduce previously unavailable, material evidence.
• Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); Jian Yun Zheng v. DOJ, 409 F.3d 43 (2d Cir. 2005); Debeatham v. Holder, 602 F.3d 481 (2d Cir. 2010) (per curiam): An IAC-based motion to reopen requires substantial compliance with Lozada’s three procedural prerequisites; failure to substantially comply forfeits the claim.
• Yi Long Yang v. Gonzales, 478 F.3d 133 (2d Cir. 2007): Recognizes a narrow exception to Lozada compliance where ineffectiveness is clear on the face of the record. The court held that this exception did not apply here.
• Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007): An adverse credibility finding can infect other uncorroborated or unauthenticated evidence; the IJ was not required to credit Rahman’s testimony about counsel’s failures.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) and Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984): Although Loper Bright overruled Chevron, the Second Circuit emphasized that its Lozada jurisprudence did not rest on Chevron. Moreover, Loper Bright preserved prior holdings under statutory stare decisis, leaving Lozada unaffected.
• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Arguments not adequately presented in the brief are abandoned. The court found abandonment regarding reconsideration and other assertions (e.g., changed conditions).
• Vera Punin v. Garland, 108 F.4th 114 (2d Cir. 2024): Exhaustion principle; arguments to the court must align with those presented to the BIA. Allusions to other counsel errors, without developing them as independent bases before the agency, were unexhausted and abandoned.

Legal Reasoning

1. Scope of review and timeliness: Because Rahman did not timely petition from the BIA’s April 3, 2023 merits decision and the government invoked § 1252(b)(1), the court — following Riley — confined its review to the BIA’s December 15, 2023 denial of reopening. The merits of asylum and related relief were not reviewable on this petition.
2. Reopening standards and evidence “unavailability”: To reopen, Rahman needed to present material, previously unavailable evidence. His theory of “unavailability” was that the evidence existed but former counsel failed to submit it — a quintessential IAC claim. As the court implicitly recognized, that is not true “unavailability” unless the petitioner properly alleges and supports IAC under Lozada.
3. Lozada compliance: Rahman neither mentioned Lozada nor submitted documents showing substantial compliance. The court reiterated that substantial compliance is required and that noncompliance forfeits the IAC claim. This threshold defect alone warranted denial.
4. No “face-of-the-record” exception: The only proof of counsel’s failure was Rahman’s own testimony. In light of the IJ’s adverse credibility determination, the IJ was not required to accept that testimony, and thus ineffectiveness was not “clear on the face of the record” under Yi Long Yang. The exception did not apply.
5. Loper Bright does not unsettle Lozada: The court rejected the argument that Lozada’s validity depended on Chevron deference. Second Circuit cases enforcing Lozada did not rely on Chevron, and even if they had, Loper Bright explicitly preserved prior case holdings via statutory stare decisis. Lozada therefore remains operative.
6. Abandonment and reconsideration: The BIA denied reconsideration because Rahman raised issues not presented in his direct-appeal brief; a motion to reconsider is not a vehicle for new issues. Rahman did not challenge that holding on petition; under Debique, any challenge to reconsideration was abandoned.
7. “Continuance” framing unavailing: Rahman argued the real issue was whether the IJ should have granted a continuance. The court treated that argument as derivative of the IAC claim (i.e., a continuance supposedly was required due to counsel’s ineffectiveness). Without Lozada compliance, reframing the issue as a continuance request could not salvage reopening.

Impact and Practical Implications

• Lozada’s vitality post-Loper Bright: Practitioners should not expect Loper Bright to relax the Lozada framework in the Second Circuit. The court’s explicit reaffirmation underscores that IAC-based reopening remains strictly conditioned on substantial Lozada compliance.
• Petition-for-review deadlines after Riley: Riley recasts § 1252(b)(1) as a claim-processing rule rather than a jurisdictional bar, but it still has bite when the government insists on enforcement. Petitioners must file within 30 days or present cogent tolling/waiver arguments; otherwise, review of the underlying merits is foreclosed.
• Record integrity and adverse credibility: When an IJ has made an adverse credibility finding, a petitioner’s uncorroborated assertions about counsel’s conduct are unlikely to establish the “clear on the face of the record” exception to Lozada. Independent documentation becomes crucial.
• Distinguishing “unavailability”: Failure by counsel to file existing evidence does not make evidence “unavailable” for reopening unless properly tethered to a procedurally adequate IAC claim. Petitioners must present both Lozada compliance and the Abudu predicate (new, material, previously unavailable evidence).
• Appellate issue preservation: The decision reiterates three recurrent pitfalls — abandonment (failing to brief an issue), exhaustion (failing to present the argument to the BIA), and the limited function of motions to reconsider (not a vehicle for new issues). Each can independently defeat appellate relief.

Complex Concepts Simplified

• Motion to reopen vs. motion to reconsider:
  • Reopen: Asks the agency to consider new, previously unavailable, material evidence; requires affidavits or other evidentiary support.
  • Reconsider: Asks the agency to reevaluate its prior decision based on alleged legal or factual errors in that decision; not a vehicle for new issues or new evidence.
• Ineffective assistance under Lozada:
  • Affidavit: Detail the agreement with prior counsel and what counsel did or did not do.
  • Notice to prior counsel: Provide counsel with the allegations and an opportunity to respond.
  • Disciplinary complaint: File one or explain why not. Substantial compliance is required; failure generally forfeits the claim.
• Claim-processing rule vs. jurisdictional bar:
  • Jurisdictional bars cannot be waived or forfeited.
  • Claim-processing rules can be waived or forfeited, but courts must enforce them when properly invoked. Under Riley, § 1252(b)(1)’s deadline is enforceable if the government insists.
• “Clear on the face of the record” exception:
  • A narrow carve-out from Lozada compliance; applies only when ineffectiveness is unmistakable from the existing record without extra proof.
  • Not met when the sole support is the noncitizen’s own testimony, especially after an adverse credibility finding.
• Adverse credibility and evidentiary spillover:
  • Per Siewe, a single instance of false testimony can taint other uncorroborated claims and documents, permitting skepticism toward unsupported assertions.

Practice Notes

• When asserting IAC in a motion to reopen, build a Lozada packet: your affidavit; the retainer or written understanding with prior counsel; proof of notice to prior counsel and any response; a bar complaint or a reasoned explanation for not filing one.
• Corroborate everything you can. Where credibility was previously questioned, independent documentation can be decisive in showing ineffectiveness without relying solely on the applicant’s testimony.
• Do not rely on Loper Bright to uproot established immigration procedures like Lozada. The Second Circuit has explicitly disclaimed that effect.
• If the BIA refused to consider evidence because it was not before the IJ, the proper route is a motion to remand (on appeal) or a motion to reopen (post-decision) with the required showings, not a bare appeal.
• Mind the 30-day petition-for-review clock and preserve tolling arguments when necessary. If the government invokes the deadline, Riley will likely foreclose merits review absent a persuasive excuse.
• In a motion to reconsider, do not raise issues not previously briefed; those belong in a motion to reopen (if new evidence) or should have been raised earlier.

What the Court Did Not Decide

• It did not revisit the IJ’s underlying credibility findings or the merits of Rahman’s asylum and related relief due to the petition’s untimeliness as to the merits decision.
• It did not evaluate prejudice from any alleged ineffectiveness (i.e., whether the omitted evidence would likely change the outcome), because Lozada noncompliance was dispositive.
• It did not decide whether changed conditions in Bangladesh could justify reopening; that claim was abandoned.

Conclusion

Rahman v. Bondi confirms two powerful gatekeeping principles in immigration litigation. First, after Riley v. Bondi, petition-for-review deadlines, though nonjurisdictional, remain robustly enforceable when the government insists, narrowing appellate scope to the decision actually and timely brought before the court. Second, Lozada’s procedural scaffolding retains full force post-Loper Bright: an IAC-based motion to reopen fails absent substantial compliance, and the narrow “clear on the face of the record” exception will not rescue a claim supported only by testimony the IJ has reason to doubt.

Although the Second Circuit’s order is nonprecedential, it offers practical guidance: petitioners must meticulously prepare IAC claims in conformity with Lozada, timely perfect appellate review, and avoid abandoning or failing to exhaust arguments. The decision reinforces long-standing requirements for reopening—new, material, previously unavailable evidence—and underscores that attorney error must be presented through the established Lozada framework, not through creative reframing or reliance on broader administrative law shifts triggered by Loper Bright.