Reopening a Case for Ineffective Assistance of Counsel (Lozada)

Yes — a removal order can sometimes be reopened because a prior lawyer or "notario" botched the case, but only if you meet a specific, strictly enforced test. The Board of Immigration Appeals (BIA) set that test in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and immigration judges and the BIA still use it today. You generally must file within 90 days of the final order, so if you think your case was lost because of bad legal help, treat this as urgent.

What "ineffective assistance of counsel" means here

In criminal court, a defendant has a constitutional right to a competent lawyer. Removal proceedings are civil, not criminal, so that guarantee does not automatically apply — noncitizens have no government-appointed right to counsel, and courts have gone back and forth on the exact legal theory behind reopening for a bad lawyer. In practice, though, the BIA has for decades let people ask to reopen a case where a lawyer's (or a fraudulent "notario" or unauthorized "immigration consultant's") errors were so serious they deprived the person of a fair chance to present their case — for example, missing a hearing because the attorney never told the client about it, failing to file an application that was clearly available, giving wrong eligibility advice, or simply taking money and doing nothing.

Mistakes that are just strategic judgment calls, or that would not have changed the outcome, usually do not qualify. You have to show both that the prior representative's conduct was deficient and that it likely affected the result of your case.

The three Lozada requirements

To get a motion to reopen based on ineffective assistance taken seriously, the BIA has long required (with rare exceptions) that you meet three procedural steps:

1. A detailed, signed affidavit. You (the respondent) submit a sworn statement describing exactly what you agreed the lawyer would do, what the lawyer actually did or didn't do, and what you were told at each stage.
2. Notice to the former attorney. Before you file, you must inform the former lawyer of the specific allegations against them and give them a real chance to respond. You then submit that response — or proof that you gave notice and the lawyer didn't respond — with your motion.
3. A statement about a bar or disciplinary complaint. The motion must say whether you have filed a complaint with the state bar (or, for a notario/unauthorized practitioner, with the relevant consumer-protection or law-enforcement authority) and, if you haven't, explain why not.

These requirements exist so that immigration judges don't have to just take your word for it that your old lawyer was the problem — and so the former attorney gets a fair chance to tell their side. Courts describe compliance as "rarely exempted" and apply it strictly, though a few federal circuit courts allow some flexibility when the record otherwise clearly shows the error (for example, a lawyer's own written admission of the mistake). The underlying legal theory has shifted over time — a 2009 Attorney General decision briefly narrowed the framework before it was vacated — so confirm the current practice for your circuit and immigration court with an accredited representative or attorney rather than relying on what applied to someone else's case.

The deadline is the hard part — read this section first

• 90-day deadline. A motion to reopen must generally be filed within 90 days of the date the final administrative removal order was entered (8 C.F.R. §§ 1003.23(b)(1), 1003.2(c)(2)). This applies whether the order came from the immigration judge or, later, the BIA.
• Only one motion to reopen, generally. Absent a recognized exception (such as changed country conditions for an asylum claim, or a joint motion agreed to by the government), you normally get one motion to reopen per case.
• Equitable tolling may extend the deadline — but don't count on it. Federal courts and the BIA have allowed the 90-day clock to be paused ("equitably tolled") where the person acted with reasonable diligence but missed the deadline because of the very ineffective assistance being complained of — for example, not learning about the missed hearing or the lawyer's misconduct until after the window closed. Tolling is not guaranteed and rules vary by federal circuit. The moment you discover the problem, the "diligence" clock starts running against you, so waiting is the biggest risk.
• Detention and removal don't wait. If you are in ICE custody or have a scheduled removal, filing a motion to reopen does not automatically stop deportation. You may need to separately request a stay of removal from the immigration court, the BIA, or the relevant federal court of appeals.

Because deadlines and tolling standards can change and vary by jurisdiction, confirm current filing rules directly with the Executive Office for Immigration Review (justice.gov/eoir) or a qualified immigration attorney or DOJ-accredited representative before relying on any specific date.

What to do — step by step

1. Get your file. Request a complete copy of your immigration court record and, separately, ask your former lawyer for your entire case file. You are entitled to your own documents.
2. Write down the timeline now. While it's fresh, write out — in your own words, with dates — everything you were told, what you paid for, what forms were (or weren't) filed, and when you found out something went wrong. This becomes the basis of your Lozada affidavit.
3. Talk to a new, qualified attorney or DOJ-accredited representative immediately. Don't wait to "gather everything" first — the 90-day clock (or the diligence clock for tolling) is running. EOIR maintains a directory of DOJ-recognized organizations and accredited representatives, many offering low-cost or free help.
4. Send formal notice to the former attorney describing the specific allegations and asking for a response, keeping proof you sent it.
5. Decide on and document a bar/disciplinary complaint — file one with the state bar, or report a notario/unauthorized practitioner to your state attorney general, and note the outcome in your motion (or explain why you didn't file one).
6. File the motion to reopen with the affidavit, the notice-and-response documentation, the bar-complaint statement, and any new evidence, with the office that issued your final order.
7. Ask about a stay of removal at the same time if you are subject to imminent enforcement.

How this connects to notario and immigration-consultant fraud

A large share of Lozada-type motions involve not a licensed attorney at all, but a "notario público," self-styled "immigration consultant," or other unauthorized practitioner not licensed to represent people in immigration court. In many Latin American countries a "notario" is a highly trained legal official, and that title is deliberately used in the U.S. to mislead immigrants into believing the person is a lawyer. Only a licensed attorney or a DOJ-accredited representative may lawfully represent someone in immigration proceedings or give legal advice about them. If an unauthorized practitioner filed paperwork, missed deadlines, or gave you incorrect advice, that can also support a Lozada-style motion — and it's worth reporting separately as fraud or unauthorized practice of law to your state attorney general or consumer-protection office.

Before hiring anyone, verify credentials directly: check attorney licensing through your state bar, and check accredited-representative status through EOIR's official roster. Never sign blank forms, never pay for guaranteed outcomes, and keep copies of everything you sign and pay.

Related reading on this site

• Motions to Reopen and Reconsider in Immigration Court — the broader motion-to-reopen process, grounds, and how filing works beyond ineffective assistance.
• Ineffective Assistance of Counsel — how this concept works generally and how it differs between criminal and civil (immigration) proceedings.
• Know-Your-Rights Card tool — a printable reference for interactions with immigration enforcement.

Frequently asked questions

Do I have to prove my old lawyer was incompetent, or just that they made a mistake?

Both. You must show the representative's performance fell below a reasonable standard and that the error likely changed the outcome of your case — for example, that you had a real, available form of relief that was never pursued or was pursued incorrectly.

What if I can't find my old lawyer, or they won't respond to my notice?

Document your attempts (letters, emails, calls) and submit that documentation with your motion. The BIA generally still requires that you tried to give notice, but a documented non-response does not by itself defeat the motion.

Can I file this myself without a new lawyer?

You can, but given the strict procedural requirements and the short deadline, most people are better served getting help from a qualified immigration attorney or a DOJ-accredited representative, including free or low-cost legal aid organizations where available.

What happens if the 90 days already passed?

Ask an attorney or accredited representative right away whether equitable tolling could apply in your circuit based on when you actually discovered the ineffective assistance and how quickly you acted afterward. This is a fact-specific, jurisdiction-specific legal question — don't assume you're out of time without getting it checked.

Will filing this motion stop my deportation?

Not automatically. If removal is imminent, you typically need to separately request a stay of removal from the court or agency with jurisdiction over your case.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Beware of notario and unauthorized "immigration consultant" fraud — verify any representative's credentials through your state bar or EOIR's accredited-representative roster, or consult a qualified immigration attorney, before paying for or relying on anyone's help with your case.