CA9 on Third Prong of Lozada: Correa-Rivera v. Holder

CA9 on Third Prong of Lozada: Correa-Rivera v. Holder

"Here, we need not determine whether Correa-Rivera’s attorney’s ineffectiveness was sufficiently obvious from the record, so as to waive the Lozada requirements, because the BIA’s determination that Correa-Rivera failed to comply with Lozada was erroneous.  The BIA held that Correa-Rivera didn’t comply with the third requirement:  “Notwithstanding [Correa-Rivera’s] assertion on appeal that he has filed a complaint with the California Bar, he has failed to provide probative evidence that he actually filed the complaint.”  Specifically, the BIA faulted Correa-Rivera for failing to provide “correspondence from the Bar indicating receipt  of the complaint.”  But Lozada doesn’t require that a petitioner present “probative evidence” of having submitted a complaint to the bar, much less correspondence from the bar acknowledging such a complaint.  Lozada suggests only that the motion “should reflect” whether such a complaint has been filed. ... Here, the “record is undisputed” that the lawyer failed to file Correa-Rivera’s application. ...  Because of that failure, Correa-Rivera “was prevented from reasonably presenting his case.”  ... Correa-Rivera lost his  opportunity to apply for cancellation of removal.  Therefore, he was prejudiced by the lawyer’s ineffective assistance.  On remand, the BIA shall reopen Correa-Rivera’s case and allow him to  file his application for cancellation of removal.  PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED." - Correa-Rivera v. Holder, Feb. 6, 2013.  [Hats off to Ray Estolano!]