Matter of Lozada: IAC Affidavit, Bar Complaint, and Prejudice

To bring an ineffective assistance of counsel claim in immigration proceedings, the Board of Immigration Appeals’ decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), sets out three procedural requirements you must satisfy before the Board will even look at the merits: a detailed sworn affidavit describing the agreement with former counsel and what went wrong, written notice to that attorney with an opportunity to respond, and a disciplinary complaint filed with the appropriate authority (or a written explanation for why one was not filed).¹ Meeting all three is the entry ticket. You then have to show the attorney’s errors actually prejudiced your case. The framework rests on Fifth Amendment due process, because immigration proceedings are civil and the Sixth Amendment right to appointed counsel does not apply.

The Sworn Affidavit

The affidavit is your own sworn statement, signed under penalty of perjury, describing the relationship with your former attorney and what that attorney did or failed to do. The BIA requires it to “set forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken” and “what representations counsel did or did not make.”¹

Detail is the whole point. Say whether the representation began with a signed retainer or a verbal agreement. Identify the specific services the attorney was hired to perform. Give dates, names, and the exact actions missed. If you were told you qualified for a form of relief you did not qualify for, record when that conversation happened and what was said. If a deadline was blown, name the deadline and by how many days. Attach receipts or bank statements for payments. Vague complaints like “my lawyer did a bad job” get motions denied on sight. The BIA has said plainly that “[w]here essential information is lacking, it is impossible to evaluate the substance of such claim.”¹

Notice to the Former Attorney

Before filing your motion, you have to tell your former attorney what you are accusing them of and give them a fair chance to respond.¹ Send a letter setting out the same facts your affidavit describes, and allow a reasonable window for a written reply. Use certified mail with a return receipt or another method that creates a paper trail, because proof of delivery goes into the motion package.

Whatever the attorney sends back must be submitted with your motion, even if the response denies everything or blames you. If the attorney never responds, include documentation of your attempt to reach them and note the silence. A detailed bar complaint is sometimes treated as sufficient notice, but the safer path is a direct letter sent well before your filing deadline.

The Disciplinary Complaint

Your motion must “reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”¹ For a licensed attorney, that means a grievance filed with the state bar in the state where the attorney is admitted. Every state bar publishes its own complaint form.

The BIA enforces this requirement strictly. In Matter of Melgar, 28 I&N Dec. 169 (BIA 2020), the Board held there is no exception even when the attorney has admitted fault, reasoning that carving out such situations would gut the framework. A 2026 Eighth Circuit decision denied a petition where the claimant included the substance of a complaint but could not prove it was actually sent to the disciplinary authority.

If you truly cannot file a complaint, you must explain why in writing. Reasons courts have accepted in limited circumstances include cases where the attorney has already been disbarred or suspended. “I didn’t think it was necessary” or “my attorney already admitted the mistake” will not carry. Treat the complaint as non-negotiable unless you have an extraordinary reason and can spell it out.

If Your Representative Was Not an Attorney

If you were represented by a DOJ-accredited representative from a recognized organization, the state bar has no jurisdiction. File instead with EOIR’s disciplinary counsel using Form EOIR-44. Complaints can be mailed to the EOIR Office of the General Counsel in Falls Church, Virginia, or submitted by email to the EOIR Attorney Discipline program.² The complaint must describe the conduct at issue, the dates it occurred, and the harm it caused.³ Some courts have held that representation by an accredited representative satisfies the concerns behind the complaint requirement even without a formal filing, but the safer approach is still to file with EOIR disciplinary counsel and document that you did.

Showing Prejudice

Clearing the three procedural requirements gets your motion read. The substantive question is whether the attorney’s errors changed the outcome. Lozada requires you to show both that the proceeding was “fundamentally unfair” and that you “were prejudiced by [your] representative’s performance.”¹ Pointing at a mistake is not enough. You have to show a competent attorney would have gotten a different result.

That means identifying the relief you would have pursued and demonstrating you were actually eligible for it. If your attorney missed the one-year filing deadline for asylum, submit the country conditions evidence, personal declarations, and corroborating documents that would have established your claim.⁴ If your attorney failed to submit proof of a qualifying family relationship for a visa petition, include those documents now. Present the evidence your attorney should have presented, and show the court it would have mattered.

The exact wording of the prejudice standard varies by federal circuit. Most ask whether there is a “reasonable probability” or “reasonable likelihood” of a different outcome. Some ask whether you had “plausible grounds for relief” that were lost. The Sixth Circuit requires showing that competent representation would have entitled you to continue residing in the United States. One consistent exception across circuits: prejudice is presumed or much easier to show when ineffective assistance caused you to miss your hearing entirely and produced an in absentia removal order.

Deadlines and the One-Motion Limit

A motion to reopen must be filed within 90 days of the final removal order. A motion to reconsider must be filed within 30 days.⁵ These are hard deadlines. A day late without a basis for tolling kills the motion no matter how strong the underlying claim.

You get one motion to reopen and one motion to reconsider. If your first motion is denied because you left out a bar complaint or filed a thin affidavit, you generally cannot try again with the missing piece added. Getting Lozada right on the first attempt is the whole game. The time and number limits do not apply to joint motions agreed by both parties, motions filed by DHS, or motions to rescind in absentia orders in certain circumstances.⁶

Equitable Tolling

If the 90-day or 30-day deadline has already passed, equitable tolling may extend it, but only if you can show extraordinary circumstances prevented timely filing and you pursued the claim with reasonable diligence once you discovered the problem. Ineffective assistance can itself be the extraordinary circumstance, particularly when a prior attorney concealed the removal order or the deadline. Diligence is judged against what you reasonably could have done, not against a maximum standard. Practically, the moment you learn your previous attorney harmed your case, start the Lozada process. Time spent gathering evidence and satisfying the notification and complaint requirements generally is not itself tolled.

Filing the Motion

Immigration court motions are filed electronically through the EOIR Courts and Appeals System (ECAS), mandatory at all immigration courts and the BIA since February 2022.⁷ The filing must include the motion itself, the Lozada affidavit, proof of notification to former counsel with any response received, proof of the disciplinary complaint, and the evidence supporting your prejudice argument.

Fees went up substantially in 2026. A motion to reopen or reconsider before an immigration judge costs $1,065. The same motion before the BIA costs $1,030.⁸ As of February 23, 2026, EOIR no longer accepts checks or money orders; all fees must be paid electronically through the EOIR Payment Portal. If you cannot afford the fee, request a waiver on Form EOIR-26A with documentation of financial hardship.⁹ Motions submitted without the correct fee or an approved waiver request are rejected.

After filing, DHS may oppose the motion, typically arguing the Lozada procedural requirements were not met or that no prejudice occurred. At the immigration court level, the government’s response is due within ten days of receiving the motion.¹⁰ Adjudication can take several months. If the motion is granted, the prior order is set aside and the case is reopened for new proceedings with new representation.

Filing Does Not Pause Removal

A Lozada-based motion to reopen does not automatically stay your removal order. You can be deported while the motion is pending.¹⁰ The only filings that trigger an automatic stay are motions to rescind an in absentia order and certain motions filed by qualifying victims of domestic violence. Everyone else must affirmatively request a stay from the immigration judge or the BIA, and one of them must grant it before ICE is legally obligated to hold off.

You can also request an administrative stay directly from ICE on Form I-246, filed with the local Enforcement and Removal Operations field office. That application carries a $155 fee, generally requires in-person filing, and must be accompanied by identity documents and a written explanation of why the stay is warranted.¹¹ Neither route guarantees a stay, but failing to request one means removal can proceed at any time, even the day after your motion is filed. If you are not detained, request a stay anyway; an outstanding removal order can be executed whenever ICE locates you.

1
U.S. Department of Justice (Executive Office for Immigration Review). Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)
2
Executive Office for Immigration Review. 8.5 – Complaints
3
eCFR. 8 CFR Part 1003 Subpart G – Professional Conduct for Practitioners – Rules and Procedures
4
U.S. Citizenship and Immigration Services. Form I-589, Instructions for Application for Asylum and for Withholding of Removal
5
Office of the Law Revision Counsel. 8 USC 1229a – Removal Proceedings
6
eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court
7
Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing
8
Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees
9
Executive Office for Immigration Review. Forms and Fees
10
Executive Office for Immigration Review. Immigration Court Practice Manual – 4.7 Motions to Reopen
11
U.S. Immigration and Customs Enforcement. Application for a Stay of Deportation or Removal (Form I-246)