Think Immigration: A Rule Meant to Protect Is Cutting Both Ways: Why Matter of Lozada Makes the Case for Independent Immigration Courts

This blog post is part of a multi-part series from members of the AILA Rule of Law (AROL) Task Force; for more information about AROL look to Chair Jerry Grzeca’s blog post which is a handy guide to its purpose, priorities, and work.

Every so often, a legal decision exposes not merely a flawed rule, but a systemic failure. Matter of Lozada is one such decision. Although intended to protect immigrants, four decades of application have transformed it into a procedural barrier that harms vulnerable respondents, imposes unjustified professional risk on immigration attorneys, and reveals a structural defect in the immigration court system itself—one that administrative reform cannot cure.

In 1988, the Board of Immigration Appeals (BIA) decided Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), asserting that claims of ineffective assistance of counsel in immigration proceedings required safeguards beyond those articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland established a straightforward two-part test: whether counsel’s performance was objectively deficient and whether that deficiency caused prejudice. Courts across the country had long applied this standard in a wide range of legal contexts. The BIA nonetheless concluded that immigration cases demanded additional procedural requirements.

Lozada imposed a three-part framework: an immigrant must submit a detailed affidavit describing the attorney-client relationship and alleged errors; notify former counsel and provide an opportunity to respond; and file a bar complaint against that attorney—or explain in detail why no complaint was filed. What emerged was not a safety net, but a rule that functions as an obstacle precisely where due process is most critical.

For immigrants facing removal, Lozada often operates as a procedural trap. Many respondents are detained, lack English fluency, or face serious barriers to understanding and navigating bar complaint systems. Yet courts routinely deny motions to reopen not because the underlying claim lacks merit, but because affidavits are imperfect, explanations insufficient, or procedural steps incomplete. As a result, legitimate due process claims are foreclosed based on technical defects rather than substantive analysis. Under Lozada, whether counsel’s performance was actually deficient—and whether it mattered—can become secondary to whether the paperwork was perfect.

The framework’s second edge cuts attorneys. Lozada does not distinguish between genuine misconduct and good-faith representation that failed due to strategy, timing, or circumstances beyond counsel’s control. As a result, immigration attorneys are often named in bar complaints not because of unethical behavior, but because the rule makes such complaints a prerequisite for relief. Even when dismissed, these complaints impose real costs: stress, reputational harm, and lost professional time. As a former Attorney General acknowledged, procedurally motivated complaints also overwhelm disciplinary authorities, obscuring actual misconduct while punishing competent practitioners. In a field already struggling to attract and retain qualified counsel, Lozada actively discourages the lawyers immigrants most depend on. This is why attorneys seeking to meet the procedural requirements must remain diligent in seeking legal and advocacy avenues that allow for compliance with Lozada without automatically giving into a mechanical application. The decision’s “if not why not” exit ramp remains underutilized and in need of greater development.

These problems are well documented. Courts, practitioners, and former immigration judges have criticized Lozada for years. And we have made progress, such as when Senator Murphy introduced the “Strengthening Immigration Procedures Act of 2024,” and the work with our colleagues at the ABA to raise awareness of the need for change. We’re definitely not alone in this battle. In 2009, Attorney General Mukasey attempted to eliminate the framework through Matter of Compean. That effort was reversed by his successor—not through legislation or independent judicial review, but through a change in political leadership.

This fact underscores the central problem. The BIA is housed within the Executive Office for Immigration Review, under the Department of Justice, and ultimately controlled by a politically appointed Attorney General. As a result, core due process standards can be expanded, narrowed, or eliminated by executive decision alone. That is not a stable foundation for justice.

An independent immigration court—structured like the federal judiciary and insulated from executive control—could address these failures. It could return ineffective assistance claims to the Strickland standard through principled adjudication, develop consistent precedent, and treat due process as a legal obligation rather than a policy choice. Matter of Lozada is not the disease; it is the symptom. The disease is a court system never given the structural independence required to do what courts are supposed to do: apply the law consistently and protect fundamental fairness.