24-2091 Ahmed v. Bondi BIA A220 718 815
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of January, two thousand twenty-six.
PRESENT: ROBERT D. SACK, RAYMOND J. LOHIER, JR., MYRNA PÉREZ, Circuit Judges. _____________________________________
RIDOIY AHMED, Petitioner,
v. 24-2091 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, Chhetry & Associates, P.C., New York, NY. FOR RESPONDENT: Yaakov M. Roth, Acting Assistant Attorney General, Sheri R. Glaser, Acting Assistant Director, Jenny C. Lee, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED and the case is REMANDED
for further proceedings.
Petitioner Ridoiy Ahmed, native and citizen of Bangladesh, seeks review of
a July 8, 2024, decision of the Board of Immigration Appeals (“BIA”) denying his
motion to reconsider the BIA’s dismissal of his appeal as untimely. In re Ridoiy
Ahmed, No. A220 718 815 (B.I.A. July 8, 2024).
We review the BIA’s denial of a motion to reopen or reconsider for abuse of
discretion, see Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir. 2006) (per curiam), but
review an ineffective assistance claim de novo, see Luna v. Holder, 637 F.3d 85, 102
(2d Cir. 2011) (“On petitions for review of denied motions to reopen, we review
de novo constitutional claims and questions of law.”); Omar v. Mukasey, 517 F.3d
647, 650 (2d Cir. 2008) (“A claim of ineffective assistance of counsel is a
constitutional claim.”). 2 After an Immigration Judge (“IJ”) denied asylum and related relief,
Ahmed’s first counsel filed a timely, but defective, notice of appeal, which was
rejected. Five months later, counsel asked the BIA to accept an untimely appeal
claiming that he did not receive the rejection notice. The BIA summarily dismissed
the appeal as untimely. Ahmed then moved to reconsider with a new attorney,
stating that the first attorney had not provided adequate assistance. The motion
for reconsideration asserted that Ahmed had received ineffective assistance from
his prior counsel but provided no explanation. The BIA denied the motion, noting
that Ahmed had not alleged factual or legal errors in the previous decision, but
instead, relied on an assertion of ineffective assistance of counsel. The BIA
concluded that Ahmed failed to comply with the procedural requirements for
making such a claim and did not show prejudice from his prior counsel’s actions.
Ahmed petitioned for review with new counsel, arguing that his two prior
attorneys both provided ineffective assistance.
To obtain reopening based on ineffective assistance of counsel, a movant
must demonstrate that counsel acted unreasonably and show prejudice from that
deficient performance. See Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023). A
movant generally must also comply with specific procedural requirements set
3 forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). 1 See Jian Yun Zheng v.
U.S. Dep’t of Just., 409 F.3d 43, 45–46 (2d Cir. 2005). Lozada dictates that a movant
should provide a detailed affidavit, give former counsel notice and a chance to
respond to the allegations, and explain any steps taken with disciplinary
authorities, if relevant. Id. at 45 n.1. The Lozada requirements “serve to deter
meritless claims and to provide a basis for determining whether counsel’s
assistance was in fact ineffective.” Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). We
do not require “slavish adherence” to these requirements, only “substantial
compliance.” Yi Long Yang v. Gonzales, 478 F.3d 133, 142–43 (2d Cir. 2007).
Crucially, we have excused compliance with the Lozada requirements where the
ineffective assistance is clear from the face of the record. Id.
We do so here. Ahmed acknowledges that his motion to reconsider did not
comply with the Lozada requirements. But the facts on which the ineffective
assistance claim is based are clear on the face of the record—Ahmed’s counsel
failed to properly file a timely notice of appeal, then waited five months to attempt
to cure the defect; and counsel acknowledged the facts underlying the error in a
1Ahmed argues that we should not adhere to Lozada following Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). But our previous decisions upholding the agency’s adoption of the Lozada requirements did not rely on Chevron deference. See, e.g., Debeatham v. Holder, 602 F.3d 481, 484–85 (2d Cir. 2010). 4 motion to accept an untimely filing. Indeed, the BIA failed to acknowledge
Ahmed’s counsel’s recognition that he filed defective and untimely notices of
appeal. See Yi Long Yang, 478 F.3d at 143 (finding error when BIA failed to
acknowledge disbarment of former attorney because it was “too important to
ignore” (quotation marks omitted)). The failure to file a non-defective notice of
appeal cannot be misconstrued as a tactical or strategic decision by counsel. Thus,
the purpose of the Lozada requirements—deterring meritless claims and providing
a basis for determining ineffectiveness—is satisfied. Id.
Having found the Lozada requirements are excused, however, Ahmed must
show that he was prejudiced by counsel’s errors. See Paucar, 84 F.4th at 80. If not,
remand would be futile. See Wei Guang Wang v. BIA, 437 F.3d 270, 275–76 (2d Cir.
2006). Ahmed argues that he was prejudiced because he was deprived of his right
to appeal to the BIA. There appears to be some ambiguity in this Circuit as to
whether the loss of an otherwise viable 2 opportunity for review, before this Court
or the BIA, may be sufficient to show prejudice on its own without a
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24-2091 Ahmed v. Bondi BIA A220 718 815
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of January, two thousand twenty-six.
PRESENT: ROBERT D. SACK, RAYMOND J. LOHIER, JR., MYRNA PÉREZ, Circuit Judges. _____________________________________
RIDOIY AHMED, Petitioner,
v. 24-2091 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, Chhetry & Associates, P.C., New York, NY. FOR RESPONDENT: Yaakov M. Roth, Acting Assistant Attorney General, Sheri R. Glaser, Acting Assistant Director, Jenny C. Lee, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED and the case is REMANDED
for further proceedings.
Petitioner Ridoiy Ahmed, native and citizen of Bangladesh, seeks review of
a July 8, 2024, decision of the Board of Immigration Appeals (“BIA”) denying his
motion to reconsider the BIA’s dismissal of his appeal as untimely. In re Ridoiy
Ahmed, No. A220 718 815 (B.I.A. July 8, 2024).
We review the BIA’s denial of a motion to reopen or reconsider for abuse of
discretion, see Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir. 2006) (per curiam), but
review an ineffective assistance claim de novo, see Luna v. Holder, 637 F.3d 85, 102
(2d Cir. 2011) (“On petitions for review of denied motions to reopen, we review
de novo constitutional claims and questions of law.”); Omar v. Mukasey, 517 F.3d
647, 650 (2d Cir. 2008) (“A claim of ineffective assistance of counsel is a
constitutional claim.”). 2 After an Immigration Judge (“IJ”) denied asylum and related relief,
Ahmed’s first counsel filed a timely, but defective, notice of appeal, which was
rejected. Five months later, counsel asked the BIA to accept an untimely appeal
claiming that he did not receive the rejection notice. The BIA summarily dismissed
the appeal as untimely. Ahmed then moved to reconsider with a new attorney,
stating that the first attorney had not provided adequate assistance. The motion
for reconsideration asserted that Ahmed had received ineffective assistance from
his prior counsel but provided no explanation. The BIA denied the motion, noting
that Ahmed had not alleged factual or legal errors in the previous decision, but
instead, relied on an assertion of ineffective assistance of counsel. The BIA
concluded that Ahmed failed to comply with the procedural requirements for
making such a claim and did not show prejudice from his prior counsel’s actions.
Ahmed petitioned for review with new counsel, arguing that his two prior
attorneys both provided ineffective assistance.
To obtain reopening based on ineffective assistance of counsel, a movant
must demonstrate that counsel acted unreasonably and show prejudice from that
deficient performance. See Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023). A
movant generally must also comply with specific procedural requirements set
3 forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). 1 See Jian Yun Zheng v.
U.S. Dep’t of Just., 409 F.3d 43, 45–46 (2d Cir. 2005). Lozada dictates that a movant
should provide a detailed affidavit, give former counsel notice and a chance to
respond to the allegations, and explain any steps taken with disciplinary
authorities, if relevant. Id. at 45 n.1. The Lozada requirements “serve to deter
meritless claims and to provide a basis for determining whether counsel’s
assistance was in fact ineffective.” Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). We
do not require “slavish adherence” to these requirements, only “substantial
compliance.” Yi Long Yang v. Gonzales, 478 F.3d 133, 142–43 (2d Cir. 2007).
Crucially, we have excused compliance with the Lozada requirements where the
ineffective assistance is clear from the face of the record. Id.
We do so here. Ahmed acknowledges that his motion to reconsider did not
comply with the Lozada requirements. But the facts on which the ineffective
assistance claim is based are clear on the face of the record—Ahmed’s counsel
failed to properly file a timely notice of appeal, then waited five months to attempt
to cure the defect; and counsel acknowledged the facts underlying the error in a
1Ahmed argues that we should not adhere to Lozada following Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). But our previous decisions upholding the agency’s adoption of the Lozada requirements did not rely on Chevron deference. See, e.g., Debeatham v. Holder, 602 F.3d 481, 484–85 (2d Cir. 2010). 4 motion to accept an untimely filing. Indeed, the BIA failed to acknowledge
Ahmed’s counsel’s recognition that he filed defective and untimely notices of
appeal. See Yi Long Yang, 478 F.3d at 143 (finding error when BIA failed to
acknowledge disbarment of former attorney because it was “too important to
ignore” (quotation marks omitted)). The failure to file a non-defective notice of
appeal cannot be misconstrued as a tactical or strategic decision by counsel. Thus,
the purpose of the Lozada requirements—deterring meritless claims and providing
a basis for determining ineffectiveness—is satisfied. Id.
Having found the Lozada requirements are excused, however, Ahmed must
show that he was prejudiced by counsel’s errors. See Paucar, 84 F.4th at 80. If not,
remand would be futile. See Wei Guang Wang v. BIA, 437 F.3d 270, 275–76 (2d Cir.
2006). Ahmed argues that he was prejudiced because he was deprived of his right
to appeal to the BIA. There appears to be some ambiguity in this Circuit as to
whether the loss of an otherwise viable 2 opportunity for review, before this Court
or the BIA, may be sufficient to show prejudice on its own without a
demonstration on the underlying merits. Compare Xai Mei Liu v. Mukasey, 271 F.
2We have held that where we lack jurisdiction to review a petition even absent counsel’s errors, that a petitioner may not rely on the unavailability of review as demonstrating prejudice. See Debeatham, 602 F.3d at 486. But no such jurisdictional barrier exists here. 5 App’x 91, 92–93 (2d Cir. 2008) (summary order) (“Liu has failed to offer any
evidence that an appeal of the BIA’s final order had any possibility of success” and
therefore failed to show prejudice) with Walker v. Dep’t of Homeland Sec., 263 F.
App’x 172, 174 (2d Cir. 2008) (summary order) (observing that it was “clear” that
failure to file a brief to the BIA, resulting in appeal’s summary dismissal, “could
warrant a finding of prejudice,” but denying petition due to petitioner’s eight-year
delay). 3 And other circuits are split on the issue, with some recognizing that
counsel’s error alone might create a rebuttable presumption of prejudice in similar
circumstances, while others have required a plausible showing on the merits. 4
3 Recently, in a non-precedential decision, we rejected a petitioner’s argument “that the lost opportunity for judicial review itself suffices to establish prejudice.” Azamov v. Bondi, No. 24-1475, 2025 WL 3096713, at *2 (2d Cir. Nov. 6, 2025). But there, the Court’s holding was premised on the notion that even had we “used [petitioner’s] preferred legal standard” to assess prejudice, he would not succeed because counsel’s mistake did not bar the petitioner, as a matter of law, from seeking judicial review. Id. at *2 n.2 (citing Riley v. Bondi, 145 S. Ct. 2190, 2203 (2025)). The same is not true here in relation to review before the BIA, and thus, our decision in Azamov would not settle the issue, even if it were precedential. 4 Compare, e.g., Flores-Castillo v. Barr, 790 F. App’x 937, 940 n.1 (10th Cir. 2019) (summary order expressing
“some doubt as to whether a petitioner who was prevented from filing a timely petition for review by the ineffective assistance of counsel is required to make a separate showing of prejudice in order to obtain relief”); Vidinski v. Lynch, 840 F.3d 912, 919 (7th Cir. 2016) (assuming arguendo “that a presumption of prejudice might apply where briefing before the [BIA] is truly deficient,” resulting in the waiver of issues, but finding such presumption rebutted where BIA considered and “reasonably rejected” the petitioner’s merits arguments in the context of a motion to reopen); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (attorney errors that forfeit appeal give rise to a presumption of prejudice, which may be rebutted if petitioner has no “plausible grounds for relief”), with Franco-Ardon v. Barr, 922 F.3d 23, 25 (1st Cir. 2019) (rejecting argument that attorney error waiving petition for review was “prejudice per se”); Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (petitioner “must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States”). 6 We need not decide the prejudice issue at this juncture because we cannot
decipher how the BIA approached the question. The BIA concluded that Ahmed
had “not established prejudice,” but it did not cite legal authority, explain its
reasoning, or provide any other basis for its decision. The BIA thus abused its
discretion in deciding Ahmed’s motion, and we remand for further consideration
and explanation of the standard it is operationalizing. See Poradisova v. Gonzales,
420 F.3d 70, 77 (2d Cir. 2005) (explaining that for a motion to reopen, the BIA
“abuses [its] discretion . . . if its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements” (quotation marks omitted)); Wei
Guang Wang, 437 F.3d at 275 (“[T]he BIA should provide us with more than
cursory, summary or conclusory statements, so that we are able to discern its
reasons for declining to afford relief to a petitioner.” (quotation marks omitted)). 5
5Finally, to the extent Ahmed argues that his second attorney was ineffective for filing an insufficient motion to reconsider, that claim is unexhausted because he has not yet raised it to the BIA. See Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (“We generally require that ineffective assistance claims be presented in the first instance to the BIA, either through a motion to reopen or on direct appeal.”). 7 For the foregoing reasons, the petition for review is GRANTED and the case
is REMANDED for further proceedings consistent with this order. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court