Buckley v. Blanche

• Court: Court of Appeals for the First Circuit
• Decided: May 29, 2026
• Docket: 25-1186
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 24-1957, 25-1186

LUZ STELLA BUCKLEY,

Petitioner,

v.

TODD BLANCHE,* Acting Attorney General,

Respondent.

PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Montecalvo, Howard, and Aframe, Circuit Judges.

Stephen McCall Born, with whom Mills and Born, were on brief, for petitioner. Allison Frayer, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Brett Shumate, Assistant Attorney General, Civil Division, and Sarah Byrd, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, were on brief, for respondent.

May 29, 2026

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Todd Blanche is automatically substituted for former Attorney General Pamela J. Bondi as Respondent. AFRAME, Circuit Judge. Colombian citizen Luz Stella

Buckley brings two petitions for review of adverse decisions by

the Board of Immigration Appeals ("BIA"). In the first, Buckley

challenges the BIA's dismissal of her appeal from an immigration

judge's ("IJ") order denying her application for adjustment of

status. We reject this petition primarily because Buckley did not

file a timely brief with the BIA.

In the second petition, Buckley challenges the BIA's

denial of her motion to reopen her appeal based on her counsel's

ineffective assistance for failing to file a brief. We grant this

petition because the BIA abused its discretion in denying the

motion to reopen. The BIA provided no explanation for its

conclusion that Buckley failed to satisfy the procedural

requirements for reopening an appeal based on ineffective

assistance of counsel. And because the BIA overlooked Buckley's

strong argument for vacating the IJ's order denying adjustment of

status, there is a reasonable probability that Buckley was

prejudiced by her counsel's ineffectiveness.

I.

In April 2019, the Department of Homeland Security

("DHS") initiated removal proceedings against Buckley for

overstaying a visa that expired in 2005. In December 2021, Buckley

conceded removability but indicated that she would seek adjustment

of status based on a family-based visa petition filed by her adult

- 2 - son. In November 2022, after the DHS approved the petition, an IJ

heard evidence on Buckley's adjustment-of-status application.

Buckley was the only witness and testified as follows.

Buckley came to the United States from Colombia in

October 1989. Her name then was Luz Estella Giraldo. She moved

to Tennessee with her first husband who came first as a student

before obtaining a work permit.1 While in the United States,

Buckley gave birth to two children and took care of them full time.

In 1991, Buckley was charged in Knoxville, Tennessee, with

shoplifting based on allegations that she took two items worth

$104 from a Hess's department store. Buckley described the

incident as a "misunderstanding." A Tennessee court dismissed the

charge.

In 1995, when her first husband had finished his work in

the United States, Buckley and her family returned to Colombia.

After that, Buckley returned to the United States multiple times

on tourist visas. In 2005, she overstayed her most recent tourist

visa.

In 2009, while living in Waltham, Massachusetts, Buckley

was arrested for assault and battery and assault and battery with

1 For unexplained reasons, Buckley's adjustment-of-status application does not identify this first marriage even though she testified about it and her subsequent divorce. In 2011, Buckley married her present husband, Christopher Francis Buckley, who was born in Kittery, Maine. - 3 - a dangerous weapon. These charges arose after Buckley found

marijuana in her then-sixteen-year-old daughter's backpack.

Buckley became "nervous" and "angry" and then questioned her

daughter about the marijuana. In response, her daughter became

"very rude," which led Buckley to strike her daughter with the

non-metal end of a dog leash.

After the incident, Buckley allowed her daughter to go

to her father's (Buckley's first husband's) house. At the time,

Buckley and her first husband were going through a divorce. The

daughter told her father about the incident, and he reported it to

the police, which resulted in Buckley's arrest. After Buckley was

placed on pre-trial probation, the court dismissed the charges

against her. Buckley's daughter continued to live with Buckley

after this incident, and Buckley was never contacted about the

incident by her daughter's school or the Massachusetts Department

of Children and Families. The dismissed cases from Tennessee and

Massachusetts were Buckley's only exposures to the criminal

justice system in the United States or elsewhere.

Buckley's second husband and two children, who are all

United States citizens, are Buckley's only family in the United

States. Buckley presently lives in Somerville, Massachusetts, and

works for a laboratory that makes insulin for hospitals and

clinics.

- 4 - The IJ did not ask Buckley any substantive questions

during her testimony. At the hearing's conclusion, the IJ said

that she would later issue a written decision, which she did in

December 2022. In that decision, the IJ assumed that Buckley was

credible and that she presented reasonably available documentation

to support her testimony. Nevertheless, the IJ denied Buckley's

application for adjustment of status, finding that, while Buckley

was eligible for adjustment of status because of the approved

family-based visa petition, she had failed to show that she was

worthy of a favorable exercise of discretion.

In reaching this conclusion, the IJ acknowledged

Buckley's "long-term presence in the United States and close family

ties." The IJ nevertheless concluded that Buckley's application

failed because of her "serious criminal acts." To support this

finding, the IJ stated: Buckley was "not very forthcoming with

details as to why she struck her daughter with a dog leash, other

than to say it was to discipline her for her using marijuana;"

"expressed no remorse" and "minimized [her] conduct;" did not

explain "what . . . she had learned from her engagement with the

criminal trial system;" and failed to promise that she would not

again "abuse her child or anyone else." Additionally, the IJ

criticized Buckley for failing to provide more details about the

dismissed 1991 Tennessee shoplifting charge.

- 5 - Based on this analysis, the IJ concluded that, even

though "the criminal incidents are far in the past . . . the lack

of any remorse and the fact that there were two criminal incidents

does not compel a conclusion that [Buckley] will refrain from

future criminal acts." On these grounds, the IJ concluded that,

while the case was "close," Buckley was not entitled to adjustment

of status.

Buckley's attorney timely noticed an appeal of the IJ's

order with the BIA. The notice stated that the IJ had "abused her

discretion in denying [Buckley's] application for adjustment of

status on discretionary grounds without any balancing of positive

and negative equities." The notice further stated that counsel

"intend[ed] to file a separate written brief or statement."

Buckley's counsel failed to file the promised brief with

the BIA. When counsel recognized his error about a month after

the briefing deadline, he moved the BIA to accept a late-filed

brief. That motion stated that: (1) the brief was being filed

contemporaneously with the motion; (2) the late filing resulted

from counsel inadvertently failing to calendar the due date; and

(3) the IJ's ruling was unfair because, inter alia, Buckley was

never asked whether she had remorse for the past incidents or what

lessons she had learned from them. Several months later, the BIA

denied the motion without explanation. It did so even though the

brief made several substantive arguments, including that the IJ - 6 - violated her obligation to ensure that the record was fully

developed on the points that were central to the IJ's basis for

denying Buckley's application. The order indicated that the BIA

was returning the brief to Buckley's counsel.

In September 2024, about six weeks after denying

Buckley's motion to accept the late-filed brief, the BIA dismissed

Buckley's appeal on the merits. The BIA rejected the argument

raised in Buckley's notice of appeal. It concluded that Buckley

did not "meaningfully address what equities or favorable factors

she believes were not considered" in the IJ's "discretionary

analysis."

Approximately three months after the BIA's decision,

Buckley moved to reopen her BIA appeal, arguing that her counsel's

failure to file a timely brief amounted to ineffective assistance

of counsel. In her motion, Buckley stated that she had complied

with the BIA's Lozada requirements (detailed further below) for

seeking to reopen based on ineffective assistance of counsel. See

Matter of Lozada, 19 I. & N. Dec. 637 (BIA), aff'd Lozada v. INS,

857 F.2d 10 (1st Cir. 1988). She also summarized the arguments

for vacating the IJ's order that appeared in her untimely brief,

including that the IJ had "failed to develop the record as

required." Buckley asserted that if the BIA had accepted her

brief, the BIA may have ruled differently on her appeal.

- 7 - In due course, the BIA denied Buckley's motion to reopen.

It premised that ruling on three grounds: Buckley (1) had failed

to substantially comply with the Lozada requirements, (2) did not

identify any material issue that should have been raised on appeal,

and (3) did not submit the brief she would have filed if these

proceedings were reopened as an attachment to her motion to reopen.

Buckley timely petitioned this Court for review of the

BIA's dismissal of her adjustment-of-status appeal and the denial

of her motion to reopen the appeal. We will consider these

petitions separately.

II.

A.

We address first Buckley's petition contesting the

dismissal of her adjustment-of-status appeal. As already noted,

because the BIA did not accept Buckley's brief, Buckley effectively

made only one argument to the BIA: She claimed in one sentence of

her notice of appeal that the IJ had abused her discretion by not

adequately balancing the positive and negative equities when

denying adjustment of status. Buckley's brief in this Court

presents other challenges to the IJ's ruling, but we may not

consider those challenges because they were not raised before the

BIA. See Maurice v. Bondi, 154 F.4th 15, 20 (1st Cir. 2025);

Thomas v. Garland, 25 F.4th 50, 54 n.2 (1st Cir. 2022).

- 8 - We lack jurisdiction to entertain Buckley's one-sentence

argument challenging the IJ's ruling. The adjustment-of-status

decision is committed to the Attorney General's discretion. Mele

v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015). The Immigration and

Nationality Act specifically provides that "no court shall have

jurisdiction to review . . . any judgment regarding the granting

of relief under" the adjustment-of-status section. 8 U.S.C.

§ 1252(a)(2)(B)(i). Thus, the Attorney General's exercise of

discretion to deny adjustment of status is unreviewable in this

Court. Mele, 798 F.3d at 32. True, we may entertain

constitutional claims or questions of law embedded within a

petition for review challenging the denial of an

adjustment-of-status application. Id. But Buckley did not

identify to the BIA any legal error committed by the IJ. Nor did

she argue that the BIA committed a separate legal error in the

adjudication of her appeal.

Buckley's single exhausted claim is the kind of

discretionary decision that we may not review because it challenges

the IJ's weighing of considerations in denying adjustment of

status. See Yamoah v. Lynch, 641 Fed. App'x. 12, 17 (1st Cir.

2016) (stating that the weight assigned by the IJ and later the

BIA to the facts presented in denying adjustment of status is

unreviewable). Because Buckley's only exhausted claim seeks

review of a discretionary determination over which we lack - 9 - jurisdiction, we deny Buckley's petition challenging the BIA's

dismissal of her appeal.

B.

We turn now to the petition challenging the BIA's denial

of the motion to reopen. As explained above, Buckley's failure to

file a timely brief with the BIA substantially limited the scope

of her BIA appeal and, by extension, her later petition to this

Court, which we have just rejected.2 After the BIA rejected

Buckley's appeal, she moved to reopen the appeal by alleging that

her counsel was ineffective for failing to file a timely brief.

The BIA rejected that motion. Under the applicable

abuse-of-discretion standard, we will grant relief from the BIA's

denial of a motion to reopen only if the BIA misinterprets the law

or acts arbitrarily or capriciously. Asaba v. Ashcroft, 377 F.3d

9, 11 (1st Cir. 2004).

As mentioned above, the BIA denied Buckley's motion to

reopen for three reasons: (1) failure to comply with the Lozada

requirements; (2) failure to establish that her counsel's

ineffectiveness caused her prejudice; and (3) failure to provide

2 Buckley did not argue in her opening brief to us that the BIA abused its discretion in denying her motion to submit a late-filed brief. Thus, that argument is waived. See Hodzic v. Bondi, 171 F.4th 44, 50 (1st Cir. 2026). - 10 - the BIA with a copy of her brief when filing her motion to reopen.

None of these reasons withstands abuse-of-discretion scrutiny.

In Matter of Lozada, the BIA "erected a framework for

the adjudication of ineffective assistance of counsel

claims[,] . . . which we have approved . . . ." Beltre-Veloz v.

Mukasey, 533 F.3d 7, 10 (1st Cir. 2008). The purpose of the

framework is to "screen out frivolous, stale, and collusive

claims." Id.

Under the framework, the noncitizen must provide an

affidavit setting forth in reasonable detail the nature and scope

of the work that counsel undertook; an account of counsel's error;

proof that counsel was informed of the allegations and that there

was an opportunity to respond; and evidence that the noncitizen

filed a complaint with the appropriate disciplinary authority or

possesses a legitimate excuse for not doing so. Betouche v.

Ashcroft, 357 F.3d 147, 149-51 (1st Cir. 2004).

Buckley filed an affidavit attached to the motion to

reopen that appears to cover much of this ground. The affidavit

states that Buckley hired the firm Mills and Born to represent her

in the adjustment-of-status proceeding; that the IJ's ruling went

against her; and that the firm recommended an appeal to the BIA.

The affidavit further explains that Buckley's attorney, Robert

Huntington, did not file a timely appeal because of neglect and

that the BIA denied the motion to accept a late-filed brief. - 11 - Buckley also attached to her motion a complaint that she filed

against Attorney Huntington with the Office of Bar Counsel for the

Massachusetts Board of Bar Overseers. Her complaint states that

her counsel "missed the deadline for filing [her] appeal" such

that "[the BIA] did not accept the late-filed brief."

The BIA's order denying Buckley's request to reopen

states that "there has not been substantial compliance" with the

Lozada requirements. But the BIA provided no further explanation

for this conclusion. For us to conduct a meaningful review of a

BIA order, even for an abuse of discretion, "we must be able to

discern why the agency made the decision that it did." López-Gómez

v. Bondi, 154 F.4th 1, 4 (1st Cir. 2025). We do not require the

BIA to provide an exhaustive explanation "where the logical

underpinnings are clear from the record . . . ." Id. (quoting

Rivera-Medrano v. Garland, 47 F.4th 29, 39 (1st Cir. 2022)). If,

however, the BIA's explanation is too meager to permit us to

evaluate its position, "we may find an abuse of discretion . . . ."

Id. That is the situation here. For all that appears from the

record, Buckley substantially complied with the Lozada

requirements. If she failed in some meaningful way, it is unclear

to us how she did so.3

3 Buckley has been represented by the same firm throughout the proceedings before the IJ, the BIA, and in this Court. In Punzalan v. Holder, we noted that the BIA may be "rightfully . . . skeptical" when a law firm assists a petitioner - 12 - The government says that the BIA identified Buckley's

Lozada failing in a footnote to its order. In the footnote

referenced by the government, the BIA noted that, in her Lozada

affidavit, Buckley incorrectly described her lawyer's failure as

the failure "to timely file her appeal," rather than the lawyer's

failure to timely file her appeal brief.

This footnote does not explain the Lozada ruling. The

footnote appears before the section of the BIA's order where the

BIA states that Buckley failed to substantially comply with Lozada.

Thus, the footnote appears to be a mere factual observation and

not the basis for the BIA's Lozada conclusion. Absent a clearer

explanation from the BIA, we cannot say that Buckley's assertion

that her attorney failed to file her appeal rather than her appeal

brief was why the BIA thought she did not meet the Lozada

requirements. The record before the BIA showed that Buckley had

filed a notice of appeal but not a timely brief. We doubt, absent

a clearer indication, that the BIA would deny an otherwise eligible

person relief because that person used a slightly inaccurate

nomenclature to describe the procedural posture of her case,

in accusing itself of ineffective assistance of counsel, because it has "divided and conflicting interests." 575 F.3d 107, 112 (1st Cir. 2009). But the BIA did not rely on this ground in determining that Buckley did not comply with Lozada. Moreover, this case is different from Punzalan insofar as Attorney Huntington admitted his neglect in an affidavit accompanying the motion to accept the late-filed brief. - 13 - especially where the record before the BIA easily resolves any

lingering ambiguity.

The BIA's lack-of-prejudice basis for denying the motion

to reopen fares no better. Some courts have held that where a

lawyer fails to file a brief in an immigration proceeding,

prejudice is presumed. E.g., Dearinger ex rel. Volkova v. Reno,

232 F.3d 1042 (9th Cir. 2000). We have not taken that route. See

Franco-Ardon v. Barr, 922 F.3d 23, 25 (1st Cir. 2019); Hernandez

v. Reno, 238 F.3d 50, 57 (1st Cir. 2001). Under our precedent, a

lawyer's failure to file a brief will not warrant relief unless

there is a "'reasonable probability' that the result would have

been different if counsel" had filed a brief with the BIA.

Hernandez, 238 F.3d at 56. When it comes to ineffective assistance

of counsel claims, "[o]ur concern in the immigration context

is . . . preserving a fair opportunity" for the noncitizen's

claims to be considered and adjudicated. Id. at 57.

In any event, this case involves a potentially

substantial flaw in the proceedings before the IJ that could have

been rectified by Buckley's counsel having filed a timely brief

before the BIA. The IJ based her order denying adjustment of

status on several findings for which the hearing record contains

no factual predicate. Regarding the charge involving Buckley's

daughter, the IJ faulted Buckley for not providing evidence of

having completed counseling, not showing remorse, not explaining - 14 - what she learned from her engagement with the criminal justice

system, and not giving assurances that she would abstain from any

future abuse toward her child or anyone else. And for the 1991

shoplifting incident, the IJ criticized Buckley for giving "little

to no explanation surrounding her arrest." But none of these

topics was broached during Buckley's hearing. Nevertheless, these

unexplored subjects became the basis for the IJ's key adverse

conclusion that while Buckley's "criminal incidents are far in the

past . . . the lack of any remorse and the fact that there were

two criminal incidents does not compel a conclusion that [Buckley]

will refrain from future criminal acts."

We have noted that "it is an IJ's statutory duty to

assist in developing a sufficient record at the merits hearing[,]"

and that "[t]his statutory duty should be fulfilled in every case

regardless of whether the petitioner is pro se." Varela-Chavarria

v. Garland, 86 F.4th 443, 452 n.6 (1st Cir. 2023). We drew these

conclusions from the IJ's statutory obligation to "administer

oaths, receive evidence, and interrogate, examine, and

cross-examine the alien and any witnesses." Id. (quoting 8 U.S.C.

§ 1229a(b)(1)). These obligations distinguish an IJ from an

Article III judge insofar as they impose this record-building

responsibility. Mekhoukh v. Ashcroft, 358 F.3d 118, 129 n.14 (1st

Cir. 2004). Thus, our precedent required the IJ to develop an

- 15 - adequate record on Buckley's adjustment-of-status application even

though Buckley had counsel.

The IJ asked Buckley no substantive questions during the

brief hearing. Buckley's counsel focused on the age of the charges

against Buckley and that none of them resulted in a conviction.

If the IJ believed that other considerations about these charges

were critical to her weighing the adjustment-of-status equities,

it was incumbent upon her to ask Buckley about them before invoking

these considerations to deny relief. After matching the IJ's basis

for decision with the content of Buckley's hearing, we lack

assurance that there was a fair proceeding, as is required in

evaluating whether a noncitizen receives the effective assistance

of counsel. See Varela-Chavarria, 86 F.4th at 452 n.6.

Despite this troubling record, the BIA denied the motion

to reopen on the basis that counsel "has not identified any

material issues that should have be raised or addressed on appeal."

That conclusion was an abuse of discretion.

Since the initial filing misstep, Buckley's counsel has

attempted to raise the deficient-record argument at every turn.

In Buckley's motion to accept the late-filed brief, counsel argued

that the IJ based her ruling on topics about which Buckley was

"never asked." In the brief attached to that motion, counsel noted

that "[IJs] have a duty to develop the record in every

case . . . ." And again in the motion to reopen, counsel argued - 16 - that the "[IJ] failed to develop the record as required." In

short, Buckley consistently attempted to raise an argument before

the BIA about the IJ's failure to build an adequate record to

support her basis for denying adjustment of status but was denied

"a fair opportunity to have [the argument] considered[.]"

Hernandez, 238 F.3d at 57. And, as we have explained, this is a

substantial argument. Thus, Buckley has demonstrated that her

counsel's ineffectiveness in failing to file a timely brief caused

"a reasonable probability of prejudice" in the resolution of her

BIA appeal. Betouche, 357 F.3d at 151 n.8.

The BIA's final ground for denying the motion to reopen

was that Buckley did not submit the "brief she would have filed if

these proceedings were reopened." Buckley's motion to reopen

references the brief, but the brief does not appear in the

administrative record filed with this Court. It appears, however,

that the brief was submitted to the BIA alongside Buckley's motion

for acceptance of her late-filed brief given the BIA's order that

it was returning the brief. Moreover, the brief was submitted as

part of the appendix in this Court without objection from the

government. It thus appears that the brief containing Buckley's

argument about the IJ's failure to build a record was filed with

the BIA when Buckley sought late acceptance of her brief and may

well have been provided when she sought to reopen her appeal. In

- 17 - any event, the motion to reopen contained the key argument about

the IJ's failure to build a record.

Therefore, while we cannot discern the exacts point(s)

at which Buckley's counsel submitted the belated brief to the BIA,

we do know the following: Buckley's counsel failed to file a timely

brief; the BIA without explanation later refused to accept the

late-filed brief; Buckley's proceeding before the IJ appears to

have been unfair; Buckley's counsel has presented a substantial

argument material to that unfairness; Buckley's brief containing

that substantial argument was before the BIA at some point; and,

without relief, Buckley will be removed from the United States

based on a seemingly unfair proceeding. In these circumstances,

we are unable to conclude that the BIA acted within its discretion

to deny the motion to reopen.

In sum, Buckley has demonstrated that the BIA abused its

discretion in denying her motion to reopen. The BIA did not

explain how she failed to meet the Lozada requirements; there is

a reasonable probability of prejudice based on counsel's

ineffectiveness; and the BIA was on notice of Buckley's potentially

meritorious argument on appeal.

III.

For the reasons stated, we deny Buckley's petition for

review of her BIA appeal and grant Buckley's petition for review

of her motion to reopen her appeal based on ineffective assistance - 18 - of counsel. The case is remanded for further proceedings

consistent with this opinion.

So ordered.

- 19 -