Background
Sam Morris fled civil war in Liberia and was admitted as a refugee in 2001, becoming a lawful permanent resident in 2016. He was convicted of possessing a loaded firearm in a vehicle in 2018 and again in 2023, and of embezzlement in 2024. The Department of Homeland Security placed him in removal proceedings charging deportability under 8 U.S.C. § 1227(a)(2)(C) for firearm offenses. At the removal hearing, Morris’s counsel conceded removability and applied for cancellation of removal, which an immigration judge denied. The Board of Immigration Appeals affirmed.
Morris later retained new counsel, who argued that his prior attorney was ineffective and that the Michigan firearms conviction did not constitute a removable offense under federal law. Morris filed a motion to reconsider and reopen, alleging ineffective assistance of counsel and claiming he had complied with the Lozada procedure for such claims. He attached photocopies of a letter to former counsel and a complaint form to the Michigan Attorney Grievance Commission, but did not provide postal documentation showing they were actually mailed. The Board denied both Morris’s motion to reconsider and the government’s motion to dismiss without explanation.
The Court’s Holding
The Sixth Circuit dismissed Morris’s first petition for review entirely. As to his removability argument, the court held that it was unexhausted because Morris never raised it before the immigration judge or Board of Immigration Appeals. The exhaustion requirement is strict: it requires not merely appealing but preserving each claim by presenting it to the BIA. Regarding his cancellation of removal argument, the court lacked jurisdiction to review the immigration judge’s discretionary denial under 8 U.S.C. § 1252(a)(2)(B), which bars review of “denials of discretionary relief.” Courts may review only constitutional claims or questions of law, not the ultimate discretionary choice to deny cancellation.
On Morris’s second petition challenging the Board’s denial of his motion to reconsider and reopen, the court held that Morris failed to satisfy the procedural requirements of the Lozada test for ineffective assistance claims. The Lozada procedure requires: (1) an affidavit detailing counsel’s failings, (2) proof that counsel was informed of the allegations, and (3) evidence that the petitioner filed disciplinary charges. Morris provided only photocopies of a letter and complaint form, without postal documentation or an affidavit confirming they were actually mailed. The court emphasized that “informed” and “filed” are not past participles by accident—actual filing and notice are required, not merely drafting letters. Photocopies alone, without confirmation of mailing (such as postal labels or tracking documents), do not constitute the required proof. The Board therefore did not abuse its discretion in denying the motion to reopen.
Key Takeaways
- Exhaustion of administrative remedies in immigration cases is strict and claim-specific: petitioners must present each argument to the BIA, not merely appeal to preserve claims.
- Courts lack jurisdiction to review discretionary denials of cancellation of removal under 8 U.S.C. § 1252(a)(2)(B), even if the petitioner meets all eligibility criteria.
- Lozada compliance requires actual filing of bar complaints and actual notice to former counsel, not merely drafting letters or attaching photocopies without proof of mailing.
- Attorney arguments and assertions in motions are not evidence; petitioners must provide concrete documentary proof such as postal labels or tracking documents to satisfy procedural requirements.
Why It Matters
This decision significantly clarifies and reinforces the scope of appellate review in immigration cases and the strict procedural requirements for ineffective assistance claims. By holding that the removability challenge was unexhausted and therefore unreviewable, the court emphasized that immigration practitioners cannot strategically preserve claims for appeal if they have not been raised before the Board. The ruling that Morris failed Lozada compliance based on lack of proof of actual mailing has immediate practical significance: immigration attorneys must document the actual filing and mailing of bar complaints with evidence such as postal receipts or tracking numbers, not merely photocopies of drafts or letters.
The decision also clarifies the jurisdictional bar on reviewing discretionary denials of cancellation of removal, distinguishing between challenges to “reasoned decisionmaking” on eligibility criteria (reviewable as questions of law) and challenges to the ultimate discretionary choice to deny relief (not reviewable). This distinction constrains the scope of appellate review in cancellation cases and may limit practitioners’ options for challenging unfavorable discretionary determinations by immigration judges and the Board.
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