Background
Sam Morris, a Liberian national who fled civil war and was eventually granted lawful permanent resident (LPR) status in 2016, accumulated a significant criminal record in Michigan. He was convicted of possessing a loaded firearm in a vehicle in 2018 and again in 2023—the latter arising from an incident in which Morris fired a handgun in public, claiming self-defense, and was arrested with two handguns and a 40-round extended magazine. He was also convicted of embezzlement in 2024 for stealing approximately $1,500 from his employer. Shortly after the embezzlement conviction, DHS initiated removal proceedings, charging deportability under 8 U.S.C. § 1227(a)(2)(C) for conviction of a firearm offense.
At the removal hearing, Morris’s original counsel conceded both the factual allegations and removability, stating he had researched the issue and concluded the Michigan conviction was “categorically a firearm offense.” Morris then applied for cancellation of removal under 8 U.S.C. § 1229b(a). The Immigration Judge (IJ) denied the application on discretionary grounds, and the Board of Immigration Appeals (BIA) summarily affirmed. Morris obtained new counsel, who believed the Michigan statute might not trigger the federal firearms ground of deportability, and Morris filed a motion to reconsider and reopen alleging ineffective assistance of prior counsel. The government simultaneously moved to reopen and dismiss—without explanation—stating only that “circumstances have changed.” The BIA denied both motions, and Morris petitioned for review of the original removal order (No. 25-3084) and the BIA’s denial of the dual motions (No. 25-3893).
A Sixth Circuit panel had previously stayed Morris’s removal pending review.
The Court’s Holding
The court dismissed Morris’s first petition in its entirety. His challenge to the removability finding was unexhausted: because he never raised it before the IJ or the BIA—his original counsel affirmatively conceded it—the exhaustion rule of 8 U.S.C. § 1252(d)(1) barred the court from considering it. His challenge to the denial of cancellation of removal was separately barred by § 1252(a)(2)(B), which strips courts of jurisdiction to review discretionary relief decisions under § 1229b. The court held that Morris’s arguments targeted the IJ’s ultimate discretionary choice to deny cancellation, not a reviewable legal question about eligibility criteria, and therefore fell squarely within the jurisdictional bar.
On the second petition, the court denied Morris’s ineffective assistance claim because he failed to satisfy the Lozada procedural requirements. The BIA requires an alien claiming ineffective assistance to submit an affidavit detailing counsel’s failings, proof that prior counsel was informed of the allegations, and evidence that a disciplinary complaint was actually filed with the appropriate bar authority. Morris attached photocopies of letters and a grievance form, but provided no postal documentation or tracking records showing these were mailed, and his own affidavit did not attest to having sent them. The court confirmed that it is the actual filing and notification—not mere drafting—that satisfies Lozada, and counsel’s unsworn argument in the brief is not evidence.
As to the BIA’s denial of the government’s motion to reopen and dismiss, the court found no abuse of discretion. The BIA’s authority to grant such motions is purely regulatory and discretionary; once removal proceedings are underway, DHS does not possess unilateral authority to dissolve a final order. The government had provided no explanation of what circumstances had changed, no new evidence, and no legal basis for the dismissal. The BIA was entitled to weigh Morris’s extensive criminal history and deny the vague, unsupported motion.
Key Takeaways
- An LPR who—through counsel—concedes removability before the IJ and never challenges it on BIA appeal cannot raise a removability argument in federal court for the first time; the exhaustion rule is claim-specific and mandatory when invoked by the government.
- Challenges to the ultimate discretionary denial of cancellation of removal are jurisdictionally barred under § 1252(a)(2)(B); only challenges to non-discretionary eligibility criteria or to an agency’s reasoned decisionmaking on those criteria remain reviewable as questions of law.
- To satisfy Lozada‘s procedural requirements for an ineffective assistance claim, an alien must provide actual proof—such as postal tracking records—that the bar complaint was filed and prior counsel was notified; photocopies of draft letters without mailing documentation are insufficient.
- Once immigration proceedings have concluded and a final removal order exists, DHS does not have unilateral authority to compel the BIA to reopen and dismiss; the BIA may deny an unsupported government motion, particularly where the noncitizen’s record reflects a danger to the public.
Why It Matters
This decision reinforces the strict exhaustion and procedural discipline required in removal litigation. Attorneys who concede removability on a client’s behalf may foreclose later appellate arguments entirely, even when subsequent counsel identifies a potentially meritorious categorical-approach challenge. The case is a cautionary illustration of how a single strategic concession—here, that the Michigan firearms conviction categorically triggered § 1227(a)(2)(C)—can prove irreversible through the successive filters of exhaustion, jurisdictional bars on discretionary relief, and Lozada compliance.
The court’s handling of DHS’s motion to reopen and dismiss also has practical significance for immigration practitioners: it confirms that the BIA functions as an independent adjudicator rather than a rubber stamp for government requests to undo its own final orders. Even where the administration seeks to exercise prosecutorial discretion post-judgment, the BIA retains authority—and in cases involving significant criminal history, a clear incentive—to demand a meaningful explanation before allowing a removal order to be vacated without prejudice.