Ineffective assistance of counsel
A removal order caused by a prior representative's failure can sometimes be reopened. The vehicle is a motion to reopen built on Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), which sets three procedural requirements that are not optional. The motion is due within 90 days of the final order, and in the Second and Eleventh Circuits that deadline can be equitably tolled where the failure itself is what made the motion late. These motions are hard, and this page says so.
Current as of September 2026. We re-check this page every quarter and after any rule change.
People come to us after an order with a story that is familiar: a lawyer who never filed the application, a consultant who was not a lawyer at all, a hearing nobody told them about, an appeal that was promised and never filed. The law provides a remedy for some of those stories. It is a motion to reopen, it has a deadline, it has a fee, and it has requirements that the Board enforces strictly. This page sits under after a removal order and covers only this one ground; the general rules for motions to reopen are at motions to reopen.
90 days from the final order, and one motion
Under INA 240(c)(7)(A) and (C)(i), a motion to reopen is due within 90 days of the final administrative order, and only one may be filed. After Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), a motion to the immigration judge and a motion to the Board are the same single motion, and equitable tolling does not apply to the number bar. If a prior representative already filed a motion to reopen, however thin, that fact changes the analysis and has to be disclosed at the first meeting.
The three Lozada requirements
In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the Board set out what a motion to reopen based on ineffective assistance of counsel must contain. The three requirements have been applied for nearly four decades, and a motion that skips one is routinely denied without the merits being reached.
1. Your affidavit
A sworn statement from you that sets out the agreement you had with the representative: what you hired them to do, what they said they would do, what you paid, and what they did or did not do. It is specific and chronological. It says what you were told about the hearing, the application or the appeal, and when you learned that it had not been handled.
Why it exists. The Board is being asked to reopen a final order on the basis of a private relationship it knows nothing about. The affidavit is the only evidence of what the representative was actually retained to do, and without it there is no way to tell a broken promise from a decision the client made.
2. Notice to the representative, with a chance to respond
The prior representative must be informed of the allegations and given an opportunity to respond. In practice that means a letter, sent in a way that proves delivery, that sets out what is being alleged and invites a reply, and the motion includes the letter, the proof of delivery, and any response received.
Why it exists. Fairness to the representative, whose professional conduct is being challenged in a public filing, and accuracy for the Board, which otherwise hears only one side. A response that admits the failure strengthens the motion. A response that disputes it tells the Board what is contested.
3. The complaint, or why not
The motion must state whether a complaint has been filed with the appropriate disciplinary authority, and, if not, why not. For a licensed attorney that is the state bar or grievance committee. The motion attaches the complaint, or explains the decision not to file one.
Why it exists. The requirement makes a false or exaggerated claim costly, because the person making it has to stand behind it in a forum that can investigate, and it protects the system from claims that the client and the former representative might otherwise be tempted to arrange between themselves. It also puts the conduct in front of the body that can stop it happening to the next client.
The failure has to have mattered
The Board and the courts also want to know what difference the failure made: which application was never filed, which argument was never made, which hearing was missed, and what the record suggests would have happened otherwise. A motion that shows a serious mistake but cannot say what it cost is a weak motion. The strongest motions attach the application that should have been filed, complete, so the judge can see what was lost.
Equitable tolling of the 90 days
The nature of the claim creates a timing problem. A person whose representative failed them often does not learn of it until long after the order became final, when an arrest or a letter from ICE reveals that the case was lost. By then the 90 days may be gone.
Two of the circuits where we practice have answered that problem. In Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000), the Second Circuit held that the deadline for a motion to reopen is subject to equitable tolling. In Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc), the full Eleventh Circuit held the same. Tolling is not automatic. The argument is that the representative's failure is what prevented a timely filing, and that you moved once you learned of it. Every date matters: when the order was entered, when you found out, what you did that week, and when the motion was filed. A long unexplained gap between discovery and filing is the most common reason tolling is refused.
Tolling reaches the time limit only. It does not create a second motion where one has already been used, because under M-M-L-J- equitable tolling does not apply to the number bar.
Notarios and unlicensed consultants
Much of the harm we see was done by people who were never lawyers: notarios, "immigration consultants," and offices that filled out forms for a fee and let the client believe a case was being handled. If that is what happened to you, say so. We present those claims through the same Lozada framework, with the affidavit, the notice, and a complaint to the authorities that regulate the conduct, and the documents you kept matter even more, because there is no bar record and often no written agreement. A person who held themselves out as able to handle an immigration case and did not is the subject of the motion whatever their title was.
Ineffective assistance in the criminal case is a different remedy
If the failure was by your criminal defense lawyer, who did not advise you of the immigration consequences of a plea, the remedy is in the criminal court. Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise a noncitizen defendant of those consequences. The vehicle is post-conviction relief, and a conviction vacated for that kind of defect is no longer a conviction for immigration purposes under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). See post-conviction relief.
How the motion is built
- The file. We obtain the complete record from the immigration court and, where possible, the prior representative's file. The record shows what was filed, what was not, and what the judge was told.
- The chronology. Every contact with the representative, every payment, every hearing date and every notice, in order, with the document that proves each one.
- Your affidavit, drafted from the chronology, sworn, and specific.
- The notice letter to the representative, sent with proof of delivery, and a reasonable period for a response.
- The complaint to the disciplinary authority, or the written explanation of why none was filed.
- The lost application or argument, prepared in full and attached, so the motion shows what reopening would accomplish.
- The tolling argument, if the 90 days have run, built on the dates.
- The stay request, filed with the motion, because under 8 C.F.R. 1003.23(b)(1)(v) the motion carries no stay of its own.
The government filing fee for a motion to reopen is $1,065 before an immigration judge and $1,030 before the Board, rising to $1,095 and $1,060 for motions filed on or after October 1, 2026. Those are paid to the Department of Justice through the EOIR Payment Portal and are not our legal fees. A fee waiver may be requested on a showing of inability to pay.
Keep everything
Every receipt. Every text message and WhatsApp thread. Every email. The business card. The retainer agreement, if there was one, and the notes you made if there was not. Envelopes with postmarks. Screenshots of a website or a social media page that advertised the services. The name on the door and the name on the receipt, if they differ. Bank records showing the payments. Nothing is too small, and the items that look least important, a text confirming an appointment or a receipt for a form fee, are often the ones that prove the relationship existed and what it was for.
Honest about the odds
These motions are difficult. The requirements are strict, the deadline is short, the tolling argument is fact-intensive and contested, and the Board reviews the motion knowing that every person with a final order would prefer to blame the last lawyer. A motion succeeds when it is complete, specific, prompt, and shows a real failure that cost a real chance. We take them on when the record supports that, and we say so when it does not.
Read next: motions to reopen, in absentia orders, stays of removal, or every vehicle after a removal order.
Common questions
What are the Lozada requirements?
Under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), a motion to reopen based on ineffective assistance of counsel must include (1) an affidavit from you setting out the agreement with the prior representative and what the representative did or failed to do, (2) proof that the prior representative was informed of the allegations and given an opportunity to respond, and (3) a statement whether a complaint was filed with the appropriate disciplinary authority and, if not, why not.
The 90 days have passed. Is it too late?
Not necessarily. In the Second Circuit, under Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000), and in the Eleventh Circuit, under Avila-Santoyo v. U.S. Attorney General, 713 F.3d 1357 (11th Cir. 2013) (en banc), the 90-day deadline for a motion to reopen is subject to equitable tolling. The argument is that the representative's failure is what kept you from filing in time, and that you acted once you learned of it. Tolling does not lift the one-motion limit: under Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), equitable tolling does not apply to the number bar.
My case was handled by a notario, not a lawyer. Does this apply?
Tell us, and keep everything. We present claims involving notarios and other unlicensed consultants through the same framework, with the same affidavit, the same notice, and the same complaint to the authorities that regulate the conduct, and the paperwork you kept matters even more because there is no bar record to fall back on.
Does filing the motion stop my removal?
No. Under 8 C.F.R. 1003.23(b)(1)(v), a motion to reopen does not stay execution of the order, except in in absentia cases. A stay may be requested from the immigration judge or the Board and granted in discretion, and where removal is imminent it is filed with the motion. Leaving the United States after filing withdraws the motion under 8 C.F.R. 1003.23(b)(1).
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.