Background
Melvin Valencia, a native of El Salvador who entered the United States unlawfully in 2003, was convicted in 2018 of attempted murder and related felonies. While imprisoned, Immigration and Customs Enforcement initiated removal proceedings. Valencia filed an application for deferral of removal under the Convention Against Torture, claiming he feared MS-13 gang violence if returned to El Salvador. An immigration judge found credibility problems in Valencia’s testimony and his mother’s testimony, citing inconsistencies, and ordered his removal effective January 8, 2021.
Valencia’s attorney, John Peng, mailed a fee waiver request form on an unspecified date in December 2020 so Valencia could afford the appeal filing fee. Valencia signed and returned the form on December 28, 2020—one week after his removal hearing—but Peng did not receive it until January 11, 2021, three days after the appeal deadline. Peng then filed the notice of appeal and a motion to accept a late appeal. The Board of Immigration Appeals rejected the motion as untimely in February 2021, finding insufficient explanation for the delay, and Valencia was deported.
Valencia subsequently reentered the United States and was convicted in federal court of illegal reentry under 8 U.S.C. § 1326. He moved to dismiss, arguing his deportation order was invalid because his attorney’s failure to timely appeal constituted ineffective assistance of counsel.
The Court’s Holding
The Fourth Circuit affirmed the district court’s denial of Valencia’s motion to dismiss. To collaterally attack a removal order underlying an illegal reentry charge, 8 U.S.C. § 1326(d) requires three elements: (1) exhaustion of all available administrative remedies; (2) that the deportation proceedings improperly deprived the noncitizen of judicial review; and (3) that the order’s entry was fundamentally unfair. Failure on any single element is fatal to the collateral challenge. The court found Valencia failed the exhaustion requirement.
Although Valencia’s initial appeal was untimely due to his counsel’s actions, a motion to reopen before the Board was an available administrative remedy through which he could have asserted an ineffective assistance claim. Valencia never filed such a motion. More fundamentally, Valencia was required to present his ineffective assistance claim to the Board itself in compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Lozada requires: (1) an affidavit describing the noncitizen’s agreement with counsel; (2) notice to counsel with an opportunity to respond; and (3) disclosure of whether a complaint was filed with disciplinary authorities. Valencia’s motion to accept a late appeal did not substantially comply with these requirements—it lacked an affidavit from Valencia, made no reference to disciplinary complaints, and did not expressly assert an ineffective assistance claim. Peng’s affidavit merely stated his “inability” caused the delay but did not characterize that as ineffective assistance. The Board therefore was never on proper notice that an ineffective assistance claim was being raised and could not assess whether the claim was legitimate or frivolous.
Key Takeaways
- Noncitizens collaterally attacking removal orders in illegal reentry prosecutions must exhaust administrative remedies before raising claims in federal court, and failure on exhaustion is fatal regardless of other deficiencies in the proceeding.
- Ineffective assistance of counsel claims arising from immigration proceedings must be formally presented to the Board of Immigration Appeals in compliance with Lozada requirements—the mere fact that counsel was incompetent does not excuse the requirement to present the claim administratively first.
- Substantial compliance with Lozada requires at minimum an affidavit from the noncitizen describing the relationship with counsel, notice to counsel, and disclosure regarding disciplinary complaints; vague references to counsel’s “inability” in an affidavit filed by counsel do not satisfy this standard.
Why It Matters
This decision reinforces a strict administrative exhaustion requirement for noncitizens seeking to challenge removal orders in criminal reentry prosecutions. The holding creates a catch-22-like burden: even when a noncitizen’s administrative remedies are rendered unavailable or compromised by ineffective counsel, the claim of ineffective assistance itself must navigate the administrative process before reaching federal court. Courts will not excuse an exhaustion failure based on counsel incompetence without the noncitizen first raising that claim through proper administrative channels.
The decision has practical significance for criminal defense practitioners handling reentry cases, as it establishes that vague or implicit references to counsel’s incompetence in supporting affidavits will not suffice. Immigration counsel faced with untimely filings must explicitly characterize the problem as ineffective assistance and comply fully with Lozada’s requirements. The case also clarifies that filing a motion to accept a late appeal, though facially related to the ineffective assistance claim, does not itself constitute a properly exhausted ineffective assistance claim for collateral attack purposes.