August 2009

Barton C. Winter is a Minneapolis-based lawyer who practices immigration law. He was retained in January 2007, to represent a man named Johnson Uchenna Ezeagwu, an alien who was being held by immigration authorities at an out-of-state facility pending his removal from the country. In an effort to reopen Ezeagwu’s case, Winter prepared a “ Lozada motion” alleging that Ezeagwu’s previous attorney ineffectively represented him.

The Lozada protocol is well-known to lawyer regulators. The protocol has, however, experienced some evolution over the course of the past year. Toward the end of his tenure as United States Attorney General, Michael Mukasey amended certain immigration removal procedures that had been in place since Matter of Lozada , 19 I & N Dec. 637 (BIA 1988). He issued a directive in Matter of Compean, et, al, Interim Decision No. 3632, 24 I&N Dec. 710 (A.G. January 7, 2009), that   became binding on all immigration courts and the Board of Immigration Appeals, entities overseen by the Justice Department's Executive Office for Immigration Review. The Mukasey directive had its genesis in three different removal cases. The Attorney General opined that aliens in removal proceedings had no right to counsel, including Government-appointed counsel, under either the Fifth or Sixth Amendment of the United States Constitution. Aliens did have a statutory privilege to retain private counsel at no expense to the Government. As a result of the decision, immigrants would have to demonstrate to immigration officials that that their attorney's alleged ineffectiveness was “egregious” and that the lawyer’s failings likely affected the outcome of the removal case in order for the alien to get relief from any adverse removal order. The opinion further held that, “Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer's mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.” An alien seeking to reopen a removal proceeding based on deficient performance of counsel had to submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim, and, in relevant part, to submit “ a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority (emphasis supplied).” The Mukasey edict puzzled a good number of lawyer regulators, especially as to the requirement that successor counsel for the immigrant had to provide a completed and signed complaint addressed to, but not necessarily filed with, the appropriate state bar or disciplinary authority. Many regulators wondered whether the successor lawyer was somehow duty-bound to threaten the prior lawyer with the filing of a grievance, conduct that is prohibited in some jurisdictions. Five months after the Mukasey edict, however, the substantive and procedural framework for reviewing ineffective assistance of counsel claims changed again. New Attorney General, Eric H. Holder Jr., reversed the directives of his predecessor. See generally,  NOBC Case of the Month (June 2009) at http://www.nobc.org/caseofthemonth/june_2009.aspx. Thus it appears that, as of this writing, lawyers must conform to the original Lozada guidelines.

Ezeagwu is a native of Nigeria. He originally entered the United States as a visitor for business. He married a woman named Roach, a United States citizen, 46 days after his second entry into the country. Soon after, he petitioned to have his status adjusted to that of a lawful permanent resident. After Ezeagwu traveled to Nigeria in 2004, he was granted advance parole back into the United States on the basis of his pending petition for adjustment of status. In September 2004, however, the United States Citizenship and Immigration Services notified Ezeagwu and Roach that it would deny the petition on the ground that the couple had entered into the marriage for purposes of circumventing the immigration laws. The petition was formally denied in 2005. The Department of Homeland Security (DHS) served Ezeagwu with a notice to appear, alleging that he was deportable as an alien present without a valid entry document. The notice was filed with the immigration court during March, 2005. Later, DHS notified Ezeagwu of an additional charge that he was removable as an applicant who sought to procure admission to the United States by misrepresenting a material fact, i.e., that his marriage was bona fide.

At the time that Ezeagwu hired Winter in 2007, though, the Mukasey changes had yet to be enacted. Therefore, in accord with Lozada , Winter prepared a disciplinary grievance against Ezeagwu’s former attorney but did not file it. The Lozada  motion, as drafted, however, indicated that the disciplinary complaint had been filed with the Minnesota Lawyers Professional Responsibility Board. Winter filed the Lozada  motion with the Board of Immigration Appeals and included a copy of the unfiled disciplinary complaint. Thus, when filed, the Lozada  motion contained a false statement of fact, namely that the disciplinary complaint had been filed. Winter also sent a copy of the Lozada  motion and the disciplinary complaint to Ezeagwu’s former attorney. Winter never indicated to the BIA or to the former attorney that the complaint had not been filed. After receiving the Lozada  motion and disciplinary complaint from Winter, Ezeagwu’s former attorney spent thirty hours drafting a response to the disciplinary complaint. When the former attorney contacted the Board to inquire about the status of the matter, he learned that no grievance had ever been filed. The attorney then contacted Winter to inquire about the grievance. Winter thereafter filed his complaint. The Director subsequently determined that discipline was not warranted against the first attorney. Predictably, the former attorney then filed a grievance against Winter. Based on that complaint, the Director filed a petition for disciplinary action. A referee found that Winter knew that his Lozada  motion was not factually correct at the time he filed it. Winter argued, however, that he did not intend to deceive because he always intended to file the disciplinary complaint. Winter also averred that the misstatement did not violate Rules 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d) because the statement at issue was “not material” to the underlying Lozada  motion and because the Lozada  motion had merit. The Court rejected this contention, finding that the rules have no materiality element and because Winter’s obligation to be truthful did not depend on the materiality of the statements being made. Although he agreed that his filing was “a bad move,” he sought to minimize his conduct by arguing that it was not as bad as “missing a court date or missing a briefing deadline.” The Court disagreed. Finally, the Court treated as an aggravating factor his conduct before the referee. Winter arrived at his hearing late, refused to turn off his cell phone as required by the referee, requested permission to answer his cell phone when it rang during the hearing, and left the proceeding to do so after being told he could not answer it.

Winter, who was admitted in 1996, was indefinitely suspended with no right to petition for reinstatement for a minimum of 120 days and a two-year term of supervised probation following reinstatement. The case is In re Petition for Disciplinary Action against Barton Carl Winter, 771 N.W.2d  463 (Minn. August 6, 2009).

JAMES J. GROGAN, DACC, Illinois ARDC