Avitso v. Barr, No. 20-1117 (8th Cir. 2020)
Annotate this Case
Avitso, a citizen of Togo, entered the U.S. as a student in 2004 and married a U.S. citizen. In 2011, USCIS denied a Petition for Alien Relative filed by Avitso’s wife and an application for adjustment of status filed by Avitso, concluding they had entered into a fraudulent marriage to procure immigration benefits, which made Avitso removable, 8 U.S.C. 1182(a)(6)(C)(i), 1227(a)(1)(A). Notice of removal proceedings was mailed to Avitso at the address where USCIS investigators had been told he resided. In 2012, DHS mailed notice to a different address. The immigration court also mailed notice; it was returned, marked “moved left no address.” Avitso failed to appear. The IJ entered a removal order.
In 2019, remarried and represented by new counsel, Avitso moved to reopen, alleging that he “did not personally receive" notice but a copy was forwarded to him by his then-attorney. The motion cited ineffective assistance of counsel. The IJ denied the motion, concluding Avitso failed to meet case law requirements to establish ineffective assistance and even if those requirements were satisfied, the outcome would not have been different. The BIA dismissed Avitso’s appeal. The Eighth Circuit denied a petition for review. Avitso’s motion to reopen included no evidence that he notified former counsel of his ineffective assistance claims, provided her an opportunity to respond, or filed a complaint with disciplinary authorities. The BIA enforces those requirements to discourage baseless allegations and deter meritless claims.
Court Description: [Loken, Author, with Gruender and Kelly, Circuit Judges] Petition for Review - Immigration. The BIA did not abuse its discretion in denying petitioner's motion to reopen the order removing in absentia; the motion, which alleged ineffective assistance of counsel, did not substantially comply with the requirements of Matter of Lozada, 181 I.& N. Dec. 637 (BIA 1988); petitioner provided no evidence that he had notified his former counsel of his ineffective assistance claim, provided her an opportunity to respond or filed a complaint with the appropriate state disciplinary authorities. Judge Kelly, dissenting.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.