SANDRA Y. CABALLERO-COTO and ANGI M. ALEMAN-CABALLERO v. MERRICK B. GARLAND, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2022
Decided August 22, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1856
SANDRA Y. CABALLERO-COTO and
ANGI M. ALEMAN-CABALLERO,
Petitioners,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 208-173-584
No. A 208-173-585
O R D E R
Sandra Caballero-Coto, a Honduran citizen, petitions for review of the Board of
Immigration Appeal’s denial of her motion to reopen removal proceedings based on
ineffective assistance of counsel. Because the Board did not abuse its discretion in
finding that Caballero-Coto failed to meet the procedural requirements of Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), we deny the petition for review.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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I. Background
Sandra Caballero-Coto and her then seven-year-old daughter Angi, unlawfully
entered the United States near Hidalgo, Texas, in May 2015. Caballero1 sought to join
her husband who had come to the United States a year earlier. Caballero was taken into
custody and placed in expedited removal proceedings for having entered without
admission or inspection. See 8 U.S.C. § 1225(b)(1)(B)(v).
At that time, Caballero expressed a fear of returning to Honduras based on a
violent incident that occurred just outside her house. Within earshot, her brother- and
sister-in law were gunned down by a man from a local family with gang connections
and a reputation for “kill[ing] and ra[ping ] women.” When Caballero went outside to
investigate, the man pointed a gun at her and later told neighbors that he wanted to kill
her. Her fear was deemed credible by an asylum officer, and she was referred to an
Immigration Judge (IJ) for adjudication of her claim for asylum. Meanwhile, the
Department of Homeland Security served Caballero with a Notice to Appear (NTA)
charging her with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i) for not possessing
valid entry documents.
In May 2016, at a hearing before an IJ, Caballero—through her attorney Mario
Godoy—admitted the allegations in the NTA and conceded the charge of
inadmissibility. She submitted applications requesting asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). In her applications,
Caballero alleged that if she were returned to Honduras, she would be targeted by gang
members on account of her membership in two particular social groups: (1) members of
her husband’s family, and (2) witnesses to a murder. For months after the killings,
Caballero added, the man who killed her family members had asked neighbors about
her whereabouts and continued making threats against her, leading the neighbors to
warn her never to return, for her own safety.
In October 2017, the IJ denied Caballero’s applications and ordered her removed
to Honduras. The IJ explained that Caballero did not meet her burden to show
eligibility for any form of relief. The IJ found that Caballero had not demonstrated a
sufficient nexus between the threats against her and a protected ground, and she did
not establish that she had suffered past persecution or had a well-founded fear of future
1 Because Caballero-Coto refers to herself in the briefs as Caballero, so will we. Also, because
Caballero’s daughter, Angi, is a rider on Caballero’s application, our references to Caballero’s motion
refer to both their claims.

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No. 21-1856 Page 3
persecution on the basis of a protected ground. The IJ also found that Caballero had not
demonstrated a clear probability of future torture because she was not tortured in the
past, was able to relocate within Honduras to avoid harm, and did not provide evidence
showing that the Honduran government would engage in or acquiesce to her torture.
In November 2017, Godoy filed a notice of appeal, broadly challenging the denial
of relief, but noting that a separate appeal brief would be filed later. The Board ordered
that the brief be filed no later than July 17, 2018, and warned that a failure to do so
could result in a summary dismissal of the appeal. On July 12, Godoy sought and was
granted an extension of the filing deadline, until August 7. On August 6, however,
Godoy informed Caballero that he would not be submitting an appeal brief because—as
she recounted—he “did not find much case law in her favor,” she had no further legal
recourse, and she should wait for “immigration” to contact her. Caballero took no
further steps, and in October 2018, the Board summarily dismissed her appeal.
On January 30, 2019, Caballero’s newly hired counsel, Chandler Carney, filed a
motion to reopen based on Godoy’s ineffective assistance. According to the affidavit
attached to the motion to reopen, Caballero had become uneasy following Godoy’s
advice and consulted Carney about her immigration status. It was at this point, in
December 2018, that she discovered the “very tough and time-sensitive situation”
Godoy left her in. She hired Carney on January 10, 2019, to seek reopening based on
Godoy’s ineffectiveness. Carney called Godoy that same day to, as Caballero phrases it
in her motion to reopen, “inform him of the allegations.” During the call, Godoy told
Carney that he had submitted the Notice of Appeal only as a courtesy to Caballero.
Godoy also told Carney he had notified Caballero a day before the brief was due that he
would not be filing anything on her behalf. Godoy confirmed for Carney that he had
represented Caballero throughout the proceedings and—again, in Caballero’s words in
her motion to reopen— left her “without any viable option when he decided to no
longer work on the case.” Caballero filed a complaint against Godoy on January 28,
2019, with the Attorney Registration and Discipline Commission of the Supreme Court
of Illinois (ARDC).2
On April 14, 2019, the Board denied Caballero’s motion as untimely, as it was
filed more than 90 days after the Board issued its final administrative decision. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i). The Board declined to equitably toll the 90-day filing deadline
because Caballero did not exercise the requisite due diligence in filing her motion to
2 Caballero’s Request for Investigation (as the ARDC refers to these complaints) is dated January
28, 2019, but does not include proof of delivery to the ARDC.

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reopen and, further, she had not met all of the procedural requirements for pursuing
ineffective-assistance claims under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),
because there was no evidence that she adequately informed Godoy of the allegations
against him or gave him sufficient opportunity to respond to those allegations.
II. Discussion
Caballero argues that the BIA erred by denying her motion to reopen because she
was diligent and that she did meet the procedural requirements to bring a claim based
on the ineffectiveness of former counsel. We review the BIA’s denial of a motion to
reopen for abuse of discretion. See Sembhi v. Sessions, 897 F.3d 886, 891 (7th Cir. 2018).
If a motion to reopen based on ineffective assistance of counsel is filed within the
90 days permitted by statute, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i), the Board would turn
immediately to the Lozada test. Sunita Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir.
2006). But with an untimely motion, as here, the movant must first show that her
situation warrants equitable tolling of the time limit. See Mata v. Lynch, 576 U.S. 143, 146
(2015); Sunita Patel, 442 F.3d at 1016. And equitable tolling, in turn, requires a showing
of due diligence. Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017). Due diligence is
measured not by the length of the delay in seeking relief, but by “whether the claimant
could reasonably have been expected to file earlier.” Pervaiz v. Gonzales, 405 F.3d 488,
490 (7th Cir. 2005). Courts consider “whether a reasonable person in the plaintiff’s
position would have been aware of the possibility that [she] had suffered an injury.”
Sunita Patel, 442 F.3d at 1016 (internal citations omitted).
The Board identifies October 4, 2018—the date when it summarily dismissed
Caballero’s appeal—as the date when Caballero should have become aware of the
possibility that she had suffered an injury. It therefore reasons that Caballero could
reasonably have been expected to file her motion to reopen earlier than January 30,
2019.
Caballero contends that the Board erred in its equitable tolling analysis, first, by
finding that she should have been aware of her injury on or around October 4, and
second, by finding that she was not diligent in seeking relief. She argues that she did
not become aware of her injury until December 19, when she consulted with Carney
and was informed of the “very tough and time-sensitive situation” upon the dismissal
of her appeal. Caballero further contends that she acted diligently by following Godoy’s
advice while he represented her, and that she promptly hired Carney (i.e., within a
month) upon discovering the situation she was in.

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It was unreasonable for the BIA to expect Caballero to seek reopening earlier
than she did. We have recognized that a petitioner who does not speak English and is
unfamiliar with the immigration process may have “more than the average difficulty in
negotiating the shoals of American law.” See Gaberov v. Mukasey, 516 F.3d 590, 596–97
(2008) (seven-month delay to find another lawyer and allow them to investigate was
reasonable); Pervaiz, 405 F.3d at 491 (nine-month delay may be reasonable for certain
non-citizens to find a new lawyer and allow them to research). The record reflects that
Caballero spoke no English and was unfamiliar with the immigration process, so taking
one month to hire a new lawyer to pursue a claim of ineffective assistance does not
strike us as inexcusably long. Caballero’s first meeting with Carney was on December
19, right before a period when many offices and businesses close in favor of holiday
observances, making the delay until January 10 to hire Carney, and then until January
30 to file a motion to reopen, a reasonable one. Further, Caballero’s delay in seeking out
a new lawyer stemmed from Godoy’s advice to await word from immigration officials.
As we wrote in Sunita Patel, equitable tolling is the first hurdle that must be overcome
to succeed on an untimely motion to reopen. The equitable tolling analysis should be
fully and adequately addressed before the Board reaches the question whether the
procedural requirements of Lozada have been met.
But even if Caballero were diligent in pursuing her claims, she still must comply
with the procedural requirements of Lozada to succeed on her motion to reopen. Under
Lozada, a petitioner who seeks reopening based on ineffective assistance of counsel must
comply with three procedural requirements:
(1) submit[ing] an affidavit establishing that she had an agreement with counsel
to represent her and detailing its terms; (2) present[ing] evidence that she has
given notice to her counsel of the ineffectiveness claim and an opportunity to
respond to the allegations, and include any response she has received; and (3) if
the attorney violated his ethical or legal obligations, show[ing] that she has filed a
complaint with the governing disciplinary authorities or explain[ing] why she has
not done so.
Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011) (citing Lozada, 19 I. & N. Dec. at 639).
Satisfying the Lozada requirements is a necessary condition to reopen a case based on
ineffective assistance of counsel, id. at 755, and thus the failure to meet any one of the
requirements is a sufficient reason for the Board to deny reopening. Shehzad Patel v.
Gonzales, 496 F.3d 829, 833 (7th Cir. 2007). Here, the Board concluded that Caballero did
not meet Lozada’s second requirement because she failed to adequately notify Godoy.

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Our court has stated that the notification requirement requires a petitioner to
“show” or “present evidence” that she has notified counsel. Marinov v. Holder, 687 F.3d
365, 368 (7th Cir. 2012); Shehzad Patel, 496 F.3d at 833. This requirement “reduce[s] the
potential for abuse,” Id. at 831, and helps “establish that a charge of ineffectiveness has
enough substance to warrant the time and effort that will be required to resolve the
claim on its merits,” Sembhi, 897 F.3d at 892. But we have not explicitly stated the form
in which a petitioner must submit evidence of notification to satisfy Lozada’s second
requirement.
We think that the most useful way to submit evidence of notification is a sworn
document describing the time and manner of notification, corroborated by appropriate
evidence. See, e.g., Alvarez-Espino v. Barr, 959 F.3d 813, 816–17 (7th Cir. 2020) (letter to
lawyer alleging ineffective assistance and lawyer’s response sufficient to meet
notification requirement); Sembhi, 897 F.3d at 893 (affidavits that were silent as to notice
were insufficient as to two attorneys, but attorney’s response to ARDC charge was
sufficient to demonstrate at least some notice for that attorney); Shehzad Patel, 496 F.3d
at 831 (petitioner’s affidavits insufficient because they did not state that petitioner
expressed dissatisfaction with representation or informed attorneys of plan to file
motion to reopen based on allegedly deficient performance).
Caballero failed to submit evidence—in the form of documentation from herself
or Carney—to show that Godoy was apprised of her plans to seek reopening based on
his ineffective assistance. Caballero relies on an unsworn typewritten note from Carney
purporting to describe a call between Carney and Godoy. Cabellero’s motion to reopen
stated that the purpose of the call was to inform Godoy of her allegations, and although
she expanded on the details of that call within her motion to reopen, representations in
motions are insufficient as evidence. See Shehzad Patel, 496 F.3d at 832–33
(representations by counsel do not constitute evidence); Sembhi v. Sessions, 897 F.3d 886,
893 (2018) (representations in a brief do not constitute evidence of compliance with
Lozada requirements). If the call did involve discussion of ineffective assistance or the
impending motion to reopen, we cannot know because Carney’s sparse unsworn note
does not suggest that Carney informed Godoy of Caballero’s dissatisfaction with his
representation or her intent to file a motion to reopen based on ineffective assistance.
That Godoy did not deny that he left Caballero without options does not indicate any
awareness on his part that Caballero found his prior representation lacking.
Lastly, we note that the complaint Caballero filed with the ARDC is insufficient
for notification purposes. Lozada requires that the former counsel be appropriately

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notified of the allegations and given an opportunity to respond. 19 I. & N. at 639. Even
if filing a complaint with the relevant disciplinary authority could in some
circumstances satisfy both the second and third Lozada requirements, it cannot do so
here where Caballero’s former counsel did not have an adequate opportunity to
respond to the charge. See Marinov, 687 F.3d at 368–69 (rejecting argument that filing of
ARDC complaint satisfied Lozada’s notification requirement). But see Sembhi, 897 F.3d
at 893 (where petitioner submitted proof that former counsel filed a response to the
ARDC charge filed against her, counsel had at least some notice). Caballero allegedly
filed her disciplinary complaint only three days before filing her motion to reopen; she
did not offer evidence that she filed the complaint with the ARDC, and even if she did,
three days would not be enough time for Godoy to have been notified of the complaint
and give a response. The Board was correct to conclude that Godoy was not adequately
notified or given an opportunity to respond.
III. Conclusion
Because the BIA did not abuse its discretion in concluding that Caballero failed
to meet the notification requirement of Lozada, we deny the petition for review.

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