October 29, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 93-1569

                      EMERSON PIMENTEL,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                        

              ON PETITION FOR REVIEW OF AN ORDER
             OF THE BOARD OF IMMIGRATION APPEALS

                                        

                            Before

                     Breyer, Chief Judge,
                                        
                     Torruella and Selya,
                       Circuit Judges.
                                     

                                        

   Peter A. Allen on Motion to Hold Case in Abeyance.
                 
   Stuart  E.  Schiffer,  Acting  Assistant  Attorney  General,
                       
Robert  Kendall,  Assistant  Director,  and  Charles   E.  Pazar,
                                                              
Attorney,  Office  of  Immigration  Litigation,  on    Motion  to
Dissolve Automatic Stay of Deportation.

                                        

                                        

          Per  Curiam.  Petitioner seeks review of the May 6,
                     

1993 order of the Board  of Immigration Appeals (BIA) denying

petitioner's motion to reopen deportation proceedings so that

petitioner   might  apply   for  discretionary   relief  from

deportation.   We  summarily  affirm the  May 6,  1993 order,

grant  the INS's  motion to  dissolve the  automatic  stay of

deportation, and  deny petitioner's motion to  hold appellate

proceedings in abeyance.

                              I

     Petitioner  was  ordered  deported  after  he failed  to

appear  at  a  deportation hearing  or  present  any defense.

Petitioner promptly  appealed to the BIA and  moved to reopen

the deportation  proceedings so  that petitioner might  apply

for discretionary  relief  from  deportation.    Petitioner's

motion to reopen,  filed by his first counsel, indicated that

petitioner had not received notice of the deportation hearing

because  INS correspondence  had been  sent to an  address at

which petitioner "was not residing at the time of delivery."

     The BIA dismissed  the appeal and denied reopening.   In

so doing, it  pointed out that petitioner's  motion to reopen

had  not  been  accompanied  by  affidavits  and  evidentiary

material  as required  by  8  C.F.R.    3.8(a)  and that  the

address petitioner had stated in his notice of appeal was the

very address to which INS correspondence had been sent.

                             -2-

     Petitioner, represented  by new counsel,  promptly moved

to  reopen  once again,  this  time  filing affidavits.    He

claimed he had never told  his first counsel that he did  not

live  at the  address to  which INS  correspondence had  been

sent;   he  simply  had  not  received   any  notice  of  the

deportation hearing.  Petitioner's mother stated by affidavit

that she had the only key to the residence's mailbox and she,

too,  had not  received notice  of  the deportation  hearing.

Petitioner argued he  should not be  penalized for his  first

counsel's failings.

     Concluding  that petitioner  had  not complied  with the

requirements set forth in Matter of Lozada, 19 I &amp; N Dec. 637
                                          

(BIA  1988),  for  seeking  reopening based  on  a  claim  of

ineffective   assistance   of   counsel,   the   BIA   denied

petitioner's motion to reopen.  Petitioner now seeks judicial

review of that decision.

                              II

     In Matter of Lozada, 19 I &amp; N Dec. 637 (BIA 1988), where
                        

an  appeal  from  a  deportation  order  had  been  summarily

dismissed because no brief had  been filed, the BIA announced

a  "high standard"  for motions  seeking  reopening based  on

claims of ineffective assistance of counsel:

     A  motion  based   upon  a  claim  of   ineffective
     assistance  of counsel  should be  supported  by an
     affidavit  of  the allegedly  aggrieved  respondent
     attesting  to  the  relevant facts.    In  the case
     before   us,  that   affidavit  should   include  a
     statement that  sets forth in detail  the agreement

                             -3-

     that  was entered  into  with  former counsel  with
     respect to the  actions to be  taken on appeal  and
     what  counsel did  or  did  not  represent  to  the
     respondent  in this  regard.   Furthermore,  before
     allegations  of  ineffective assistance  of  former
     counsel are presented to  the Board, former counsel
     must be informed of the allegations and allowed the
     opportunity to  respond.   Any subsequent  response
     from counsel,  or report  of  counsel's failure  or
     refusal to respond,  should be  submitted with  the
     motion.   Finally,  if it  is  asserted that  prior
     counsel's handling of the case involved a violation
     of  ethical or  legal responsibilities,  the motion
     should reflect  whether a complaint  has been filed
     with appropriate disciplinary authorities regarding
     such representation, and if not, why not.

          The high standard announced here is  necessary
     if we  are  to  have  a  basis  for  assessing  the
     substantial  number  of  claims   of    ineffective
     assistance of  counsel that come  before the Board.
     Where  essential  information  is  lacking,  it  is
     impossible to evaluate the substance of such claim.
     In the instant  case, for  example, the  respondent
     has not alleged, let alone established, that former
     counsel ever agreed to prepare a  brief on appeal .
     . ..  The requirement that disciplinary authorities
     be notified of breaches of professional conduct not
     only   serves   to   deter   meritless  claims   of
     ineffective representation but  also highlights the
     standards which should be expected of attorneys who
     represent persons in immigration proceedings . . ..

     The  BIA  concluded  petitioner had  not  complied  with

Lozada as petitioner had not detailed his agreement  with his
      

first counsel, had  not shown whether  he had notified  first

counsel of  his charges, and  had failed to state  whether he

had filed a disciplinary complaint.

     The   BIA  did  not  abuse  its  discretion  in  denying

petitioner's motion to reopen.  First, petitioner's affidavit

was very  sketchy in  describing his  arrangement with  first

counsel.   Petitioner stated that within a  week of receiving

                             -4-

an order to show cause why he should not be deported,  he had

contacted counsel, whom, petitioner claimed "had already been

paid  for this  case"; counsel  had  said not  to worry;  and

petitioner  "was under  the  impression" that  counsel  would

enter an appearance.  After  receiving a copy of the decision

ordering deportation, petitioner had again contacted counsel.

Counsel had again  told petitioner not to worry  and that "he

would get  me my United States citizenship." One of counsel's

employees then helped petitioner file a notice of appeal, and

petitioner paid the employee $620.  

     The BIA  could reasonably conclude  that petitioner  had

not  sufficiently  detailed   his  agreement  with   counsel.

Petitioner  asserted that  counsel had  been  paid for  "this

case,"  yet petitioner was  only "under the  impression" that

counsel  would  file  an appearance.    Petitioner  failed to

detail what counsel actually agreed to do with respect to the

deportation proceedings. 

     Second, petitioner  failed timely  to show  that he  had

notified first counsel of his  allegations against him.  In a

supplement to  his motion  to reopen,  petitioner claimed  to

have  notified counsel  by letter and  purported to  attach a

copy  of the letter,  but failed to  do so.   Even though the

BIA's  May 6,  1993 order  put  petitioner on  notice of  the

letter's omission,  petitioner  apparently did  not submit  a

copy until  over three  months later with  the filing  of his

                             -5-

third  motion to reopen.   Such piecemeal  presentation, with

its potential for  an unwarrantable delay of  deportation, is

what Lozada's "high standard" is aimed at preventing.
             

     Third,  petitioner refused to state whether he had filed

disciplinary proceedings  against his  counsel.   He  claimed

that   "Supreme  Court   Rule   No.   4221,   regarding   the

confidentiality of  Disciplinary Complaints" barred  him from

saying whether  a complaint had  been filed.   Petitioner did

not attach a copy of the rule from which the BIA could make a

determination   whether   petitioner's   interpretation   was

warranted.1 

     In  view of  the motion's  deficiencies,  the BIA  acted

within its discretion in denying reopening.

                             III

     Petitioner asks  that we  hold appellate  proceedings in

abeyance until the  BIA acts on a third  motion for reopening

petitioner  filed through  a third  counsel  in August  1993.

Because  of     1105a's  automatic  stay,  holding  appellate

proceedings  in  abeyance  would  be  tantamount  to  staying

deportation  pending  determination   of  petitioner's  third

motion to reopen. After reviewing the motion and the relevant

                    

1.  Petitioner has apparently abandoned his interpretation of
the Rhode Island rule, for in his third  motion to reopen, he
indicates  he filed a complaint against first counsel in late
July,  almost  two months  after  the BIA  denied  the second
motion  to  reopen.    The  disciplinary  complaint  is  very
sketchy.

                             -6-

considerations, see  Berroteran-Melendez v. I.N.S.,  955 F.2d
                                                  

1251,  1255 (9th  Cir.  1992), we  decline  to stay  judicial

proceedings.    We note that petitioner has  requested a stay

of deportation  from the BIA, and we think  the BIA is in the

best position to assess whether such relief is warranted.

     The May 6,  1993 order denying reopening is affirmed and

the I.N.S.'s motion to lift the automatic stay is granted. 

                             -7-
