Although such speculation may explain Granados-Oseguera’s inaction, there are many other possible explanations. What is missing is any evidence addressing at least the first two Lozada requirements. What agreement (if any) did Granados-Oseguera have with his attorney during the critical 30-day period for departure? Has the petitioner’s former attorney been informed of the allegation and what explanation, if any, does he have for his alleged inaction? As there is no evidence before us concerning the actual relationship (or lack thereof), there is no factual basis for Granados-Oseguera’s claim of ineffective assistance of counsel. I recognize that despite its conviction as to Granados-Oseguera’s claim, the majority refrains from ruling on the claim, and remands th 8 (5th Cir.2001) (<HOLDING>). 2 . Although I do not agree with the
holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate holding that the failure to raise a futile issue does not constitute ineffective assistance of counsel holding that the state courts rejection of the petitioners ineffective assistance of counsel claim was an unreasonable determination of the facts in light of the evidence before the state court holding that the petitioners failure to raise his ineffective assistance of counsel claim before the bia deprived the district court of jurisdiction to hear the issue