[Federal Register Volume 81, Number 145 (Thursday, July 28, 2016)]
[Proposed Rules]
[Pages 49556-49572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17540]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 /
Proposed Rules
[[Page 49556]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208
[EOIR Docket No. 170P; AG Order No. 3706-2016]
RIN 1125-AA68
Motions To Reopen Removal, Deportation, or Exclusion Proceedings
Based Upon a Claim of Ineffective Assistance of Counsel
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is proposing to amend
the regulations of the Executive Office for Immigration Review (EOIR)
by establishing procedures for the filing and adjudication of motions
to reopen removal, deportation, and exclusion proceedings based upon a
claim of ineffective assistance of counsel. This proposed rule is in
response to Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G.
2009), in which the Attorney General directed EOIR to develop such
regulations. The Department also proposes to amend the EOIR regulations
that provide that ineffective assistance of counsel may constitute
extraordinary circumstances that may excuse the failure to file an
asylum application within 1 year after the date of arrival in the
United States.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before September 26, 2016.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 170P,
by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. Commenters should be
aware that the electronic Federal Docket Management System will not
accept comments after midnight Eastern Time on the last day of the
comment period.
Mail: Jean King, General Counsel, Office of the General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 170P on your correspondence. This mailing
address may also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Jean King, General Counsel, Office
of the General Counsel, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041. Contact Telephone
Number (703) 305-0470.
FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Office of
the General Counsel, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0470 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Department also invites comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
rule, explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
All submissions received should include the agency name and EOIR
Docket No. 170P for this rulemaking. Please note that all comments
received are considered part of the public record and made available
for public inspection at http://www.regulations.gov. Such information
includes personal identifying information (such as your name, address,
etc.) voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information and confidential business
information identified as set forth above will be placed in the
agency's public docket file, but not posted online. To inspect the
agency's public docket file in person, you must make an appointment
with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT
section above for agency counsel's contact information.
The reason that EOIR is requesting electronic comments before
midnight Eastern Time on the day the comment period closes is because
the inter-agency Regulations.gov/Federal Docket Management System
(FDMS), which receives electronic comments, terminates the public's
ability to submit comments at midnight on the day the comment period
closes. Commenters in time zones other than Eastern may want to take
this fact into account so that their electronic comments can be
received. The constraints imposed by the Regulations.gov/FDMS system do
not apply to U.S. postal comments, which will be considered as timely
filed if they are postmarked before midnight on the day the comment
period closes.
II. Executive Summary
This proposed rule would establish standards for adjudicating
motions to reopen based on ineffective assistance of counsel in
immigration proceedings before the immigration judges and the Board of
Immigration Appeals (Board or BIA). The Board has addressed reopening
proceedings based on ineffective assistance of counsel in Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec.
553 (BIA 2003). In Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec.
710 (A.G. 2009) (Compean I),
[[Page 49557]]
Attorney General Mukasey overturned, in part, the Board's decisions in
Matter of Lozada and Matter of Assaad, and provided a new
administrative framework for adjudicating motions to reopen based on
ineffective assistance of counsel. However, in Matter of Compean,
Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) (Compean II), Attorney
General Holder vacated Compean I, and directed EOIR to develop a
proposed rule pertaining to such motions. Accordingly, the Department
of Justice (Department) has drafted this proposed rule.
Under this proposed rule, an individual seeking to reopen his or
her immigration proceedings would have to establish that the individual
was subject to ineffective assistance of counsel and that, with limited
exceptions, he or she suffered prejudice as a result. The proposed rule
would provide guidelines for determining when counsel's conduct was
ineffective, and when an individual suffered prejudice. Under the
proposed rule, a motion to reopen based on ineffective assistance of
counsel would be required to include: (1) An affidavit, or a written
statement executed under the penalty of perjury, providing certain
information; (2) a copy of any applicable representation agreement; (3)
evidence that prior counsel was notified of the allegations and of the
filing of the motion; and (4) evidence that a complaint was filed with
the appropriate disciplinary authorities. The proposed rule would
permit adjudicators, in exercises of discretion committed exclusively
to EOIR, to excuse noncompliance with these requirements in limited
circumstances. The proposed rule would also provide that deadlines for
motions to reopen can be equitably tolled in certain instances where
the motion is based on ineffective assistance of counsel.
The Department believes that this proposed rule would promote
consistency in the reopening of EOIR proceedings based on ineffective
assistance of counsel, thereby helping to ensure the integrity and
fairness of those proceedings. Given the importance of the issues
involved, the Department believes it is important for the public to be
able to participate in formulating the framework for reopening
proceedings based on ineffective assistance of counsel.
III. Analysis of the Motion To Reopen Provisions in Proposed Sec.
1003.48
The Immigration and Nationality Act (``Act'' or ``INA'') provides
the Attorney General with extensive authority relating to proceedings
before the immigration courts and the Board. The Act provides the
Attorney General with the authority to promulgate regulations governing
such proceedings. See INA 103(g)(2). The Act further provides the
Attorney General with the broad authority to reopen proceedings and
recognizes her existing authority in this area. See INA 240(c)(7)
(permitting a motion to reopen within 90 days of the date on which a
final administrative order of removal is entered); INA 240(b)(5)(C)
(granting an alien 180 days to seek reopening in order to rescind a
removal order entered in absentia, and providing no time limit where
the alien did not receive notice of the immigration hearing or was in
custody and the failure to appear was through no fault of the
alien).\1\ The Supreme Court also has long recognized the broad
discretion accorded the Attorney General to grant or deny motions to
reopen proceedings. See INS v. Doherty, 502 U.S. 314, 323 (1992) (``The
granting of a motion to reopen is thus discretionary, and the Attorney
General has `broad discretion' to grant or deny such motions.'')
(internal citation omitted); accord INS v. Abudu, 485 U.S. 94, 105-06
(1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Matter of Coelho,
20 I&N Dec. 464, 471-72 (BIA 1992).\2\ Under the delegated authority of
the Attorney General, the Board has consistently permitted the
reopening of immigration proceedings based upon a claim of ineffective
assistance of counsel. See Matter of Assaad, 23 I&N Dec. at 558; Matter
of Lozada, 19 I&N Dec. at 639-40. The Department believes that, in
appropriate cases, reopening immigration proceedings based upon a claim
of ineffective assistance of counsel continues to be a permissible
exercise of the Attorney General's broad discretion.
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\1\ The Act's provisions relating to motions to reopen took
effect in 1997. Motions to reopen immigration proceedings had
previously been permitted by regulation. See generally Dada v.
Mukasey, 554 U.S. 1, 12-15 (2008).
\2\ The Act imposes requirements that must be met for a motion
to reopen to be granted. See, e.g., INA 240(c)(7)(B) (``The motion
to reopen shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by
affidavits or other evidentiary material.''). The Act's implementing
regulations elaborate on these requirements. See 8 CFR 1003.23(b)(3)
(``A motion to reopen will not be granted unless the Immigration
Judge is satisfied that evidence sought to be offered is material
and was not available and could not have been discovered or
presented at the former hearing.''); 8 CFR 1003.2(c)(1) (``A motion
to reopen proceedings shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing[.]''); cf. 8 CFR 1003.23(b)(1) (``An Immigration
Judge may upon his or her own motion at any time, or upon motion of
the Service or the alien, reopen or reconsider any case in which he
or she has made a decision, unless jurisdiction is vested with the
Board of Immigration Appeals.''); 8 CFR 1003.2(a) (``The Board may
at any time reopen or reconsider on its own motion any case in which
it has rendered a decision.''); Matter of J-J-, 21 I&N Dec. 976, 984
(BIA 1997) (``Notwithstanding the statutorily mandated restrictions,
the Board retains limited discretionary powers under the regulations
to reopen or reconsider cases on our own motion. . . . The power to
reopen on our own motion is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.'') (internal citation
omitted).
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Immigration proceedings are civil proceedings with high stakes,
including the potential removal from the United States of an individual
with long-standing family or other ties, or the grant or denial of
relief or protection to an individual who claims to fear harm in his or
her native country. See, e.g., Aris v. Mukasey, 517 F.3d 595, 600 (2d
Cir. 2008); Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir.
2007). Considering the serious consequences that may result from
immigration proceedings, the Attorney General believes that it is
paramount to ensure the integrity and fairness of such proceedings. The
Attorney General therefore proposes to exercise her authority and
discretion to regulate the administrative process of immigration
proceedings before the immigration courts and the Board by codifying an
administrative remedy for individuals who were in removal, deportation,
or exclusion proceedings before EOIR and were subject to ineffective
assistance of counsel.\3\
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\3\ The Department notes that there is currently a split among
the circuits regarding whether there is a constitutionally-based
right to effective counsel in immigration proceedings. Compare,
e.g., Lin Xing Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011)
(``No statute or constitutional provision entitles an alien who has
been denied effective assistance of counsel to reopen the
proceedings on the basis of that denial. This Circuit has
recognized, nevertheless, that the denial of effective assistance of
counsel may under certain circumstances violate the due process
guarantee of the Fifth Amendment.'') (brackets, ellipsis, and
internal quotation marks and citation omitted); Fadiga v. Att'y
Gen., 488 F.3d 142, 155 (3d Cir. 2007) (``A claim of ineffective
assistance of counsel in removal proceedings is cognizable under the
Fifth Amendment--i.e., as a violation of that amendment's guarantee
of due process.''), Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.
2007) (``While aliens in deportation proceedings do not enjoy a
Sixth Amendment right to counsel, they have due process rights in
deportation proceedings.''), and Tang v. Ashcroft, 354 F.3d 1192,
1196 (10th Cir. 2003) (``While an alien does not have a right to
appointed counsel, he does have a Fifth Amendment right to a
fundamentally fair proceeding.''), with Rafiyev v. Mukasey, 536 F.3d
853, 861 (8th Cir. 2008) (``[W]e hold that there is no
constitutional right under the Fifth Amendment to effective
assistance of counsel in a removal proceeding.''). It is beyond the
scope of this proposed rule to address whether there is a
constitutionally-based right to effective assistance of counsel in
immigration proceedings. Rather, this rule is limited to providing
an administrative remedy under appropriate circumstances based on
the Attorney General's statutory authority and discretion. We note,
however, that Attorney General Holder's order in Compean II, 25 I&N
Dec. at 3, provided that nothing in that order would affect the
litigating positions of the Department, and the Department has
consistently argued before the Supreme Court that there is no
constitutional right to effective assistance of counsel in
immigration proceedings. E.g., Brief for Respondent on Petition for
a Writ of Certiorari at 14 n.3, Mata v. Holder, 135 S. Ct. 1039
(2015) (No. 14-185). Nothing in the proposed regulations affects
this position.
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[[Page 49558]]
The proposed rule would establish procedures and substantive
requirements for the filing and adjudication of motions to reopen
removal, deportation, and exclusion proceedings before the immigration
judges and the Board based upon a claim of ineffective assistance of
counsel. The rule would build on procedures, established in Matter of
Lozada and Matter of Assaad, governing motions to reopen based upon a
claim of ineffective assistance of counsel.
Matter of Lozada, decided by the Board in 1988, established a
three-step procedure for individuals moving to reopen their deportation
proceedings--which are now known as removal proceedings--based upon a
claim of ineffective assistance of counsel. These three steps are
commonly referred to as the Lozada requirements or Lozada factors, and
they provide a ``basis for assessing the substantial number of claims
of ineffective assistance of counsel that come before the Board.''
Matter of Lozada, 19 I&N Dec. at 639. First, ``[a] motion based upon a
claim of ineffective assistance of counsel should be supported by an
affidavit attesting to the relevant facts,'' including ``a statement
that sets forth in detail the agreement that was entered into with
former counsel with respect to the actions to be taken [in the relevant
proceeding] and what counsel did or did not represent to the
[individual] in this regard.'' Id. Second, ``former counsel must be
informed of the allegations and allowed the opportunity to respond,''
and that response (or lack thereof) should accompany the motion. Id.
Third, ``the motion should reflect whether a complaint has been filed
with the appropriate disciplinary authorities regarding such
representation, and if not, why not.'' Id.
In Matter of Lozada, the Board also noted specifically that
``[l]itigants are generally bound by the conduct of their attorneys,
absent egregious circumstances.'' Id. (citing LeBlanc v. INS, 715 F.2d
685 (1st Cir. 1983)); see also Matter of B-B-, 22 I&N Dec. 309, 310-11
(BIA 1998). In denying the ineffective assistance claim in Matter of
Lozada, the Board noted that ``[n]o such egregious circumstances have
been established in this case.'' Matter of Lozada, 19 I&N Dec. at 639.
The Board also required, in Matter of Lozada, that the individual
filing the motion establish prejudice. See id. at 638, 640. The Board
did not set forth a specific standard for prejudice, but simply noted
that ``no prejudice was shown to have resulted from prior counsel's''
conduct in that case. Id. at 640.
For over 20 years since the Board's decision, Matter of Lozada has
provided a workable administrative framework for adjudicating
ineffective assistance claims in what are now known as removal
proceedings. Thus, Matter of Lozada serves as a solid starting point
for setting up a framework for this proposed rule. This framework
affords relief to an individual in removal, deportation, or exclusion
proceedings harmed by his or her attorney's ineffectiveness and at the
same time takes into consideration countervailing concerns regarding
abuse of the legal process and delay of immigration proceedings.
The Federal courts of appeals have generally endorsed the Lozada
requirements. In doing so, courts have recognized the important policy
considerations those requirements embody. See, e.g., Beltre-Veloz v.
Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (``[The Matter of Lozada]
framework . . . is designed to screen out frivolous, stale, and
collusive claims.''); Patel v. Gonzales, 496 F.3d 829, 831-32 (7th Cir.
2007) (``The Lozada requirements reduce the potential for abuse by
providing information from which the BIA can assess whether an
ineffective assistance claim has enough substance to warrant the time
and resources necessary to resolve the claim on its merits.''); Reyes
v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) (``We presume, as a
general rule, that the Board does not abuse its discretion when it
obligates [individuals] to satisfy Lozada's literal requirements.'');
Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) (suggesting
that Matter of Lozada provides ``fair and efficacious techniques for
screening out, ab initio, the numerous groundless and dilatory claims
routinely submitted in these cases.''); Lo v. Ashcroft, 341 F.3d 934,
937 (9th Cir. 2003) (``. . . Lozada's policy goals . . . are to provide
a framework within which to assess the bona fides of the substantial
number of ineffective assistance claims asserted, to discourage
baseless allegations and meritless claims, and to hold attorneys to
appropriate standards of performance.'').
While the Federal courts of appeals have generally endorsed the
Lozada requirements, several courts have adopted varying
interpretations for determining compliance with the Lozada
requirements, establishing prejudice, and applying equitable tolling to
the filing deadlines for motions to reopen based upon a claim of
ineffective assistance of counsel. As discussed below, the courts of
appeals have differed on what circumstances, if any, may excuse
noncompliance with the Lozada requirements. For example, some courts
have been flexible in applying the Lozada requirements where, in the
court's view, strict compliance is not necessary to achieve the
requirements' purpose. See, e.g., Morales Apolinar v. Mukasey, 514 F.3d
893, 896 (9th Cir. 2008) (``In practice, we have been flexible in our
application of the Lozada requirements. The Lozada factors are not
rigidly applied, especially where their purpose is fully served by
other means.''); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir.
2001) (concluding that the Lozada requirements are ``a reasonable
exercise of the Board's discretion,'' id. at 132, but stressing ``that
the failure to file a [bar] complaint is not fatal if a petitioner
provides a reasonable explanation for his or her decision,'' id. at
134) (emphasis in original); cf. Patel, 496 F.3d at 831 (holding that
``[t]he BIA is free to deny motions to reopen for failure to comply
with Lozada as long as it does not act arbitrarily''). One court has
found that there are circumstances where compliance with the
requirements is unnecessary. See, e.g., Escobar-Grijalva v. INS, 206
F.3d 1331, 1335 (9th Cir. 2000) (finding that there is no need to
comply with Matter of Lozada where the record establishes on its face
ineffective assistance of counsel).
The Federal courts of appeals have also proposed varying standards
for prejudice. Some courts have required a strict standard for
evaluating prejudice. See, e.g., Sako v. Gonzales, 434 F.3d 857, 864
(6th Cir. 2006) (requiring the individual filing the motion to
``establish that, but for the ineffective assistance of counsel, he
would have been entitled to continue residing in the United States'').
Other courts have applied a standard similar to that established by
Strickland v. Washington, 466 U.S. 668, 694 (1984), which held that
prejudice exists when there is a ``reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.'' See, e.g., Fadiga v. Att'y Gen., 488 F.3d 142,
158-59 (3d Cir.
[[Page 49559]]
2007) (agreeing that Strickland's ``reasonable probability'' standard
is appropriate in the context of removal proceedings); Obleshchenko v.
Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004) (characterizing the court's
prejudice standard as ``akin'' to the Strickland test).
In addition, while the courts of appeals that have reached the
issue have permitted the equitable tolling of filing deadlines for
untimely motions to reopen based upon claims of ineffective assistance
of counsel, some courts have not yet fully addressed whether these
deadlines can be equitably tolled.\4\ Compare, e.g., Barry v. Mukasey,
524 F.3d 721, 724 (6th Cir. 2008) (``Equitable tolling may apply when a
petitioner has received ineffective assistance of counsel.'') (internal
quotation marks omitted), with Neves v. Holder, 613 F.3d 30, 36 (1st
Cir. 2010) (stating that ``[w]e assume arguendo, but do not decide,
that the time and number limits on motions to reopen are subject to
equitable tolling''). There is also a lack of uniformity among the
courts regarding the precise requirements and standards that an
individual must meet to establish due diligence in order to be eligible
for equitable tolling. Compare, e.g., Singh v. Gonzales, 491 F.3d 1090,
1096 (9th Cir. 2007) (providing that the filing deadline ``is
[equitably] tolled until the petitioner `definitively learns' of
counsel's fraud,'' if the petitioner acted with due diligence), with
Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (providing that
``[e]quitable tolling requires a court to consider whether a reasonable
person in the plaintiff's position would have been aware of the
possibility that he had suffered an injury'') (internal quotation marks
omitted).
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\4\ Equitable tolling refers to ``[t]he doctrine that the
statute of limitations will not bar a claim if the plaintiff,
despite diligent efforts, did not discover the injury until after
the limitations period had expired.'' Black's Law Dictionary 579
(8th ed. 2004).
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The purpose of this proposed rule is to establish uniform
procedural and substantive requirements for the filing of motions to
reopen based upon a claim of ineffective assistance of counsel and to
provide a uniform standard for adjudicating such motions. Like Matter
of Lozada and its progeny, this proposed rule would provide an
``objective basis from which to assess the veracity of the substantial
number of ineffective assistance claims,'' would ``hold attorneys to
appropriate standards of performance,'' and would ``ensure both that an
adequate factual basis exists in the record for an ineffectiveness
[motion] and that the [motion] is a legitimate and substantial one.''
Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir. 2010) (discussing the
goals behind Matter of Lozada) (internal quotation marks omitted).
While allowing for some flexibility, the proposed rule would clarify
the specific kinds of evidence and documentation to be submitted in
support of motions to reopen based upon a claim of ineffective
assistance of counsel. The filing requirements described in this rule
would serve to guide an individual filing a motion to reopen in
providing evidence necessary for a determination as to whether his or
her counsel was ineffective. As the Board stated in Matter of Lozada,
``[t]he 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.'' Matter of Lozada, 19 I&N Dec. at 639.
This proposed rule would add new Sec. 1003.48 to title 8 of the
Code of Federal Regulations (``regulations''). New Sec. 1003.48 would
provide the filing and evidentiary requirements for motions to reopen
based upon a claim of ineffective assistance of counsel. This section
would also incorporate standards for evaluating whether an individual
has established that he or she (1) acted with due diligence for the
purpose of determining the applicability of equitable tolling and (2)
was prejudiced by prior counsel's conduct. In addition, this proposed
rule would add a cross-reference to new Sec. 1003.48 to the current
regulations governing motions to reopen proceedings and to rescind
orders of removal, deportation, or exclusion entered in absentia.
The Department notes that the Board has consistently permitted the
reopening of proceedings based upon a claim of ineffective assistance
of counsel. See Matter of Assaad, 23 I&N Dec. at 558.\5\ The
requirements in proposed new Sec. 1003.48 would be in addition to the
general requirements for reopening provided in section 240(c)(7) of the
Act and Sec. Sec. 1003.2 and 1003.23 of the regulations. Thus, motions
to reopen proceedings based upon a claim of ineffective assistance of
counsel would need to meet the general requirements for reopening in
proposed Sec. Sec. 1003.2 and 1003.23, as well as the procedural and
substantive requirements for such motions at proposed Sec. 1003.48.
The Board and the immigration judges, moreover, have broad authority to
grant or deny a motion in the exercise of discretion, and this includes
the discretion to deny a motion even if the party moving has presented
a prima facie case for relief. See 8 CFR 1003.2(a), 1003.23(b)(3); see
also Abudu, 485 U.S. at 105 (explaining that, even where an individual
filing a motion to reopen has presented a prima facie case for relief,
the Board may deny the motion if the movant would not be entitled to
the discretionary relief ultimately at issue).
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\5\ Section 240 of the Act is applicable only to removal
proceedings (which are initiated on or after April 1, 1997), but, by
far, most motions to reopen are filed in removal proceedings. For
clarity, we note that in deportation and exclusion proceedings, and
all other types of proceedings before the immigration judges and the
Board, motions to reopen are governed exclusively by the Attorney
General's regulations in 8 CFR 1003.2 and 1003.23, not by section
240 of the Act.
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A. Applicability
The proposed provisions of the rule addressing motions to reopen
based upon a claim of ineffective assistance of counsel would cover
conduct that occurred only after removal, deportation, or exclusion
proceedings have commenced with the immigration courts.\6\ With the
exception discussed below, the proposed provisions of Sec. 1003.48
would not apply to motions to reopen proceedings before the immigration
judge or the Board based on counsel's conduct before another
administrative or judicial body, including before, during the course
of, or after the conclusion of immigration proceedings. This includes
conduct that was immigration-related or that occurred before the U.S.
Department of Homeland Security (DHS) or another government agency.
See, e.g., Contreras v. Att'y Gen., 665 F.3d 578, 585-86 (3d Cir. 2012)
(declining to find ineffective assistance of counsel in the preparation
and filing of a visa petition where counsel's conduct ``did not
compromise the fundamental fairness of'' subsequent removal
proceedings); Balam-Chuc v. Mukasey, 547 F.3d 1044, 1051 (9th Cir.
2008) (same where counsel's conduct ``[did] not relate to the
fundamental fairness of an ongoing proceeding''). The reason for this
limitation is that the Board and the immigration judges are
[[Page 49560]]
generally not in a position to provide a remedy in a situation where an
attorney's performance before another administrative or judicial body
is alleged to be ineffective. Rather, a request for a remedy in such a
situation would be more appropriately directed to that administrative
or judicial body before which the alleged ineffective assistance
occurred. Cf. Rivera v. United States, 477 F.2d 927, 928 (3d Cir. 1973)
(holding that, where the petitioner's appeal had been dismissed because
his attorney failed to file a brief, the petitioner's remedy was
through a motion in the court of appeals requesting that the mandate be
recalled to determine whether the appeal should be reinstated, not
through a motion in the district court); United States v. Winterhalder,
724 F.2d 109, 111 (10th Cir. 1983) (same).
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\6\ For purposes of this rule, included as ``removal,
deportation, or exclusion proceedings'' would be asylum-only and
withholding-only proceedings, given that those proceedings are
``conducted in accordance with the same rules of procedure as
[removal proceedings].'' 8 CFR 1208.2(c)(3)(i). This rule would not
apply in bond proceedings. However, in bond proceedings, after an
immigration judge makes an initial bond redetermination, an
individual can request, in writing, that the immigration judge make
``a subsequent bond redetermination . . . [based] upon a showing
that the alien's circumstances have changed materially since the
prior bond redetermination.'' 8 CFR 1003.19(e). In addition, this
rule would not apply in practitioner discipline proceedings
conducted under 8 CFR part 1003 subpart G.
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The proposed motion provisions in Sec. 1003.48 would provide for
one explicit exception to the limitation on the Board's authority to
provide a remedy for ineffective assistance of counsel before another
administrative or judicial body. The exception would be with respect to
a claim that counsel was ineffective for failing to file a timely
petition for review of a Board decision with the appropriate court of
appeals. Under the proposed rule at Sec. 1003.48(c), an individual
could file a motion to reopen with the Board in such a situation, and
the Board would have discretion to reopen proceedings to address such a
claim. The reason for allowing such a motion is that the failure to
file a timely petition for review leaves the court of appeals without
any jurisdiction to address the claim of ineffectiveness given that the
30-day deadline for filing a petition for review is mandatory and
jurisdictional. See INA 242(a)(1), (b)(1); see, e.g., Ortiz-Alfaro v.
Holder, 694 F.3d 955, 958 (9th Cir. 2012); Ruiz-Martinez v. Mukasey,
516 F.3d 102, 117-18 (2d Cir. 2008); Dakane v. U.S. Att'y. Gen., 399
F.3d 1269, 1272 n. 3 (11th Cir. 2004); Magtanong v. Gonzales, 494 F.3d
1190, 1191 (9th Cir. 2007). This exception is consistent with the
general principles expressed in both Compean I and Compean II; in both
decisions, the Attorney General contemplated that the Board could
provide a remedy for ineffective assistance that occurred after the
issuance of a final order of removal. See Compean I, 24 I&N Dec. at 740
(stating that ``the [view] I adopt today . . . is that the Board has
jurisdiction to consider deficient performance claims even where they
are predicated on lawyer conduct that occurred after a final order of
removal has been entered''); Compean II, 25 I&N Dec. at 3 (noting that,
``prior to Compean[ I], the Board itself had not resolved whether its
discretion to reopen removal proceedings includes the power to consider
claims of ineffective assistance of counsel based on conduct of counsel
that occurred after a final order of removal had been entered,'' and
stating that ``I resolve the question in the interim by concluding that
the Board does have this discretion, and I leave it to the Board to
determine the scope of such discretion'').
For his or her case to be reopened, an individual filing the motion
based on failure to file a timely petition for review would have to
comply with the requirements of Sec. 1003.48(b)(1)-(3) (affidavit,
notice to counsel, and complaint filed with the appropriate
disciplinary authorities), described in more detail below. Under Sec.
1003.48(c)(2), in order to establish that counsel acted ineffectively,
the individual would have to establish that counsel had agreed to file
a petition for review but failed to do so. To meet this burden, the
individual would have to submit a representation agreement making clear
that the scope of representation included the filing of a petition for
review, or would have to otherwise establish that the scope of
representation included the filing of a petition for review.
The proposed motion provisions would only apply to the conduct of
certain individuals. With the exception discussed below, these
provisions would cover only the conduct of attorneys and accredited
representatives as defined in part 1292 of title 8 of the Code of
Federal Regulations. The reason for such a limitation is that attorneys
and accredited representatives are governed by rules of professional
conduct and have skills, including knowledge of immigration laws and
procedures, which are directly related to furthering the interests that
individuals and the government have in fair and accurate immigration
proceedings. See, e.g., Hernandez v. Mukasey, 524 F.3d 1014, 1018-20
(9th Cir. 2008) (noting that, in contrast to the law's treatment of
attorneys possessing particular skills and governed by specific
professional standards, ``the law has never presumed that [the
participation of non-attorney `immigration consultants'] is necessary
or desirable to ensure fairness in removal proceedings,'' id. at 1019,
and that, if ``an individual . . . knowingly relies on assistance from
individuals not authorized to practice law, such a voluntary choice
will not support a due process claim based on ineffective assistance of
counsel,'' id. at 1020). With limited exceptions, a person who is not
an attorney or accredited representative is not permitted to represent
individuals in proceedings before the immigration courts or the Board.
See 8 CFR 1292.1(a)(1)-(5). Moreover, the regulations require the
immigration judge to advise individuals in removal proceedings of their
right to representation, at no expense to the government, by counsel of
their choice authorized to practice in the proceedings, and
specifically require that individuals in proceedings be advised of the
availability of pro bono legal services and receive a list of such
services. See 8 CFR 1003.16, 1003.61, 1240.10(a)(1).
However, this proposed rule would recognize that, sometimes, a
person who is not an attorney or accredited representative may lead an
individual in removal, deportation, or exclusion proceedings to believe
that the person is an attorney or representative, and that the
individual in proceedings, as a result of that mistaken belief, may
retain that person to represent him or her in such proceedings. When
this occurs, in assessing whether to reopen proceedings, the
immigration judge or the Board would evaluate on a case-by-case basis
whether it was reasonable for the individual in such proceedings to
believe that the person in question was indeed an attorney or an
accredited representative, and whether he or she then retained that
person. See Sec. Sec. 1003.23(b)(4)(v), 1003.48(a)(1). In evaluating
these questions, the immigration judge or the Board could consider,
among others, the following inquiries: whether, and the extent to
which, the person held himself or herself out as an attorney or
accredited representative; whether the individual in proceedings
knowingly relied on the assistance of the person not authorized to
practice law; and the extent of the representation, including whether
the person appeared in the immigration proceedings or completed,
signed, or submitted documents or evidence in such proceedings on
behalf of the individual.
B. Effective Date
In addition to the above limitations, the proposed provisions of
Sec. 1003.48 would apply only to motions to reopen proceedings based
upon a claim of ineffective assistance of counsel filed with the
immigration courts or the Board on or after the effective date of the
final rule.
[[Page 49561]]
C. Proposed Requirements in Sec. 1003.48 for Filing a Motion To Reopen
Based Upon a Claim of Ineffective Assistance of Counsel
The proposed rule at Sec. 1003.48 would provide filing and
evidentiary requirements for motions to reopen based upon a claim of
ineffective assistance of counsel. In order to succeed in a motion to
reopen, the individual filing the motion would have to submit evidence
both that prior counsel's conduct was ineffective and that the
individual was prejudiced as a result of counsel's ineffective
assistance.
With respect to the specific conduct that would amount to
ineffective assistance in immigration proceedings, this rule would not
set any bright line standards, or an enumerated list, of what specific
conduct would amount to ineffective assistance in immigration
proceedings. Rather, the proposed rule would provide, at Sec.
1003.48(a)(2), that ``[a] counsel's conduct constitutes ineffective
assistance of counsel if the conduct was unreasonable, based on the
facts of the particular case, viewed as of the time of the conduct.''
This provision, in calling for an inquiry based on the
reasonableness of the counsel's conduct, viewed when the conduct
occurred, would be based on the Supreme Court's holding in Strickland.
There, the Court stated that ``[n]o particular set of detailed rules
for counsel's conduct can satisfactorily take account of the variety of
circumstances faced by . . . counsel or the range of legitimate
decisions regarding how best to represent a [client].'' Strickland, 466
U.S. at 688-89. Rather, for an attorney's representation to constitute
ineffective assistance, the representation ``must . . . [fall] below an
objective standard of reasonableness,'' id. at 688, judged ``on the
facts of the particular case, [and] viewed as of the time of counsel's
conduct,'' id. at 690; see also Wong v. Belmontes, 558 U.S. 15, 16-17
(2009) (per curiam) (citing Strickland, 466 U.S. at 687-89).
Under this proposed provision, a tactical decision would not be
ineffective assistance if the decision was reasonable when it was made,
even if it proved unwise in hindsight. See Strickland, 466 U.S. at 689
(stating that ``[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight''); Mena-Flores v. Holder, 776 F.3d 1152, 1169 (10th Cir.
2015) (stating that ``[a]n attorney's objectively reasonable tactical
decisions do not qualify as ineffective assistance''); Jiang v.
Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (holding that ``recommending
[a] strategic decision [that ultimately does not succeed] does not
constitute ineffective assistance of counsel''); Magallanes-Damian v.
INS, 783 F.2d 931, 934 (9th Cir. 1986) (holding that the attorney's
decision not to contest deportability, even if ``unwise'' in hindsight,
was not ineffective assistance of counsel); Rodriguez-Gonzalez v. INS,
640 F.2d 1139, 1142 (9th Cir. 1981) (holding that a tactical ``decision
to forego challenging [an] accusation of entry without inspection . . .
even if in hindsight unwise, does not constitute ineffective
assistance''); cf. Matter of Velasquez, 19 I&N Dec. 377, 383 (BIA 1986)
(stating that the attorney's ``admissions [of factual allegations] and
the concession of deportability were reasonable tactical actions,'' and
thus were binding). Further, under this proposed provision, we expect
that there would be ``a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.''
Strickland, 466 U.S. at 689.
The filing requirements described in proposed Sec. 1003.48(b)(1)-
(3) would serve to guide the individual filing the motion in providing
the evidence necessary for a determination as to whether his or her
counsel's conduct was ineffective. In order to demonstrate that
counsel's conduct was ineffective, the motion should set forth clearly
the particular circumstances underlying a given case. In order to
prevail, the individual may need to submit documentary or other
supporting evidence beyond that described in Sec. 1003.48(b)(1)-(3).
For example, additional evidence could include evidence of payment to
prior counsel or an affidavit explaining what the individual in
proceedings specifically disclosed to prior counsel, such as the
individual's family ties or criminal history. Additional supporting
evidence could also include written statements from current counsel or
witnesses regarding prior counsel's conduct.
As discussed in detail in section E, in addition to demonstrating
that prior counsel's conduct was ineffective, the individual filing the
motion would have the burden of establishing that the individual was
prejudiced as a result of that conduct. The requirement of providing
evidence that the prior counsel was ineffective would be distinct from
establishing prejudice as required in Sec. 1003.48(b)(4). The
Department cautions that the immigration judge or the Board would have
the discretion to deny the motion without reaching the issue of
prejudice, if the individual does not submit arguments or evidence
establishing that the prior counsel's conduct was ineffective.
Proposed Sec. 1003.48 would describe the required evidence to be
included with a motion to reopen proceedings before the immigration
judge or the Board based upon a claim of ineffective assistance of
counsel. Section 1003.48(b)(1)(i) would require an individual to submit
an affidavit, or a written statement executed under the penalty of
perjury as provided in 28 U.S.C. 1746,\7\ setting forth in detail the
agreement that was entered into with prior counsel with respect to the
actions to be taken by counsel, and what representations counsel did or
did not make in this regard.
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\7\ Under 28 U.S.C. 1746, an unsworn declaration, certification,
verification, or statement executed in the United States is deemed
to be made under penalty of perjury if it includes the following
words ``in substantially the following form'': ``I declare (or
certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). . . .
(Signature).''
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An affidavit is ``[a] written or printed declaration or statement
of facts, made voluntarily, and confirmed by the oath or affirmation of
the party making it, taken before a person having authority to
administer such oath or affirmation.'' Black's Law Dictionary 58 (6th
ed. 1990). The ``affidavit provides an exact, sworn recitation of
facts, collected in one place . . . . [T]he affidavit requirement
serves not only to focus the facts underlying the charge, but to foster
an atmosphere of solemnity commensurate with the gravity of the
claim.'' Reyes, 358 F.3d at 598 (ellipsis and brackets in original)
(quoting Keating v. Office of Thrift Supervision, 45 F.3d 322, 327 (9th
Cir. 1995)). The Department recognizes, however, that some individuals,
particularly those who are unrepresented, may face burdens in complying
with the technical requirements of an affidavit. For example, an
unrepresented individual may be in detention and without ready access
to an official with authority to administer an oath or affirmation. For
that reason, Sec. 1003.48(b)(1)(i) would permit the submission of a
written statement, executed under the penalty of perjury as provided in
28 U.S.C. 1746, that does not meet the technical requirements of an
affidavit. In addition, as described in more detail below, the Board or
an immigration judge could, in an exercise of discretion committed
solely to EOIR, excuse the requirement that the written statement be
executed under the penalty of perjury in certain limited instances.
Proposed Sec. 1003.48(b)(1)(ii) would provide that, in addition to
the affidavit or written statement executed under the
[[Page 49562]]
penalty of perjury, the individual filing the motion must submit a copy
of any agreement entered into with prior counsel. If no agreement is
provided, the individual would have to explain its absence in the
affidavit or written statement, for example by describing his or her
efforts to obtain the agreement from prior counsel. In addition, the
individual would have to provide any reasonably available evidence on
the scope of the agreement and the reasons for its absence, for example
by providing evidence that the representation agreement was unwritten.
The requirement to provide evidence of the agreement with prior counsel
would help immigration judges and the Board to understand the ``nature,
scope, or substance'' of the attorney's obligations, if any, to his or
her client, and thus whether prior counsel was ineffective. Beltre-
Veloz, 533 F.3d at 10; see also Punzalan v. Holder, 575 F.3d 107, 111-
12 (1st Cir. 2009) (quoting Beltre-Veloz, 533 F.3d at 10); Ruiz-
Martinez, 516 F.3d at 121 (rejecting an ineffective assistance of
counsel claim because the individual filing the motion ``did not set
forth his agreement with his prior attorneys concerning what actions
would be taken or what they did or did not represent in this regard'').
Proposed Sec. 1003.48(b)(2) would require an individual filing a
motion to provide evidence that the counsel whose representation is
claimed to have been ineffective has been informed of the allegations
leveled against that counsel and that a motion to reopen alleging
ineffective assistance of counsel would be filed on that basis. As
discussed in Matter of Lozada, this requirement would mitigate the
possibility of abuse by providing a ``mechanism . . . for allowing
former counsel . . . to present his version of events if he so
chooses.'' 19 I&N Dec. at 639; see Debeatham v. Holder, 602 F.3d 481,
485-86 (2d Cir. 2010). Additionally, this ``notice requirement [would]
provide[ ] a mechanism by which the [immigration judge] may more
accurately assess the merits of [an] ineffective assistance claim.''
Reyes, 358 F.3d at 599.
The Department notes that merely copying counsel on a complaint
filed with the appropriate State bar or governmental authority would
not be sufficient to meet the notice requirement; rather, the
individual filing the motion would have to provide notice to his or her
prior counsel in a separate written correspondence that a motion to
reopen would be filed alleging ineffective assistance of counsel. With
the motion, the individual would also have to provide evidence of the
date he or she provided notice to prior counsel, and the manner in
which this notice was provided, and the individual would have to
include a copy of the correspondence to the attorney. The individual
would also have to submit to the immigration court or the Board any
subsequent response from prior counsel. This obligation would continue
until such time as a decision is rendered on the motion.
Proposed Sec. 1003.48(b)(3) would further require the individual
filing the motion to file a complaint with the appropriate disciplinary
authorities with respect to any violation of prior counsel's ethical or
legal responsibilities. This requirement would help to monitor the
legal profession and to assist the appropriate disciplinary authorities
in considering and acting on instances of ineffective assistance of
counsel. See, e.g., Matter of Rivera, 21 I&N Dec. 599, 603-05 (BIA
1996). Additionally, it would ``highlight[ ] the standard[s] which
should be expected of attorneys who represent persons in immigration
proceedings, the outcome of which may, and often does, have enormous
significance for the person.'' Sswajje v. Ashcroft, 350 F.3d 528, 533
(6th Cir. 2003) (quoting Matter of Lozada, 19 I&N Dec. at 639-40); see
also Reyes, 358 F.3d at 596 (same). The requirement would ``also serve[
] to protect against collusion between alien and counsel in which
`ineffective' assistance is tolerated, and goes unchallenged by an
alien before disciplinary authorities, because it results in a benefit
to the alien in that delay can be a desired end, in itself, in
immigration proceedings.'' Matter of Rivera, 21 I&N Dec. at 604; see
also Betouche, 357 F.3d at 150 (recognizing the ``significant prospect
that entirely meritless and/or collusive ineffective assistance claims
may be filed for purely dilatory purposes''); Xu Yong Lu, 259 F.3d at
133 (quoting Matter of Rivera, 21 I&N Dec. 599, on the purposes of the
bar complaint requirement).
The proposed rule provides that the individual filing the motion
would have to file the complaint against his or her representative with
the appropriate disciplinary authorities. For an attorney, the
individual would have to file the complaint with the relevant State
licensing authority. For an accredited representative, the individual
would have to file the complaint with the EOIR disciplinary counsel.\8\
Where the individual filing the motion reasonably but erroneously
believed a person to be an attorney or accredited representative and
retained that person to represent him or her in the proceedings before
the immigration judge or the Board, the individual would have to file
the complaint with an appropriate State or local law enforcement agency
(which in some States may include the State Attorney General's office)
with authority over matters relating to the unauthorized practice of
law or immigration-related fraud. If the individual filing the motion
has any questions regarding determining the appropriate State or local
enforcement agency with authority over such matters in proceedings
before the immigration judges or the Board, he or she should contact
the Fraud and Abuse Prevention Program in the Office of the General
Counsel at EOIR at (703) 305-0470.
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\8\ Individuals in immigration proceedings are permitted
representation of their choosing before EOIR and may be represented
by an accredited representative. 8 CFR 1003.16, 1292.1. The proposed
rule would require that complaints against accredited
representatives be filed with the EOIR disciplinary counsel because
EOIR is responsible for the accreditation process and the EOIR
disciplinary counsel is responsible for investigating allegations of
misconduct against accredited representatives appearing before the
immigration courts and the Board. See 8 CFR 1003.104, 1292.2(d). The
Department notes that the Board and some circuit courts have
analyzed ineffective assistance of counsel claims without expressly
addressing whether the Matter of Lozada requirements should be
strictly applied to an accredited representative. See, e.g., Matter
of Zmijewska, 24 I&N Dec. 87, 94-95 (BIA 2007); Romero v. INS, 399
F.3d 109, 112-13 (2d Cir. 2005). The Department has determined,
however, that due to EOIR's ability to accredit and to discipline
accredited representatives, an accredited representative should be
treated the same as an attorney for purposes of determining
ineffective representation. Thus, the Department has determined that
the requirements for reopening based upon a claim of ineffective
assistance of counsel should be applied to an accredited
representative appearing in cases before the immigration judges or
the Board in the same manner as the requirements are applied to an
attorney.
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The individual filing the motion would have to submit a copy of the
complaint and any correspondence from the disciplinary authority with
his or her motion to the immigration court or the Board. In addition to
filing the required complaint, the individual would not be precluded
from taking any other actions to notify appropriate governmental or
disciplinary authorities regarding the conduct of his or her prior
counsel, accredited representative, or any person retained by the
individual whom he or she reasonably but erroneously believed to be an
attorney or accredited representative, and submitting evidence of such
actions with his or her motion. In addition, the Department notes that
this rule would not preclude the individual from taking any other
actions to notify the
[[Page 49563]]
appropriate governmental or disciplinary authorities regulating the
unauthorized practice of law regarding any person not authorized to
practice law.
The Department welcomes input from the public about the requirement
to submit, with a motion to reopen, a complaint filed with the
appropriate disciplinary authorities. As noted above, there are
important policy reasons for this requirement, although the Department
acknowledges certain countervailing concerns, as referenced by Attorney
General Mukasey in Compean I, see 24 I&N Dec. at 737-38. The Department
welcomes comments, including from State licensing authorities,
regarding the efficacy of this requirement in assisting State licensing
authorities in regulating the legal profession.
Finally, proposed Sec. 1003.48(b) would require the individual
filing the motion to comply with the existing requirements for motions
to reopen in Sec. Sec. 1003.2 and 1003.23. Sections 1003.2 and 1003.23
require the individual to submit evidence of what will be proven at the
hearing if the motion is granted and to submit any appropriate
applications for relief, supporting documentation, or other evidentiary
material. For a motion based on ineffective assistance of counsel, this
could include evidence that the filer's prior counsel failed to provide
to the immigration judge or the Board, or other independent evidence,
such as affidavits, applications for relief and supporting
documentation, proffered testimony of potential witnesses, family
history, country conditions, identity documentation, or criminal
records or clearances.
After promulgation of this rule, the Department may publish
additional information, such as in a fact sheet or other format, to
assist the public in filing motions to reopen based upon a claim of
ineffective assistance of counsel. Additionally, the Department will
seek out opportunities to engage the public in an effort to inform
individuals about the process. The Department welcomes input from the
public regarding what type of information might best assist counsel and
unrepresented individuals in the preparation and filing of such motions
with the immigration courts and the Board as well as information and
ideas on how best to engage impacted communities.
D. Compliance With the Filing Requirements in Proposed Sec. 1003.48
As discussed above, the evidentiary requirements in proposed Sec.
1003.48 would guide individuals in proceedings in providing the
evidence necessary for a determination of whether the counsel's conduct
was ineffective, and would assist the immigration judge and the Board
in making this determination. See generally Matter of Lozada, 19 I&N
Dec. at 639-40 (discussing how these evidentiary requirements assist
the adjudicator in evaluating a claim of ineffective assistance of
counsel); Matter of Assaad, 23 I&N Dec. at 556-57 (same); Matter of
Rivera, 21 I&N Dec. at 603-07 (same).
Most circuits have required some level of compliance with Matter of
Lozada. The First Circuit, for example, has generally required that the
Matter of Lozada requirements be satisfied. See, e.g., Georcely v.
Ashcroft, 375 F.3d 45, 51 (1st Cir. 2004) (noting that ``[a]lthough we
have hinted that full compliance with Lozada's requirements might be
excused in an appropriate case, the Lozada requirements generally make
sense'') (internal citation omitted). The court in Georcely reasoned:
It is all too easy after the fact to denounce counsel and
achieve a further delay while that issue is sorted out. And in the
absence of a complaint to the bar authorities, counsel may have all
too obvious an incentive to help his client disparage the quality of
the representation.
Id.; see also Punzalan, 575 F.3d at 111 (``The BIA acts within its
discretion in denying motions to reopen that fail to meet the Lozada
requirements as long as it does so in a non-arbitrary manner.'')
(internal quotation marks omitted); Betouche, 357 F.3d at 150-51
(setting forth reasons for the Matter of Lozada requirements).
The Seventh, Eighth, and Tenth Circuits have also generally
required compliance, but have not yet determined whether they might
overlook a lack of compliance with the Matter of Lozada requirements in
an appropriate case. See Patel, 496 F.3d at 831 (noting that ``[w]e
have not expressly decided whether the BIA abuses its discretion by
requiring strict compliance with Lozada''); Habchy v. Gonzales, 471
F.3d 858, 863 (8th Cir. 2006) (noting that the Eighth Circuit ``has not
ruled on whether a strict application of those requirements could
constitute an abuse of discretion in certain circumstances,'' but
stating that, ``[a]t the very least, an [immigration judge] does not
abuse his discretion in requiring substantial compliance with the
Lozada requirements when it is necessary to serve the overall purposes
of Lozada''); Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir. 2003)
(stating that ``[w]e not decide whether substantial compliance would be
sufficient because Mr. Tang has made no attempt to comply with any of
Lozada's requirements''); see also Stroe v. INS, 256 F.3d 498, 504 (7th
Cir. 2001) (noting that ``we have difficulty understanding how an alien
who fails to comply with the Board's criteria can succeed in
challenging its decision'').
The Sixth Circuit has also required that individuals filing motions
generally comply with all three Lozada requirements, noting that
``[s]ound policy reasons support compliance'' and the requirements
``facilitate a more thorough evaluation by the BIA and discourage
baseless allegations.'' Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.
2003) (internal quotation marks omitted); see also Pepaj v. Mukasey,
509 F.3d 725, 727 (6th Cir. 2007) (``An alien who fails to comply with
Lozada's requirements forfeits her ineffective-assistance-of-counsel
claim.''). The Fifth Circuit also requires compliance with Matter of
Lozada. See Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir.
2012) (rejecting the argument that the court ``should apply Lozada
flexibly'').
Other courts have adopted or indicated an approach under which full
compliance may be excused in certain limited circumstances. In Barry v.
Gonzales, 445 F.3d 741 (4th Cir. 2006), the court explained:
[A]lthough Lozada provides a useful framework for assessing
ineffective assistance claims, an alien's failure to satisfy all
three requirements does not preclude appellate court review in every
case. We will reach the merits of an ineffective assistance of
counsel claim where the alien substantially complies with the Lozada
requirements, such that the BIA could have ascertained that the
claim was not frivolous and otherwise asserted to delay deportation.
However, an alien who fails to satisfy any of the three Lozada
requirements will rarely, if ever, be in substantial compliance.
Id. at 746; cf. Dakane, 399 F.3d at 1274 (requiring ``substantial, if
not exact, compliance with the procedural requirements of Lozada'');
Gbaya v. U.S. Att'y Gen., 342 F.3d 1219, 1222 & n. 2 (11th Cir. 2003)
(stating that, given that the individual who filed the motion ``failed
to comply with at least two out of three Lozada requirements, [he]
would not be in substantial compliance with Lozada,'' id. at 1222 n.2,
but not deciding ``whether the BIA may enforce strict compliance with
Lozada or must also accept substantial compliance,'' id. at 1222).
However, a few courts of appeals have gone further, excusing a lack
of compliance in a greater variety of situations. Such courts have
warned of the ``inherent dangers . . . in applying
[[Page 49564]]
a strict, formulaic interpretation of Lozada.'' Rranci v. Att'y Gen.,
540 F.3d 165, 173 (3d Cir. 2008) (ellipsis in original) (internal
quotation marks omitted); see also Yang v. Gonzales, 478 F.3d 133, 142-
43 (2d Cir. 2007) (``As to compliance with Lozada in relation to claims
of ineffective assistance of counsel, we have not required a slavish
adherence to the requirements, holding only that substantial compliance
is necessary.''). These courts of appeals have differed on what
circumstances excuse the Matter of Lozada requirements, but have
generally held that there must be a rational reason for excusing
failure to comply with one or more of the requirements. For example,
both the Ninth and Second Circuits have noted that the Matter of Lozada
requirements should not be rigidly applied where their purpose is fully
served by other means. See, e.g., Morales Apolinar, 514 F.3d at 896;
Piranej v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008) (remanding to
the Board because, although the individual filing the motion failed to
submit an affidavit outlining his agreement with his prior counsel, a
general retainer agreement may have satisfied the Matter of Lozada
requirements).
The Ninth Circuit has found that, in some circumstances, the
individual filing the motion does not need to comply with any of the
requirements in Matter of Lozada. See, e.g., Castillo-Perez v. INS, 212
F.3d 518, 525-27 (9th Cir. 2000) (finding that there is no need to
comply with Matter of Lozada where the record was undisputed that
counsel failed, without any reason, to apply in a timely manner for
relief for which the client was prima facie eligible while telling the
client that he had filed for such relief); Escobar-Grijalva, 206 F.3d
at 1335 (finding that there is no need to comply with Matter of Lozada
where the record establishes on its face ineffective assistance of
counsel). In Tamang, 598 F.3d at 1090, the Ninth Circuit distinguished
prior cases in which ``strict compliance with Lozada was not required
because, under the circumstances of those cases, the ineffectiveness of
counsel was plain on its face.'' The court found that, in Tamang's
case, ``without Tamang's compliance with the Lozada elements, . . . it
is impossible to determine whether [his] ineffective assistance of
counsel claim has merit.'' Id. Accordingly, the law with regard to
compliance with the Matter of Lozada requirements varies significantly
among the circuits.
The proposed rule would provide adjudicators with the discretion,
committed exclusively to EOIR, to excuse noncompliance with the filing
requirements in Sec. 1003.48(b)(1)-(3) for compelling reasons in
various limited circumstances. Collectively, the filing requirements at
Sec. 1003.48(b)(1)-(3) are designed to ensure that adjudicators have
access to crucial information to help them determine whether an
individual was subject to ineffective assistance of counsel and
suffered prejudice. However, the Department recognizes that there are
limited situations in which an individual is unable to comply with a
filing requirement but can still demonstrate that he or she was subject
to ineffective assistance of counsel and suffered prejudice as a
result, such that it would be appropriate to grant his or her motion.
As noted above, Sec. 1003.48(b)(1)(i) would provide that an
individual filing a motion must submit an affidavit, or a written
statement executed under the penalty of perjury as provided in 28
U.S.C. 1746, setting forth in detail the agreement that was entered
into with respect to the actions to be taken by counsel and what
representations counsel did or did not make in this regard. If the
individual submits a written statement, Sec. 1003.48(b)(1)(i) would
permit the adjudicator, in an exercise of discretion committed
exclusively to EOIR, to excuse the requirement that the written
statement be executed under the penalty of perjury if there are
compelling reasons why the written statement was not so executed and
the motion is accompanied by certain other evidence. For example, if
the individual is unrepresented and speaks little English, and submits
a written statement that does not fully comply with the technical
requirements of 28 U.S.C. 1746 for a document to be under the penalty
of perjury, it may be appropriate for the adjudicator, in the exercise
of discretion, to excuse for compelling reasons the requirement that
the written statement be executed under the penalty of perjury. The
Department expects that the waiver issue would arise almost exclusively
in cases where the individual is unrepresented and is not familiar with
the requirement to submit a written statement under the penalty of
perjury, inasmuch as attorneys are familiar with requirements for the
submission of affidavits and written statements under the penalty of
perjury.
A waiver of the requirement that a written statement be executed
under the penalty of perjury would be inappropriate in the absence of
other evidence independently establishing that the individual was
subject to ineffective assistance of counsel and suffered prejudice as
a result. This approach is consistent with the general rule that
assertions in a written statement that are not under the penalty of
perjury would be entitled to little or no evidentiary weight. Cf.
Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) (stating that
``statements in a brief, motion, or Notice of Appeal are not evidence
and thus are not entitled to any evidentiary weight'').
The Department seeks comments from the public on this provision.
First, the Department seeks comment on whether an individual should be
required, without exception, to submit an affidavit or a written
statement executed under the penalty of perjury, given that assertions
in documents not under the penalty of perjury are generally given
little or no evidentiary weight. If an exception should exist, the
Department seeks comments on whether this exception should be
formulated differently. For example, the Department has considered
providing that the requirement that the written statement be executed
under penalty of perjury could be excused if there is good cause to do
so, or if exceptional circumstances are present. The Department seeks
comments on whether either of these standards is more appropriate than
the current proposed ``compelling reasons'' standard.
Similarly, the remaining requirements in proposed Sec.
1003.48(b)(1)(ii)-(3), i.e., submitting any representation agreement
with counsel, providing notice to prior counsel, and filing a complaint
with the appropriate disciplinary authorities, could be excused in
limited instances for compelling reasons. An individual filing a motion
would have the burden of establishing compelling reasons for excusing
one of these requirements. A simple, unsupported, or blanket assertion
of a difficulty or situation that inhibited compliance would not, on
its own, suffice. Rather, the individual would have to explain the
circumstances preventing his or her compliance, providing sufficient
details and supporting documentation when appropriate. He or she should
also provide other information to support his or her claim, such as
explaining why the failure to comply could not or need not be remedied
or producing alternative evidence. Ultimately, as each case would
involve its own unique circumstances, the immigration judge and the
Board would be in the best position to determine whether a filing
requirement should be excused in a given case and whether the case
warrants reopening in the exercise of
[[Page 49565]]
discretion despite lack of compliance with regulatory requirements.
With respect to the requirement in Sec. 1003.48(b)(1)(ii) that an
individual filing a motion submit any applicable representation
agreement with prior counsel, such an agreement is the best evidence of
the nature, scope, or substance of the representation. However, if an
individual filing a motion can establish compelling reasons for failing
to submit such an agreement, then Sec. 1003.48(b)(1)(ii) would permit
the immigration judge or the Board, in the exercise of discretion
committed exclusively to EOIR, to excuse this failure if the individual
filing the motion submits other reasonably available evidence regarding
his or her agreement with prior counsel.
With respect to the requirement in Sec. 1003.48(b)(2) that an
individual filing a motion notify prior counsel, the Department notes
that State bar associations generally make their members' contact
information publicly available. Further, the requirement to notify
prior counsel applies even if a long period of time has passed since a
person last had contact with the counsel. However, there are limited
instances in which an individual filing a motion may be able to
establish compelling reasons why he or she was unable to notify prior
counsel. Examples may include instances where the prior counsel is
incarcerated or has moved to a foreign country, or where the prior
counsel is an individual the movant reasonably but erroneously believed
to be an attorney or accredited representative and, despite diligent
efforts, he or she cannot obtain prior counsel's contact information.
With respect to the requirement in Sec. 1003.48(b)(3) that an
individual filing a motion file a complaint with the appropriate
disciplinary authorities, this standard is informed by the fact that
the filing of a disciplinary complaint is ``a relatively small
inconvenience for an alien who asks that he or she be given a new
hearing in a system that is already stretched in terms of its
adjudicatory resources.'' Matter of Rivera, 21 I&N Dec. at 605.
However, there are limited instances where an individual filing a
motion may be able to establish compelling reasons for failing to file
such a complaint. An example of such reasons may be the death of the
counsel who allegedly provided the ineffective assistance. The
Department notes that filing the complaint with the incorrect
disciplinary authorities would not, on its own, excuse noncompliance
with the filing requirement. If the individual files his or her
complaint with the incorrect disciplinary authorities, he or she would
have to re-file the complaint with the correct disciplinary
authorities. The Department further notes that the fact that counsel
has been disciplined, suspended from the practice of law, or disbarred
would not, on its own, excuse an individual from filing the required
disciplinary complaint. Even in the case of a disbarred attorney,
complaints filed after disbarment may be relevant. In the majority of
States, a disbarred attorney may seek readmission to the bar after a
certain period of time. As such, in considering whether a disbarred
attorney merits readmission, the licensing authority may consider
complaints filed after disbarment.
It is important to consider the context for ineffective assistance
of counsel claims under this rulemaking. These claims will typically
arise after a final order has been entered in the case, and the
proceedings have ended. The Department believes that the standards for
excusing noncompliance with the filing requirements under Sec.
1003.48(b)(1)-(3) must be carefully applied. In this regard, the
adjudicator applying these standards should keep in mind the strong
public and governmental interests in the expeditiousness and finality
of proceedings. See Abudu, 485 U.S. at 107 (explaining that motions to
reopen are disfavored because ``[t]here is a strong public interest in
bringing litigation to a close as promptly as is consistent with the
interest in giving the adversaries a fair opportunity to develop and
present their respective cases''). These interests dictate that a Sec.
1003.48 filing requirement be excused sparingly and only in relatively
few circumstances. The Department believes that the exceptions to the
proposed rule's filing requirements are appropriately narrow, and that
the requirements will accordingly be excused only rarely.
E. Standard in Proposed Sec. 1003.48 for Evaluating Prejudice \9\
The proposed rule would provide that an individual who files a
motion to reopen based upon a claim of ineffective assistance of
counsel must establish that he or she was prejudiced by counsel's
conduct. The Board and the courts of appeals have uniformly recognized
that prejudice must be established in order to reopen removal,
deportation, or exclusion proceedings based on a claim of ineffective
assistance of counsel. See, e.g., Matter of Lozada, 19 I&N Dec. at 638;
Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009); Jiang,
522 F.3d at 270; Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Mai
v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). The Board, however, has
not established a standard for prejudice, and the courts of appeals, as
set forth below, have provided varying standards.
---------------------------------------------------------------------------
\9\ The prejudice standard for motions to reopen in absentia
proceedings based upon a claim of ineffective assistance of counsel
is covered in section G discussed below.
---------------------------------------------------------------------------
This rule would set forth a single uniform standard for prejudice
to be applied nationwide in ineffective assistance of counsel cases.
This would ensure that individuals in similar situations would not be
subject to disparate results based solely on the fact that their cases
arose in different Federal jurisdictions. See generally Matter of
Cerna, 20 I&N Dec. 399, 408 (BIA 1991) (explaining why immigration
laws, to the ``extent possible . . . should be applied in a uniform
manner nationwide''), superseded by regulation as stated in Martinez-
Lopez v. Holder, 704 F.3d 169, 172 (1st Cir. 2013); Cazarez-Gutierrez
v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004) (noting the ``strong
interest in national uniformity in the administration of immigration
laws''); Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091 (7th Cir. 1994)
(``National uniformity in the immigration and naturalization laws is
paramount: Rarely is the vision of a unitary nation so pronounced as in
the laws that determine who may cross our national borders and who may
become a citizen.'').
As already noted, the lack of uniformity among the circuits is
plain. The Sixth Circuit applies a very strict standard for evaluating
prejudice in ineffective assistance of counsel immigration cases. See,
e.g., Sako, 434 F.3d at 864 (holding that an individual ``must
establish that, but for the ineffective assistance of counsel, he would
have been entitled to continue residing in the United States'').
Several circuits apply a standard similar to that established by
the Supreme Court in Strickland for ineffective assistance of counsel
claims arising under the Sixth Amendment in criminal cases, which is a
``reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.'' Strickland,
466 U.S. at 694. These include the Third and Eleventh Circuits. See
Rranci, 540 F.3d at 175-76 (``a reasonable likelihood that the result
would have been different if the error[s] . . . had not occurred'')
(brackets and ellipsis in original) (internal quotation marks omitted);
Dakane, 399 F.3d at 1274 (``a reasonable probability that but for the
attorney's error, the outcome of
[[Page 49566]]
the proceedings would have been different'').\10\
---------------------------------------------------------------------------
\10\ The Eighth Circuit also used a similar standard before it
found that there was no constitutionally-based right to effective
counsel in removal proceedings. See Obleshchenko, 392 F.3d at 972;
see also Rafiyev, 536 F.3d at 861 (concluding that there is no
constitutional right under the Fifth Amendment to effective
assistance of counsel in a removal proceeding). The Tenth Circuit
has also employed this standard. See, e.g., Delariva v. Holder, 312
F. App'x 130, 132, 2009 WL 361373 (10th Cir. 2009) (unpublished)
(citing United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th
Cir. 2004) (en banc)).
---------------------------------------------------------------------------
At the other end of the spectrum, the Ninth Circuit deems the
prejudice requirement satisfied so long as an individual can show
``plausible grounds for relief'' on the underlying claim. See United
States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011)
(stating that ``to show `plausible grounds' for relief, an alien must
show that, in light of the factors relevant to the form of relief being
sought, and based on the `unique circumstances of [the alien's] own
case,' it was plausible (not merely conceivable) that the [immigration
judge] would have exercised his discretion in the alien's favor'')
(first brackets in original) (quoting United States v. Corrales-
Beltran, 192 F.3d 1311, 1318 (9th Cir. 1999)); Mohammed v. Gonzales,
400 F.3d 785, 794 (9th Cir. 2005).
The Department has determined that using a prejudice standard
modeled after Strickland would strike a proper balance between
providing individuals with a reasonable opportunity to reopen
proceedings based upon a meritorious ineffective assistance claim and
safeguarding the finality of immigration proceedings. The proposed
regulations would therefore provide that to succeed on an ineffective
assistance of counsel claim, an individual needs to establish that
``there is a reasonable probability that, but for counsel's ineffective
assistance, the result of the proceeding would have been different.''
\11\ As mentioned above, several circuits have adopted this standard,
which presents a middle ground among the standards adopted by the
various circuits. Furthermore, as the Supreme Court has deemed a
``reasonable probability'' standard sufficient in the context of Sixth
Amendment criminal cases, the Department considers the standard to be
more than sufficient to use in the context of civil, administrative
immigration proceedings.
---------------------------------------------------------------------------
\11\ This proposed rule would not provide that certain
circumstances require a finding of per se prejudice. See generally
Matter of Assaad, 23 I&N Dec. at 562 (rejecting the argument that
the Board should apply a per se standard of prejudice to a counsel's
failure to file an appeal in immigration proceedings); cf. Siong v.
INS, 376 F.3d 1030, 1037 (9th Cir. 2004) (applying a rebuttable
presumption of prejudice where counsel's error deprived an
individual of any appeal in immigration proceedings). Rather, each
case would rest on its own particulars, with the recognition that
some conduct will more typically indicate prejudice, but that the
individual filing the motion always carries the burden to establish
that prejudice does in fact exist. As discussed in section G,
however, an individual would not be required to establish prejudice
in order to reopen in absentia proceedings.
---------------------------------------------------------------------------
Proposed Sec. 1003.48(a)(3) would provide that eligibility for
relief arising after proceedings have concluded ordinarily has no
bearing on the prejudice determination. Cf. Strickland, 466 U.S. at 696
(stating that ``a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors''). There are
exceptions to this general statement, however. For example, where a
Form I-130, Petition for Alien Relative, has been filed with United
States Citizenship and Immigration Services (USCIS) at DHS on behalf of
an individual in removal proceedings, it may, in some instances,
constitute ineffective assistance if counsel fails to request that the
immigration judge continue the proceedings to await the adjudication of
the petition. Cf. Matter of Hashmi, 24 I&N Dec. 785, 787-94 (BIA 2009)
(articulating the factors for an immigration judge to consider in
determining whether to continue removal proceedings pending USCIS's
adjudication of an immigrant visa petition). If counsel acted
ineffectively by failing to request a continuance, and the immigration
judge ordered the individual removed but USCIS subsequently granted the
petition, it would be appropriate to consider the individual's
eligibility for adjustment of status in deciding whether he or she was
prejudiced. That is, had the proceedings been continued, the result of
the proceedings may have been different as the individual may have been
able to apply for adjustment of status while they were ongoing. The
Department seeks the public's comments on this issue, including on
whether the reference to eligibility for relief arising after
proceedings have concluded should be omitted from the final rule given
the exception noted above.
The exact type of evidence that would suffice to establish a
``reasonable probability'' would be dependent upon the particular
circumstances of a given case. The individual filing the motion would
bear the burden, however, to show a reasonable probability that, but
for counsel's ineffective assistance, the result of the proceeding
would have been different. The individual filing the motion should
submit any necessary evidence to establish prejudice, including
affidavits or sworn statements from witnesses who were not previously
called to testify or whose testimony was adversely impacted by the
ineffectiveness of counsel, copies of vital documents that were not
submitted in a timely manner, persuasive legal arguments that should
have been included in missing or deficient briefs, missing applications
for relief with supporting evidence, and any other evidence that serves
to undermine the decision-maker's confidence in the outcome of the
case. See generally Strickland, 466 U.S. at 694 (describing the manner
in which the effect of alleged ineffective assistance of counsel on the
reliability of a previous proceeding should be analyzed).
The Department notes that proposed Sec. 1003.48 would provide two
deviations from the ``reasonable probability'' standard. First, the
rule would provide at Sec. 1003.48(c)(3) that an individual is
prejudiced by counsel's failure to file a petition for review with a
Federal circuit court of appeals if he or she had ``plausible grounds
for relief'' before the court. To establish that he or she was so
prejudiced, the individual filing the motion must explain, with
reasonable specificity, the ground or grounds for the petition. Neither
the adjudicators nor opposing counsel should be expected to speculate
as to what issues the individuals would have raised on appeal. The
requirement that the ground or grounds for the petition for review must
be explained ``with reasonable specificity'' would allow adjudicators
to consider the filing party's sophistication in deciding whether
prejudice has been established. In the Department's view, while some
unrepresented individuals may explain the ground or grounds for appeal
in general terms, attorneys and accredited representatives should
explain, in detail, the factual and legal bases for appeal.
As discussed in section C of this preamble, for a motion based on
counsel's failure to file a petition for review to be granted, the
individual filing the motion would first have to establish that his or
her prior counsel's conduct was ineffective within the scope of the
counsel's representation. If the individual does not do so, the Board
could deny the motion without addressing the issue of prejudice.
The second deviation from the ``reasonable probability'' standard
is with respect to motions to reopen in absentia proceedings. As
discussed in section G of this preamble, the rule would provide that an
individual filing a motion is not required to establish
[[Page 49567]]
prejudice in order to reopen in absentia proceedings.
F. Equitable Tolling and the Due Diligence Standard in Proposed Sec.
1003.48
As discussed above, motions to reopen based upon a claim of
ineffective assistance of counsel must be filed in accordance with the
general requirements for motions provided in section 240(c)(7) of the
Act and Sec. Sec. 1003.2 and 1003.23 of the regulations. With a few
exceptions noted in the regulations, motions to reopen must be filed
within either 90 days or 180 days of the date of entry of a final
administrative order of removal or deportation. In general, a motion to
reopen must be filed within 90 days of the date of entry of a final
order A motion to reopen proceedings to rescind an order of removal or
deportation entered in absentia must be filed within 180 days of the
order, however, if the motion alleges that the failure to appear was
because of exceptional circumstances.
Every circuit court of appeals to have addressed the issue has
recognized that equitable tolling may apply to untimely motions to
reopen in some instances.\12\ See, e.g., Kuusk v. Holder, 732 F.3d 302,
305 (4th Cir. 2013); Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357,
1362-65 (11th Cir. 2013) (en banc) (per curiam); Barry, 524 F.3d at
724; Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008); Zhao v.
INS, 452 F.3d 154, 156-57 (2d Cir. 2006); Mahmood v. Gonzales, 427 F.3d
248, 251 (3d Cir. 2005); Hernandez-Moran v. Gonzales, 408 F.3d 496,
499-500 (8th Cir. 2005); Riley v. INS, 310 F.3d 1253, 1257-58 (10th
Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176, 1187-93 (9th Cir.
2001) (en banc). However, as some of these courts have noted,
``[e]quitable tolling is an extraordinary remedy which should be
extended only sparingly[.]'' Mahmood, 427 F.3d at 253 (first brackets
in original) (internal quotation marks omitted); see also Kuusk, 732
F.3d at 306 (adhering ``to the general principle that equitable tolling
will be granted `only sparingly,' not in `a garden variety claim of
excusable neglect' '') (quoting Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990)); Hernandez-Moran, 408 F.3d at 499-500 (``
`[E]quitable tolling is granted sparingly. Extraordinary circumstances
far beyond the litigant's control must have prevented timely filing.'
'') (brackets in original) (quoting United States v. Marcello, 212 F.3d
1005, 1010 (7th Cir. 2000)).
---------------------------------------------------------------------------
\12\ As noted above, equitable tolling refers to ``[t]he
doctrine that the statute of limitations will not bar a claim if the
plaintiff, despite diligent efforts, did not discover the injury
until after the limitations period had expired.'' Black's Law
Dictionary 579 (8th ed. 2004).
---------------------------------------------------------------------------
The First Circuit has not yet decided the applicability of
equitable tolling to the filing deadlines for motions to reopen based
upon ineffective assistance of counsel, but has assumed without
deciding that tolling is available. See Neves, 613 F.3d at 36 (stating
that ``[w]e assume arguendo, but do not decide, that the time and
number limits on motions to reopen are subject to equitable tolling'').
The Fifth Circuit similarly has not decided this question. See Reyes-
Bonilla v. Lynch, 616 F. App'x 193, 194 (5th Cir. 2015) (unpublished)
(noting that ``even if the immigration statutes are subject to
equitable tolling, Reyes-Bonilla has failed to show that such tolling
would apply'').
In those circuits that have held that equitable tolling of the
filing deadlines applies, the courts have differed on the precise
standard for due diligence. The Board has not adopted a uniform
approach to due diligence, instead applying the law of the circuit in
which the motion was filed. See, e.g., Yuan Gao, 519 F.3d at 379. For
example, the Ninth Circuit has found that the filing deadlines are
equitably tolled ``until the petitioner `definitively learns' of
counsel's fraud,'' although the petitioner must of course demonstrate
that he or she exercised due diligence prior to this point as well.
Singh, 491 F.3d at 1096 (citing Albillo-DeLeon v. Gonzales, 410 F.3d
1090, 1100 (9th Cir. 2005)); see also Ghahremani v. Gonzales, 498 F.3d
993, 999-1000 (9th Cir. 2007). The Second Circuit's due diligence
analysis focuses on when the ineffective assistance ``[was], or should
have been, discovered by a reasonable person in the situation.''
Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). The Seventh Circuit
has stated that ```[e]quitable tolling requires a court to consider
whether a reasonable person in the plaintiff's position would have been
aware of the possibility that he had suffered' an injury.'' Patel, 442
F.3d at 1016 (quoting Beamon v. Marshall & Ilsley Trust Co., 411 F.3d
854, 860-61 (7th Cir. 2005) (emphasis in original)). The Seventh
Circuit has also held that when an individual learns of the ineffective
assistance before the expiration of the statutory filing period and
fails to explain why he or she was unable to file the motion within the
statutory filing period, equitable tolling is not available and will
not ``reset the clock.'' Yuan Gao, 519 F.3d at 379 (finding that the
individual filing the motion had ``failed to point to any circumstances
that made this the abnormal case in which a diligent attempt to comply
with the 90-day deadline would have failed, in which event an appeal to
equitable tolling would lie''). The Ninth Circuit, by contrast, has
held that equitable tolling may in fact have the effect of resetting
the statute of limitations period. See Socop-Gonzalez, 272 F.3d at 1196
(``[W]e need only ask whether Socop filed within the limitations period
after tolling is taken into account.'').
With respect to the due diligence standard, some courts have
emphasized that the individual filing the motion has a duty to
investigate whether his or her counsel is ineffective. See, e.g.,
Rashid v. Mukasey, 533 F.3d 127, 132-133 n.3 (2d Cir. 2008) (``[A]n
alien who is unfamiliar with the technicalities of immigration law can,
under certain circumstances, be expected to comprehend that he has
received ineffective assistance without being explicitly told so by an
attorney . . . . Even someone not schooled in the technicalities of the
law `should have' recognized, under the[ ] circumstances [of this
case], that his attorney was ineffective.''); see also Singh, 491 F.3d
at 1096-97 (finding that the individual filing the motion was not
eligible for equitable tolling because he failed to investigate whether
his attorney was ineffective).
There are also other considerations. Some circuits, such as the
Second Circuit, have found that due diligence is required in both
discovering the ineffectiveness and taking appropriate action upon
discovery. See, e.g., Rashid, 533 F.3d at 132 (noting that ``an alien
is required to exercise due diligence both before and after he has or
should have discovered ineffective assistance of counsel'') (emphasis
in original); see also Wang v. Board of Immigration Appeals, 508 F.3d
710, 715 (2d Cir. 2007) (noting that an individual filing a motion
``bears the burden of proving that he has exercised due diligence in
the period between discovering the ineffectiveness of his
representation and filing the motion to reopen''). Other courts have
similarly required that the motion to reopen must be filed within a
reasonable time of discovering the ineffective assistance. See, e.g.,
Tapia-Martinez v. Gonzales, 482 F.3d 417, 423-24 (6th Cir. 2007)
(finding that the individual filing the motion did not exercise due
diligence because she filed the motion to reopen more than fifteen
months after discovering her prior counsel's ineffectiveness); see also
Pafe v. Holder, 615 F.3d 967, 969 (8th Cir. 2010) (finding that,
despite existence of fraud and deception by prior attorneys, the Board
did not abuse its discretion in
[[Page 49568]]
denying a motion to reopen to rescind in absentia removal proceedings
where the individual waited nearly six years to file the motion); Jobe
v. INS, 238 F.3d 96, 100-01 (1st Cir. 2001) (en banc) (declining to
find due diligence where an individual waited to file a motion to
reopen to rescind an in absentia order more than half a year after he
``learned that an [immigration judge] had taken some action on his
asylum application and was advised to consult an attorney
immediately'').
The Department has determined that it may be appropriate in certain
circumstances for an immigration judge or the Board to equitably toll
the filing deadlines in section 240(c)(7) of the Act and Sec. Sec.
1003.2 and 1003.23 of the regulations where the basis of the motion is
a claim of ineffective assistance of counsel.\13\ Accordingly, the
proposed rule would provide, at Sec. 1003.48(d), that these filing
deadlines shall be tolled if a motion to reopen is based upon a claim
of ineffective assistance of counsel, the ineffective assistance
prevented the timely filing of the motion, and the individual filing
the motion exercised due diligence in discovering the ineffective
assistance. Specifically, the proposed rule would provide that, if an
individual exercised due diligence in discovering the ineffective
assistance, he or she has 90 days after discovering the ineffective
assistance to file the motion to reopen. This 90-day filing period
would apply to all motions to reopen based on ineffective assistance of
counsel, including motions to reopen to rescind an in absentia order
based on exceptional circumstances arising from a claim of ineffective
assistance of counsel. The proposed rule would provide that an
individual exercises due diligence if he or she discovers the
ineffective assistance within the time it should have been discovered
by a reasonable person in his or her position. The Department notes
that equitable tolling would not shorten the filing deadlines set out
in Sec. Sec. 1003.2 and 1003.23.
---------------------------------------------------------------------------
\13\ The Department notes that there are other regulations
governing special motions to reopen for suspension of deportation
and cancellation of removal pursuant to section 203(c) of the
Nicaraguan Adjustment and Central American Relief Act (NACARA) (Pub.
L. 105-100, tit. II) and section 1505(c) of the LIFE Act Amendments
of 2000 (Pub. L. 106-554, tit. XV). See 8 CFR 1003.43. In addition,
there are regulations governing special motions to seek relief under
former section 212(c) of the Act. See 8 CFR 1003.44. The Department
notes that there may be circuit law addressing the applicability of
equitable tolling to the filing deadlines of these special motions
to reopen. See, e.g., Albillo-De Leon, 410 F.3d at 1098 (finding
that section 203(c) of NACARA is subject to equitable tolling);
Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007) (declining,
for lack of due diligence, to equitably toll the deadline for filing
a motion to reopen to apply for relief under former section 212(c)
of the Act). This proposed rule would not address whether
ineffective assistance of counsel may be a basis to toll the filing
deadlines of these special motions. The Department welcomes comment
from the public regarding whether ineffective assistance of counsel
should be a basis for tolling the filing deadlines of these special
motions and whether the proposed rule should be expanded to cover
those situations.
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The Department recognizes that some motions to rescind in absentia
orders and reopen proceedings are not subject to time limitations. See,
e.g., Matter of Bulnes, 25 I&N Dec. 57, 59 (BIA 2009) (motions to
reopen to rescind in absentia orders where the individual demonstrates
he or she did not receive notice); Matter of Cruz-Garcia, 22 I&N Dec.
1155, 1157-59 (BIA 1999) (deportation proceedings under former section
242(b) of the Act); Matter of N-B-, 22 I&N Dec. 590, 591-93 (BIA 1999)
(exclusion proceedings). We are soliciting comments on whether the
requirements of this new rule should be applied to motions to reopen
filed in such cases on the basis of a claim of ineffective assistance
of counsel.
As discussed above, there is variation among the courts of appeals
regarding the exact standard for determining that an individual
exercised due diligence in discovering ineffective assistance of
counsel. While eligibility for equitable tolling will depend upon the
particulars of the case, the Department seeks to promote uniformity in
the due diligence standard. As such, the Department considered various
standards of the courts of appeals for evaluating due diligence. For
example, the Department considered standards requiring the immigration
judge or the Board to determine when the individual filing the motion,
acting with due diligence, definitively learned of the ineffective
assistance of counsel,\14\ or to evaluate when a reasonable person in
that individual's position would have been aware of the possibility
that he or she had been prejudiced by counsel's conduct.\15\ After
review of the case law discussed above, the Department is proposing to
include a standard for evaluating due diligence that would require the
immigration judge or the Board to determine when the ineffective
assistance should have been discovered by a reasonable person in the
individual's position. This standard is consistent with the Second
Circuit's case law discussed above,\16\ as well as the ``discovery
rule'' used in certain non-immigration cases to determine when a claim
has accrued such that the statute of limitations begins to run.\17\
---------------------------------------------------------------------------
\14\ See Singh, 491 F.3d at 1096.
\15\ See Patel, 442 F.3d at 1016.
\16\ See Iavorski, 232 F.3d at 134.
\17\ Depending upon the type of case, jurisdiction, and
applicable exceptions, the ``discovery rule'' permits an individual
to file a suit in a civil case within a certain period of time after
the injury is discovered, or reasonably should have been discovered.
See, e.g., Black's Law Dictionary 499 (8th ed. 2004) (defining the
discovery rule as ``[t]he rule that a limitations period does not
begin to run until the plaintiff discovers (or reasonably should
have discovered) the injury giving rise to the claim'').
---------------------------------------------------------------------------
The evidence required for demonstrating due diligence would vary
from case to case. However, to establish due diligence, an individual
would ordinarily have to present evidence that he or she timely
inquired about his or her immigration status and the progress of his or
her case.
The Department welcomes comments from the public on the
appropriateness of including the remedy of equitable tolling and the
proposed standard for assessing due diligence in the rule.
G. Effect of Proposed Sec. 1003.48 on Motions To Reopen and To Rescind
an Order of Removal, Deportation, or Exclusion Entered in Absentia
The proposed rule would add a cross-reference to new Sec. 1003.48
in the regulations governing motions to reopen proceedings and rescind
orders of removal, deportation, or exclusion entered in absentia. An
order of removal entered in absentia in removal proceedings pursuant to
section 240(b)(5) of the Act may be rescinded upon a motion to reopen
filed within 180 days after the date of the order, if the individual
filing the motion demonstrates that the failure to appear was because
of exceptional circumstances as defined in section 240(e)(1) of the
Act. An order of exclusion entered in absentia may be rescinded upon a
motion to reopen filed at any time if the individual demonstrates
reasonable cause for his or her failure to appear. The standard for
rescinding orders of deportation entered in absentia varies. Orders
subject to section 240(b)(5) of the Act may be rescinded upon a motion
filed within 180 days of the order if the individual demonstrates that
the failure to appear was because of exceptional circumstances beyond
his or her control.\18\ Orders subject to a provision of the INA in
effect before June 13, 1992, may be rescinded upon a motion filed
[[Page 49569]]
at any time if the individual demonstrates reasonable cause for his or
her failure to appear. See Matter of Cruz-Garcia, 22 I&N Dec. at 1157-
59.
---------------------------------------------------------------------------
\18\ In addition, removal and deportation orders entered in
absentia may be rescinded upon a motion filed at any time when the
individual filing the motion demonstrates that he or she did not
receive the requisite notice, or that he or she was in Federal or
State custody and the failure to appear was through no fault of the
individual. See INA 240(b)(5)(C)(ii).
---------------------------------------------------------------------------
As has been established in Board precedent, this rule would provide
that an individual may establish exceptional circumstances or
reasonable cause, whichever is applicable, by demonstrating that the
failure to appear was due to ineffective assistance of counsel. See
Matter of Grijalva, 21 I&N Dec. 472, 473-74 (BIA 1996); see also Matter
of Rivera, 21 I&N Dec. at 602. In establishing exceptional
circumstances or reasonable cause based upon ineffective assistance of
counsel, an individual would generally have to comply with the
requirements for motions provided in new Sec. 1003.48. However,
consistent with the Board's longstanding practice, that individual
would not be required to establish that he or she was prejudiced. See
Matter of Grijalva, 21 I&N Dec. at 473 n.2; see also Matter of Rivera,
21 I&N Dec. at 603 n.1.
As discussed above, the rule would also permit equitable tolling of
the time limitations on filing of motions to reopen and rescind an in
absentia order. Provided that the individual establishes that he or she
exercised due diligence in discovering his or her counsel's
ineffectiveness, the individual would have 90 days from when the
ineffective assistance was discovered to file a motion to reopen and
rescind an in absentia order.\19\ The Department notes that equitable
tolling does not shorten the filing deadlines set out in Sec. Sec.
1003.2 and 1003.23.
---------------------------------------------------------------------------
\19\ But see supra note 13.
---------------------------------------------------------------------------
IV. Ineffective Assistance of Counsel and the Asylum One-Year Filing
Deadline
The Department and DHS have independent roles and authorities with
respect to the adjudication of applications for asylum under section
208 of the Act. As a general matter, DHS asylum officers have authority
to adjudicate affirmative asylum applications filed with USCIS, while
the immigration judges in EOIR have authority to adjudicate the asylum
applications of individuals who are the subject of proceedings before
EOIR. Under section 208(a)(2)(D) of the Act, an application for asylum
may be considered despite the fact that it was not filed within one
year of the applicant's arrival in the United States where he or she
establishes ``extraordinary circumstances'' relating to the delay in
filing of the application. The regulations of EOIR and DHS provide a
non-exclusive list of situations that could fall within the
extraordinary circumstances definition and specifically provide that a
claim of ineffective assistance of counsel may constitute extraordinary
circumstances excusing an applicant's failure to timely file an
application for asylum. See 8 CFR 208.4(a)(5)(iii), 1208.4(a)(5)(iii).
This rule proposes to amend the EOIR asylum regulations at 8 CFR
1208.4(a)(5) to incorporate some of the language used in the motion to
reopen provisions in proposed Sec. 1003.48 for extraordinary
circumstances claims based upon a claim of ineffective assistance of
counsel. The provisions of the rule addressing the one-year deadline
for filing for asylum will apply upon the effective date of the final
rule.
The Department notes that this rule proposes to amend only the EOIR
asylum regulations in 8 CFR 1208.4.
V. Regulatory Requirements
A. Regulatory Flexibility Act
The Department has reviewed this regulation in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that
this rule will not have a significant economic impact on a substantial
number of small entities. The rule will not regulate ``small
entities,'' as that term is defined in 5 U.S.C. 601(6).
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
D. Executive Orders 12866 and 13563
The proposed rule is considered by the Department to be a
``significant regulatory action'' under section 3(f)(4) of Executive
Order 12866. Accordingly, the regulation has been submitted to the
Office of Management and Budget (OMB) for review. The Department
certifies that this regulation has been drafted in accordance with the
principles of Executive Order 12866, section 1(b), and Executive Order
13563. Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility.
The Department believes that this proposed rule would provide
significant net benefits relating to EOIR proceedings. See Executive
Order 12866(b)(6) (stating that ``[e]ach agency shall assess both the
costs and the benefits of the intended regulation and, recognizing that
some costs and benefits are difficult to quantify, propose or adopt a
regulation only upon a reasoned determination that the benefits of the
intended regulation justify its costs''). The proposed rule would help
ensure the fairness and integrity of these proceedings by setting out a
standard set of requirements for reopening proceedings, allowing for
reopening where an individual was genuinely subjected to ineffective
assistance of counsel and suffered prejudice as a result. The
Department is unaware of any monetary costs on public entities that the
rule would impose. Further, the Department does not believe that,
broadly speaking, the proposed rule could be said to burden the parties
in EOIR proceedings, as the rule simply changes an adjudicatory
standard used in those proceedings, generally striking a middle ground
between the circuit courts' approaches.\20\
---------------------------------------------------------------------------
\20\ For example, as noted above, the proposed rule's standard
for establishing prejudice would be more lenient than the Sixth
Circuit's current standard but stricter than the Ninth Circuit's.
The proposed rule would provide at Sec. 1003.48(a)(3) that, for an
individual to establish that he or she was prejudiced by counsel's
ineffective assistance, the individual must show that ``there is a
reasonable probability that, but for counsel's ineffective
assistance, the result of the proceeding would have been
different.'' Currently, the Sixth Circuit requires an individual to
``establish that, but for the ineffective assistance of counsel, he
would have been entitled to continue residing in the United
States.'' Sako, 434 F.3d at 864. However, the Ninth Circuit simply
requires an individual to show that he or she ``had plausible
grounds for . . . relief.'' Barajas-Alvarado, 655 F.3d at 1089
(quotation omitted).
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[[Page 49570]]
E. Executive Order 13132: Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration.
Accordingly, for the reasons set forth in the preamble, the
Attorney General is proposing to amend title 8, chapter V of the Code
of Federal Regulations as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301, 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953, Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Section 1003.23 is amended by adding a new paragraph (b)(4)(v), to
read as follows:
Sec. 1003.23 Reopening or reconsideration before the Immigration
Court.
* * * * *
(b) * * *
(4) * * *
(v) Motions to reopen and rescind an in absentia order based upon a
claim of ineffective assistance of counsel. A motion to reopen
proceedings and rescind an in absentia order of removal, deportation,
or exclusion is subject to the requirements for such motions under
paragraph (b)(4)(ii) or (b)(4)(iii)(A) of this section and Sec.
1003.48. For a motion to reopen proceedings and rescind an in absentia
order of removal, deportation, or exclusion, the alien may establish
exceptional circumstances or other appropriate legal standards to
reopen proceedings based upon a claim of ineffective assistance of
counsel. The alien does not need to establish prejudice in order to
reopen proceedings and rescind an order of removal, deportation, or
exclusion entered in absentia based upon a claim of ineffective
assistance of counsel. Deadlines for motions to reopen and rescind an
in absentia order based upon a claim of ineffective assistance of
counsel may be equitably tolled pursuant to Sec. 1003.48(d). The term
``counsel,'' as used in this subsection, only applies to the conduct of
an attorney or an accredited representative as defined in part 1292, or
a person whom the alien reasonably but erroneously believed to be an
attorney or an accredited representative and who was retained to
represent the alien in proceedings.
* * * * *
0
3. Add Sec. 1003.48 to subpart A to read as follows:
Sec. 1003.48 Reopening based upon a claim of ineffective assistance
of counsel.
(a) Standard for adjudication. Except as provided in this section,
a motion to reopen proceedings before the Board or an immigration judge
based upon a claim of ineffective assistance of counsel will be
adjudicated in accordance with section 240(c)(7) of the Act and the
applicable regulations governing motions at Sec. Sec. 1003.2 and
1003.23. The individual filing the motion must demonstrate that
counsel's conduct was ineffective and prejudiced the individual.
(1) Conduct covered. Except as provided in paragraph (c) of this
section, this section covers conduct that occurred while removal,
deportation, or exclusion proceedings were pending before the Board or
an immigration judge. The term ``counsel,'' as used in this section,
only applies to the conduct of:
(i) An attorney or an accredited representative as defined in part
1292; or
(ii) A person whom the individual filing the motion reasonably but
erroneously believed to be an attorney or an accredited representative
and who was retained to represent him or her in the proceedings before
the Board or an immigration judge.
(2) Standard for evaluating counsel's ineffectiveness. A counsel's
conduct constitutes ineffective assistance of counsel if the conduct
was unreasonable, based on the facts of the particular case, viewed as
of the time of the conduct.
(3) Standard for evaluating prejudice. Except as provided in
paragraph (c)(3) of this section, in evaluating whether an individual
has established that he or she was prejudiced by counsel's conduct, the
Board or the immigration judge shall determine whether there is a
reasonable probability that, but for counsel's ineffective assistance,
the result of the proceeding would have been different. Eligibility for
relief occurring after the conclusion of proceedings will ordinarily
have no bearing on the determination of whether the individual was
prejudiced during the course of proceedings.
(b) Form, contents, and procedure for filing a motion to reopen
based upon a claim of ineffective assistance of counsel. A motion to
reopen under this section must be filed in accordance with section
240(c)(7) of the Act or other applicable statutory provisions, and the
applicable regulations at Sec. Sec. 1003.2 and 1003.23 governing
motions to reopen. The motion must include the following items to
support the claim of ineffective assistance of counsel:
(1) Affidavit or written statement. (i) The individual filing the
motion must, in every case, submit an affidavit, or a written statement
executed under the penalty of perjury as provided in 28 U.S.C. 1746,
setting forth in detail the agreement that was entered into with
counsel with respect to the actions to be taken by counsel and what
representations counsel did or did not make to the individual in this
regard. If the individual submits a written statement not executed
under the penalty of perjury, the Board or the immigration judge may,
in an exercise of discretion committed exclusively to the agency,
excuse the requirement that the written statement must be executed
under the penalty of perjury, if:
(A) There are compelling reasons why the written statement was not
executed under the penalty of perjury; and
[[Page 49571]]
(B) The motion is accompanied by other evidence independently
establishing that the individual was subject to ineffective assistance
of counsel and suffered prejudice as a result.
(ii) In addition, the individual filing the motion must submit a
copy of any applicable representation agreement in support of the
affidavit or written statement. If no representation agreement is
provided, the individual must explain its absence in the affidavit or
written statement and provide any reasonably available evidence on the
scope of the agreement and the reason for its absence. The Board or an
immigration judge may, in an exercise of discretion committed
exclusively to the agency, excuse failure to provide any applicable
representation agreement in support of the affidavit or written
statement if the individual establishes that there are compelling
reasons for the failure to provide the representation agreement and he
or she presents other reasonably available evidence regarding the
agreement made with counsel.
(2) Notice to counsel. The individual filing the motion must
provide evidence that he or she informed counsel whose representation
is claimed to have been ineffective of the allegations leveled against
that counsel and that a motion to reopen alleging ineffective
assistance of counsel will be filed on that basis. The individual must
provide evidence of the date and manner in which he or she provided
notice to prior counsel and include a copy of the correspondence sent
to the prior counsel and the response from the prior counsel, if any,
or state that no such response was received. The requirement that the
individual provide a copy of any response from prior counsel continues
until such time as a decision is rendered on the motion to reopen. The
Board or an immigration judge may, in an exercise of discretion
committed exclusively to the agency, excuse failure to provide the
required notice if the individual establishes that there are compelling
reasons why he or she was unable to notify the prior counsel.
(3) Complaint filed with the appropriate disciplinary authorities.
The individual filing the motion must file a complaint with the
appropriate disciplinary authorities with respect to any violation of
counsel's ethical or legal responsibilities, and provide a copy of that
complaint and any correspondence from such authorities. The Board or an
immigration judge may, in an exercise of discretion committed
exclusively to the agency, excuse the failure to file a complaint if
the individual establishes that there are compelling reasons why he or
she was unable to notify the appropriate disciplinary authorities. The
fact that counsel has already been disciplined, suspended from the
practice of law, or disbarred does not, on its own, excuse the
individual from filing the required disciplinary complaint. The
appropriate disciplinary authorities are as follows:
(i) With respect to attorneys in the United States: The licensing
authority of a state, possession, territory, or Commonwealth of the
United States, or of the District of Columbia that has licensed the
attorney to practice law.
(ii) With respect to accredited representatives: The EOIR
disciplinary counsel pursuant to Sec. 1003.104(a).
(iii) With respect to a person whom the individual reasonably but
erroneously believed to be an attorney or an accredited representative
and who was retained to represent him or her in proceedings: The
appropriate Federal, State, or local law enforcement agency with
authority over matters relating to the unauthorized practice of law or
immigration-related fraud.
(4) Prejudice. Except as provided in Sec. 1003.23(b)(4)(v), the
individual filing the motion shall establish that he or she was
prejudiced by counsel's conduct. The standard for prejudice is set
forth in paragraph (a)(3) of this section, except as provided in
paragraph (c)(3) of this section. The Board or an immigration judge
shall not waive the requirement to establish prejudice.
(c) Claims of ineffective assistance of counsel based upon conduct
occurring after entry of a final order of removal, deportation, or
exclusion. (1) Scope of review. After entry of a final order of
removal, deportation, or exclusion, the Board has discretion pursuant
to Sec. Sec. 1003.2 and 1003.48 to reopen removal, deportation, or
exclusion proceedings based upon counsel's failure to file a timely
petition for review in the Federal court of appeals. Such discretion,
however, shall not extend to other claims based upon counsel's conduct
before another administrative or judicial body. Except as described in
paragraph (c)(3) of this section, a motion to reopen based upon
counsel's failure to file a timely petition for review in the Federal
court of appeals must meet the requirements set forth in paragraph (b)
of this section.
(2) Establishing ineffective assistance. To establish that counsel
provided ineffective assistance, an individual seeking to reopen
removal, deportation, or exclusion proceedings based upon counsel's
failure to file a timely petition for review in the Federal court of
appeals must establish that counsel had agreed to file a petition for
review but failed to do so. For the individual to meet this burden, he
or she must submit a representation agreement making clear that the
scope of counsel's representation included the filing of a petition for
review, or must otherwise establish that the scope of the
representation included the filing of a petition for review.
(3) Establishing prejudice. An individual is prejudiced by
counsel's failure to file a petition for review with a Federal circuit
court of appeals if he or she had plausible ground for relief before
the court. To establish that he or she was so prejudiced, the
individual filing the motion must explain, with reasonable specificity,
the ground or grounds for the petition.
(d) Due diligence and equitable tolling. (1) The time limitations
set forth in Sec. Sec. 1003.2 and 1003.23 shall be tolled if:
(i) The motion to reopen is based upon a claim of ineffective
assistance of counsel;
(ii) The individual filing the motion has established that he or
she exercised due diligence in discovering the ineffective assistance
of counsel; and
(iii) The motion is filed within 90 days after the individual
discovered the ineffective assistance of counsel.
(2) In evaluating whether an individual has established that he or
she has exercised due diligence, the standard is when the ineffective
assistance should have been discovered by a reasonable person in the
individual's position.
(e) Applicability date. This section applies only to motions filed
on or after [effective date of final rule].
* * * * *
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
4. The authority for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1225, 1231, 1282.
0
5. Section 1208.4 is amended by revising paragraphs (a)(5)(iii)(A),
(B), and (C) and adding paragraph (a)(5)(iii)(D) to read as follows:
Sec. 1208.4 Filing the application.
* * * * *
(a) * * *
(5) * * *
(iii) * * *
(A) The applicant files an affidavit, or a written statement
executed under the penalty of perjury as provided in 28 U.S.C. 1746,
setting forth in detail the agreement that was entered into with
counsel with respect to the actions to be
[[Page 49572]]
taken by counsel and what representations counsel did or did not make
to the applicant in this regard. If the applicant submits a written
statement not executed under the penalty of perjury, the Board or the
immigration judge may, in an exercise of discretion committed
exclusively to the agency, excuse the requirement that the written
statement must be executed under the penalty of perjury, if there are
compelling reasons why the written statement was not executed under the
penalty of perjury, and the applicant submits other evidence
establishing that he or she was subject to ineffective assistance of
counsel and suffered prejudice as a result. In addition, in all cases,
the applicant must either submit a copy of any applicable
representation agreement in support of the affidavit or written
statement or explain its absence in the affidavit or written statement.
Failure to provide any applicable representation agreement in support
of the affidavit or written statement may be excused, in an exercise of
discretion committed exclusively to the agency, if the applicant
establishes that there are compelling reasons that he or she was unable
to provide any representation agreement.
(B) The applicant provides evidence that he or she informed counsel
whose representation is claimed to have been ineffective of the
allegations leveled against him or her. The applicant must provide
evidence of the date and manner in which he or she provided notice to
his or her prior counsel; and include a copy of the correspondence sent
to the prior counsel and the response from the prior counsel, if any,
or state that no such response was received. Failure to provide the
required notice to counsel may be excused, in an exercise of discretion
committed exclusively to the agency, if the applicant establishes that
there are compelling reasons why he or she was unable to notify
counsel.
(C) The applicant files and provides a copy of the complaint filed
with the appropriate disciplinary authorities with respect to any
violation of counsel's ethical or legal responsibilities, and any
correspondence from such authorities. Failure to provide the complaint
may be excused, in an exercise of discretion committed exclusively to
the agency, if the applicant establishes that there were compelling
reasons why he or she was unable to notify the appropriate disciplinary
authorities. The fact that counsel has already been disciplined,
suspended from the practice of law, or disbarred does not, on its own,
excuse the applicant from filing the required disciplinary complaint.
The appropriate disciplinary authorities are as follows:
(1) With respect to attorneys in the United States: The licensing
authority of a State, possession, territory, or Commonwealth of the
United States, or of the District of Columbia that has licensed the
attorney to practice law.
(2) With respect to accredited representatives: The EOIR
disciplinary counsel pursuant to Sec. 1003.104(a).
(3) With respect to a person whom the applicant reasonably but
erroneously believed to be an attorney or an accredited representative
and who was retained to represent him or her in proceedings before the
immigration courts and the Board: The appropriate Federal, State or
local law enforcement agency with authority over matters relating to
the unauthorized practice of law or immigration-related fraud.
(D) The term ``counsel,'' as used in this paragraph (a)(5)(iii),
only applies to the conduct of an attorney or an accredited
representative as defined in part 1292 of this chapter, or a person
whom the applicant reasonably but erroneously believed to be an
attorney or an accredited representative and who was retained to
represent him or her in proceedings before the immigration courts and
the Board.
* * * * *
Dated: July 19, 2016.
Loretta Lynch,
Attorney General.
[FR Doc. 2016-17540 Filed 7-27-16; 8:45 am]
BILLING CODE 4410-30-P