81 FR 49556 - Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review Federal Register Volume 81, Issue 145 (July 28, 2016)
Executive Office for Immigration Review
Federal Register Volume 81, Issue 145 (July 28, 2016)
| Page Range | 49556-49572 | |
| FR Document | 2016-17540 |
[Federal Register Volume 81, Number 145 (Thursday, July 28, 2016)] [Proposed Rules] [Pages 49556-49572] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-17540] ======================================================================== 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. ======================================================================== 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. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- [[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). --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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).'' --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- [[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
![49556
Proposed Rules Federal Register
Vol. 81, No. 145
Thursday, July 28, 2016
This section of the FEDERAL REGISTER midnight Eastern Time on the last day of your comment and identify what
contains notices to the public of the proposed of the comment period. information you want redacted.
issuance of rules and regulations. The • Mail: Jean King, General Counsel, If you want to submit confidential
purpose of these notices is to give interested Office of the General Counsel, Executive business information as part of your
persons an opportunity to participate in the Office for Immigration Review, 5107 comment, but do not want it to be
rule making prior to the adoption of the final posted online, you must include the
Leesburg Pike, Suite 2600, Falls Church,
rules.
VA 22041. To ensure proper handling, phrase ‘‘CONFIDENTIAL BUSINESS
please reference EOIR Docket No. 170P INFORMATION’’ in the first paragraph
DEPARTMENT OF JUSTICE on your correspondence. This mailing of your comment. You also must
address may also be used for paper, prominently identify confidential
Executive Office for Immigration disk, or CD–ROM submissions. business information to be redacted
Review • Hand Delivery/Courier: Jean King, within the comment. If a comment has
General Counsel, Office of the General so much confidential business
8 CFR Parts 1003, 1208 Counsel, Executive Office for information that it cannot be effectively
Immigration Review, 5107 Leesburg redacted, all or part of that comment
[EOIR Docket No. 170P; AG Order No. 3706– may not be posted on http://
2016]
Pike, Suite 2600, Falls Church, VA
22041. Contact Telephone Number (703) www.regulations.gov.
RIN 1125–AA68 305–0470. Personal identifying information and
FOR FURTHER INFORMATION CONTACT: Jean
confidential business information
Motions To Reopen Removal, identified as set forth above will be
King, General Counsel, Office of the
Deportation, or Exclusion Proceedings placed in the agency’s public docket
General Counsel, Executive Office for
Based Upon a Claim of Ineffective file, but not posted online. To inspect
Immigration Review, 5107 Leesburg
Assistance of Counsel the agency’s public docket file in
Pike, Suite 2600, Falls Church, VA
AGENCY: Executive Office for 22041, telephone (703) 305–0470 (not a person, you must make an appointment
toll-free call). with agency counsel. Please see the FOR
Immigration Review, Department of
FURTHER INFORMATION CONTACT section
Justice. SUPPLEMENTARY INFORMATION:
above for agency counsel’s contact
ACTION: Notice of proposed rulemaking.
I. Public Participation information.
SUMMARY: The Department of Justice The reason that EOIR is requesting
Interested persons are invited to electronic comments before midnight
(Department) is proposing to amend the participate in this rulemaking by
regulations of the Executive Office for Eastern Time on the day the comment
submitting written data, views, or period closes is because the inter-agency
Immigration Review (EOIR) by arguments on all aspects of this rule.
establishing procedures for the filing Regulations.gov/Federal Docket
The Department also invites comments Management System (FDMS), which
and adjudication of motions to reopen that relate to the economic,
removal, deportation, and exclusion receives electronic comments,
environmental, or federalism effects that terminates the public’s ability to submit
proceedings based upon a claim of might result from this rule. Comments
ineffective assistance of counsel. This comments at midnight on the day the
that will provide the most assistance to comment period closes. Commenters in
proposed rule is in response to Matter the Department in developing these
of Compean, Bangaly & J–E–C–, 25 I&N time zones other than Eastern may want
procedures will reference a specific to take this fact into account so that
Dec. 1 (A.G. 2009), in which the portion of the rule, explain the reason
Attorney General directed EOIR to their electronic comments can be
for any recommended change, and received. The constraints imposed by
develop such regulations. The include data, information, or authority the Regulations.gov/FDMS system do
Department also proposes to amend the that support such recommended change. not apply to U.S. postal comments,
EOIR regulations that provide that All submissions received should which will be considered as timely filed
ineffective assistance of counsel may include the agency name and EOIR if they are postmarked before midnight
constitute extraordinary circumstances Docket No. 170P for this rulemaking. on the day the comment period closes.
that may excuse the failure to file an Please note that all comments received
asylum application within 1 year after are considered part of the public record II. Executive Summary
the date of arrival in the United States. and made available for public This proposed rule would establish
DATES: Written comments must be inspection at http:// standards for adjudicating motions to
postmarked and electronic comments www.regulations.gov. Such information reopen based on ineffective assistance of
must be submitted on or before includes personal identifying counsel in immigration proceedings
September 26, 2016. information (such as your name, before the immigration judges and the
ADDRESSES: You may submit comments, address, etc.) voluntarily submitted by Board of Immigration Appeals (Board or
identified by EOIR Docket No. 170P, by the commenter. BIA). The Board has addressed
Lhorne on DSK30JT082PROD with PROPOSALS
one of the following methods: If you want to submit personal reopening proceedings based on
• Federal eRulemaking Portal: http:// identifying information (such as your ineffective assistance of counsel in
www.regulations.gov. Follow the name, address, etc.) as part of your Matter of Lozada, 19 I&N Dec. 637 (BIA
instructions for submitting comments. comment, but do not want it to be 1988), and Matter of Assaad, 23 I&N
Commenters should be aware that the posted online, you must include the Dec. 553 (BIA 2003). In Matter of
electronic Federal Docket Management phrase ‘‘PERSONAL IDENTIFYING Compean, Bangaly, & J–E–C–, 24 I&N
System will not accept comments after INFORMATION’’ in the first paragraph Dec. 710 (A.G. 2009) (Compean I),
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![Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules 49557
Attorney General Mukasey overturned, Act provides the Attorney General with immigration proceedings based upon a
in part, the Board’s decisions in Matter the authority to promulgate regulations claim of ineffective assistance of
of Lozada and Matter of Assaad, and governing such proceedings. See INA counsel. See Matter of Assaad, 23 I&N
provided a new administrative 103(g)(2). The Act further provides the Dec. at 558; Matter of Lozada, 19 I&N
framework for adjudicating motions to Attorney General with the broad Dec. at 639–40. The Department
reopen based on ineffective assistance of authority to reopen proceedings and believes that, in appropriate cases,
counsel. However, in Matter of recognizes her existing authority in this reopening immigration proceedings
Compean, Bangaly, & J–E–C–, 25 I&N area. See INA 240(c)(7) (permitting a based upon a claim of ineffective
Dec. 1 (A.G. 2009) (Compean II), motion to reopen within 90 days of the assistance of counsel continues to be a
Attorney General Holder vacated date on which a final administrative permissible exercise of the Attorney
Compean I, and directed EOIR to order of removal is entered); INA General’s broad discretion.
develop a proposed rule pertaining to 240(b)(5)(C) (granting an alien 180 days Immigration proceedings are civil
such motions. Accordingly, the to seek reopening in order to rescind a proceedings with high stakes, including
Department of Justice (Department) has removal order entered in absentia, and the potential removal from the United
drafted this proposed rule. providing no time limit where the alien States of an individual with long-
Under this proposed rule, an did not receive notice of the standing family or other ties, or the
individual seeking to reopen his or her immigration hearing or was in custody grant or denial of relief or protection to
immigration proceedings would have to and the failure to appear was through no an individual who claims to fear harm
establish that the individual was subject fault of the alien).1 The Supreme Court in his or her native country. See, e.g.,
to ineffective assistance of counsel and also has long recognized the broad Aris v. Mukasey, 517 F.3d 595, 600 (2d
that, with limited exceptions, he or she discretion accorded the Attorney Cir. 2008); Hernandez-Gil v. Gonzales,
suffered prejudice as a result. The General to grant or deny motions to 476 F.3d 803, 806 (9th Cir. 2007).
proposed rule would provide guidelines reopen proceedings. See INS v. Doherty, Considering the serious consequences
for determining when counsel’s conduct 502 U.S. 314, 323 (1992) (‘‘The granting that may result from immigration
was ineffective, and when an individual of a motion to reopen is thus proceedings, the Attorney General
suffered prejudice. Under the proposed discretionary, and the Attorney General believes that it is paramount to ensure
rule, a motion to reopen based on has ‘broad discretion’ to grant or deny the integrity and fairness of such
ineffective assistance of counsel would such motions.’’) (internal citation proceedings. The Attorney General
be required to include: (1) An affidavit, omitted); accord INS v. Abudu, 485 U.S. therefore proposes to exercise her
or a written statement executed under 94, 105–06 (1988); INS v. Rios-Pineda, authority and discretion to regulate the
the penalty of perjury, providing certain 471 U.S. 444, 449 (1985); Matter of administrative process of immigration
information; (2) a copy of any applicable Coelho, 20 I&N Dec. 464, 471–72 (BIA proceedings before the immigration
representation agreement; (3) evidence 1992).2 Under the delegated authority of courts and the Board by codifying an
that prior counsel was notified of the the Attorney General, the Board has administrative remedy for individuals
allegations and of the filing of the consistently permitted the reopening of who were in removal, deportation, or
motion; and (4) evidence that a exclusion proceedings before EOIR and
complaint was filed with the 1 The Act’s provisions relating to motions to were subject to ineffective assistance of
appropriate disciplinary authorities. reopen took effect in 1997. Motions to reopen counsel.3
The proposed rule would permit immigration proceedings had previously been
adjudicators, in exercises of discretion permitted by regulation. See generally Dada v. 3 The Department notes that there is currently a
Mukasey, 554 U.S. 1, 12–15 (2008). split among the circuits regarding whether there is
committed exclusively to EOIR, to 2 The Act imposes requirements that must be met
a constitutionally-based right to effective counsel in
excuse noncompliance with these for a motion to reopen to be granted. See, e.g., INA immigration proceedings. Compare, e.g., Lin Xing
requirements in limited circumstances. 240(c)(7)(B) (‘‘The motion to reopen shall state the Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011)
The proposed rule would also provide new facts that will be proven at a hearing to be held (‘‘No statute or constitutional provision entitles an
that deadlines for motions to reopen can if the motion is granted, and shall be supported by alien who has been denied effective assistance of
affidavits or other evidentiary material.’’). The Act’s counsel to reopen the proceedings on the basis of
be equitably tolled in certain instances implementing regulations elaborate on these that denial. This Circuit has recognized,
where the motion is based on ineffective requirements. See 8 CFR 1003.23(b)(3) (‘‘A motion nevertheless, that the denial of effective assistance
assistance of counsel. to reopen will not be granted unless the of counsel may under certain circumstances violate
The Department believes that this Immigration Judge is satisfied that evidence sought the due process guarantee of the Fifth
to be offered is material and was not available and Amendment.’’) (brackets, ellipsis, and internal
proposed rule would promote could not have been discovered or presented at the quotation marks and citation omitted); Fadiga v.
consistency in the reopening of EOIR former hearing.’’); 8 CFR 1003.2(c)(1) (‘‘A motion to Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (‘‘A
proceedings based on ineffective reopen proceedings shall not be granted unless it claim of ineffective assistance of counsel in removal
assistance of counsel, thereby helping to appears to the Board that evidence sought to be proceedings is cognizable under the Fifth
offered is material and was not available and could Amendment—i.e., as a violation of that
ensure the integrity and fairness of those not have been discovered or presented at the former amendment’s guarantee of due process.’’), Zeru v.
proceedings. Given the importance of hearing[.]’’); cf. 8 CFR 1003.23(b)(1) (‘‘An Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (‘‘While
the issues involved, the Department Immigration Judge may upon his or her own motion aliens in deportation proceedings do not enjoy a
believes it is important for the public to at any time, or upon motion of the Service or the Sixth Amendment right to counsel, they have due
alien, reopen or reconsider any case in which he or process rights in deportation proceedings.’’), and
be able to participate in formulating the she has made a decision, unless jurisdiction is Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.
framework for reopening proceedings vested with the Board of Immigration Appeals.’’); 8 2003) (‘‘While an alien does not have a right to
based on ineffective assistance of CFR 1003.2(a) (‘‘The Board may at any time reopen appointed counsel, he does have a Fifth
counsel. or reconsider on its own motion any case in which Amendment right to a fundamentally fair
it has rendered a decision.’’); Matter of J–J–, 21 I&N proceeding.’’), with Rafiyev v. Mukasey, 536 F.3d
Lhorne on DSK30JT082PROD with PROPOSALS
III. Analysis of the Motion To Reopen Dec. 976, 984 (BIA 1997) (‘‘Notwithstanding the 853, 861 (8th Cir. 2008) (‘‘[W]e hold that there is
Provisions in Proposed § 1003.48 statutorily mandated restrictions, the Board retains no constitutional right under the Fifth Amendment
limited discretionary powers under the regulations to effective assistance of counsel in a removal
The Immigration and Nationality Act to reopen or reconsider cases on our own motion. proceeding.’’). It is beyond the scope of this
(‘‘Act’’ or ‘‘INA’’) provides the Attorney . . . The power to reopen on our own motion is not proposed rule to address whether there is a
meant to be used as a general cure for filing defects constitutionally-based right to effective assistance
General with extensive authority or to otherwise circumvent the regulations, where of counsel in immigration proceedings. Rather, this
relating to proceedings before the enforcing them might result in hardship.’’) (internal rule is limited to providing an administrative
immigration courts and the Board. The citation omitted). Continued
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![49558 Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules
The proposed rule would establish egregious circumstances have been While the Federal courts of appeals
procedures and substantive established in this case.’’ Matter of have generally endorsed the Lozada
requirements for the filing and Lozada, 19 I&N Dec. at 639. requirements, several courts have
adjudication of motions to reopen The Board also required, in Matter of adopted varying interpretations for
removal, deportation, and exclusion Lozada, that the individual filing the determining compliance with the
proceedings before the immigration motion establish prejudice. See id. at Lozada requirements, establishing
judges and the Board based upon a 638, 640. The Board did not set forth a prejudice, and applying equitable
claim of ineffective assistance of specific standard for prejudice, but tolling to the filing deadlines for
counsel. The rule would build on simply noted that ‘‘no prejudice was motions to reopen based upon a claim
procedures, established in Matter of shown to have resulted from prior of ineffective assistance of counsel. As
Lozada and Matter of Assaad, governing counsel’s’’ conduct in that case. Id. at discussed below, the courts of appeals
motions to reopen based upon a claim 640. have differed on what circumstances, if
of ineffective assistance of counsel. For over 20 years since the Board’s any, may excuse noncompliance with
Matter of Lozada, decided by the decision, Matter of Lozada has provided the Lozada requirements. For example,
Board in 1988, established a three-step a workable administrative framework some courts have been flexible in
procedure for individuals moving to for adjudicating ineffective assistance applying the Lozada requirements
reopen their deportation proceedings— claims in what are now known as where, in the court’s view, strict
which are now known as removal removal proceedings. Thus, Matter of compliance is not necessary to achieve
proceedings—based upon a claim of Lozada serves as a solid starting point the requirements’ purpose. See, e.g.,
ineffective assistance of counsel. These for setting up a framework for this Morales Apolinar v. Mukasey, 514 F.3d
three steps are commonly referred to as proposed rule. This framework affords 893, 896 (9th Cir. 2008) (‘‘In practice,
the Lozada requirements or Lozada relief to an individual in removal, we have been flexible in our application
factors, and they provide a ‘‘basis for deportation, or exclusion proceedings of the Lozada requirements. The Lozada
assessing the substantial number of harmed by his or her attorney’s factors are not rigidly applied,
claims of ineffective assistance of ineffectiveness and at the same time especially where their purpose is fully
counsel that come before the Board.’’ takes into consideration countervailing served by other means.’’); Xu Yong Lu
Matter of Lozada, 19 I&N Dec. at 639. concerns regarding abuse of the legal v. Ashcroft, 259 F.3d 127, 132–34 (3d
First, ‘‘[a] motion based upon a claim of process and delay of immigration Cir. 2001) (concluding that the Lozada
ineffective assistance of counsel should proceedings. requirements are ‘‘a reasonable exercise
be supported by an affidavit attesting to The Federal courts of appeals have
of the Board’s discretion,’’ id. at 132, but
the relevant facts,’’ including ‘‘a generally endorsed the Lozada
stressing ‘‘that the failure to file a [bar]
statement that sets forth in detail the requirements. In doing so, courts have
complaint is not fatal if a petitioner
agreement that was entered into with recognized the important policy
provides a reasonable explanation for
former counsel with respect to the considerations those requirements
his or her decision,’’ id. at 134)
actions to be taken [in the relevant embody. See, e.g., Beltre-Veloz v.
Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (emphasis in original); cf. Patel, 496
proceeding] and what counsel did or F.3d at 831 (holding that ‘‘[t]he BIA is
did not represent to the [individual] in (‘‘[The Matter of Lozada] framework
. . . is designed to screen out frivolous, free to deny motions to reopen for
this regard.’’ Id. Second, ‘‘former failure to comply with Lozada as long
counsel must be informed of the stale, and collusive claims.’’); Patel v.
Gonzales, 496 F.3d 829, 831–32 (7th Cir. as it does not act arbitrarily’’). One court
allegations and allowed the opportunity has found that there are circumstances
to respond,’’ and that response (or lack 2007) (‘‘The Lozada requirements
reduce the potential for abuse by where compliance with the
thereof) should accompany the motion. requirements is unnecessary. See, e.g.,
Id. Third, ‘‘the motion should reflect providing information from which the
BIA can assess whether an ineffective Escobar-Grijalva v. INS, 206 F.3d 1331,
whether a complaint has been filed with 1335 (9th Cir. 2000) (finding that there
the appropriate disciplinary authorities assistance claim has enough substance
to warrant the time and resources is no need to comply with Matter of
regarding such representation, and if Lozada where the record establishes on
not, why not.’’ Id. necessary to resolve the claim on its
merits.’’); Reyes v. Ashcroft, 358 F.3d its face ineffective assistance of
In Matter of Lozada, the Board also counsel).
noted specifically that ‘‘[l]itigants are 592, 597 (9th Cir. 2004) (‘‘We presume,
as a general rule, that the Board does not The Federal courts of appeals have
generally bound by the conduct of their
abuse its discretion when it obligates also proposed varying standards for
attorneys, absent egregious
[individuals] to satisfy Lozada’s literal prejudice. Some courts have required a
circumstances.’’ Id. (citing LeBlanc v.
requirements.’’); Betouche v. Ashcroft, strict standard for evaluating prejudice.
INS, 715 F.2d 685 (1st Cir. 1983)); see
357 F.3d 147, 150 (1st Cir. 2004) See, e.g., Sako v. Gonzales, 434 F.3d
also Matter of B–B–, 22 I&N Dec. 309,
(suggesting that Matter of Lozada 857, 864 (6th Cir. 2006) (requiring the
310–11 (BIA 1998). In denying the
provides ‘‘fair and efficacious individual filing the motion to
ineffective assistance claim in Matter of
techniques for screening out, ab initio, ‘‘establish that, but for the ineffective
Lozada, the Board noted that ‘‘[n]o such
the numerous groundless and dilatory assistance of counsel, he would have
remedy under appropriate circumstances based on
claims routinely submitted in these been entitled to continue residing in the
the Attorney General’s statutory authority and cases.’’); Lo v. Ashcroft, 341 F.3d 934, United States’’). Other courts have
discretion. We note, however, that Attorney General 937 (9th Cir. 2003) (‘‘. . . Lozada’s applied a standard similar to that
Holder’s order in Compean II, 25 I&N Dec. at 3, policy goals . . . are to provide a established by Strickland v.
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provided that nothing in that order would affect the
litigating positions of the Department, and the
framework within which to assess the Washington, 466 U.S. 668, 694 (1984),
Department has consistently argued before the bona fides of the substantial number of which held that prejudice exists when
Supreme Court that there is no constitutional right ineffective assistance claims asserted, to there is a ‘‘reasonable probability that,
to effective assistance of counsel in immigration discourage baseless allegations and but for counsel’s unprofessional errors,
proceedings. E.g., Brief for Respondent on Petition
for a Writ of Certiorari at 14 n.3, Mata v. Holder,
meritless claims, and to hold attorneys the result of the proceeding would have
135 S. Ct. 1039 (2015) (No. 14–185). Nothing in the to appropriate standards of been different.’’ See, e.g., Fadiga v. Att’y
proposed regulations affects this position. performance.’’). Gen., 488 F.3d 142, 158–59 (3d Cir.
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2007) (agreeing that Strickland’s one.’’ Tamang v. Holder, 598 F.3d 1083, for reopening in proposed §§ 1003.2 and
‘‘reasonable probability’’ standard is 1090 (9th Cir. 2010) (discussing the 1003.23, as well as the procedural and
appropriate in the context of removal goals behind Matter of Lozada) (internal substantive requirements for such
proceedings); Obleshchenko v. Ashcroft, quotation marks omitted). While motions at proposed § 1003.48. The
392 F.3d 970, 972 (8th Cir. 2004) allowing for some flexibility, the Board and the immigration judges,
(characterizing the court’s prejudice proposed rule would clarify the specific moreover, have broad authority to grant
standard as ‘‘akin’’ to the Strickland kinds of evidence and documentation to or deny a motion in the exercise of
test). be submitted in support of motions to discretion, and this includes the
In addition, while the courts of reopen based upon a claim of ineffective discretion to deny a motion even if the
appeals that have reached the issue have assistance of counsel. The filing party moving has presented a prima
permitted the equitable tolling of filing requirements described in this rule facie case for relief. See 8 CFR 1003.2(a),
deadlines for untimely motions to would serve to guide an individual 1003.23(b)(3); see also Abudu, 485 U.S.
reopen based upon claims of ineffective filing a motion to reopen in providing at 105 (explaining that, even where an
assistance of counsel, some courts have evidence necessary for a determination individual filing a motion to reopen has
not yet fully addressed whether these as to whether his or her counsel was presented a prima facie case for relief,
deadlines can be equitably ineffective. As the Board stated in the Board may deny the motion if the
tolled.4 Compare, e.g., Barry v. Mukasey, Matter of Lozada, ‘‘[t]he high standard movant would not be entitled to the
524 F.3d 721, 724 (6th Cir. 2008) announced here is necessary if we are discretionary relief ultimately at issue).
(‘‘Equitable tolling may apply when a to have a basis for assessing the
petitioner has received ineffective A. Applicability
substantial number of claims of
assistance of counsel.’’) (internal ineffective assistance of counsel that The proposed provisions of the rule
quotation marks omitted), with Neves v. come before the Board. Where essential addressing motions to reopen based
Holder, 613 F.3d 30, 36 (1st Cir. 2010) information is lacking, it is impossible upon a claim of ineffective assistance of
(stating that ‘‘[w]e assume arguendo, but to evaluate the substance of such counsel would cover conduct that
do not decide, that the time and number claim.’’ Matter of Lozada, 19 I&N Dec. occurred only after removal,
limits on motions to reopen are subject at 639. deportation, or exclusion proceedings
to equitable tolling’’). There is also a This proposed rule would add new have commenced with the immigration
lack of uniformity among the courts § 1003.48 to title 8 of the Code of courts.6 With the exception discussed
regarding the precise requirements and Federal Regulations (‘‘regulations’’). below, the proposed provisions of
standards that an individual must meet New § 1003.48 would provide the filing § 1003.48 would not apply to motions to
to establish due diligence in order to be and evidentiary requirements for reopen proceedings before the
eligible for equitable tolling. Compare, motions to reopen based upon a claim immigration judge or the Board based
e.g., Singh v. Gonzales, 491 F.3d 1090, of ineffective assistance of counsel. This on counsel’s conduct before another
1096 (9th Cir. 2007) (providing that the section would also incorporate administrative or judicial body,
filing deadline ‘‘is [equitably] tolled standards for evaluating whether an including before, during the course of,
until the petitioner ‘definitively learns’ individual has established that he or she or after the conclusion of immigration
of counsel’s fraud,’’ if the petitioner (1) acted with due diligence for the proceedings. This includes conduct that
acted with due diligence), with Patel v. purpose of determining the applicability was immigration-related or that
Gonzales, 442 F.3d 1011, 1016 (7th Cir. of equitable tolling and (2) was occurred before the U.S. Department of
2006) (providing that ‘‘[e]quitable prejudiced by prior counsel’s conduct. Homeland Security (DHS) or another
tolling requires a court to consider In addition, this proposed rule would government agency. See, e.g., Contreras
whether a reasonable person in the add a cross-reference to new § 1003.48 v. Att’y Gen., 665 F.3d 578, 585–86 (3d
plaintiff’s position would have been to the current regulations governing Cir. 2012) (declining to find ineffective
aware of the possibility that he had motions to reopen proceedings and to assistance of counsel in the preparation
suffered an injury’’) (internal quotation rescind orders of removal, deportation, and filing of a visa petition where
marks omitted). or exclusion entered in absentia. counsel’s conduct ‘‘did not compromise
The purpose of this proposed rule is The Department notes that the Board the fundamental fairness of’’ subsequent
to establish uniform procedural and has consistently permitted the removal proceedings); Balam-Chuc v.
substantive requirements for the filing reopening of proceedings based upon a Mukasey, 547 F.3d 1044, 1051 (9th Cir.
of motions to reopen based upon a claim claim of ineffective assistance of 2008) (same where counsel’s conduct
of ineffective assistance of counsel and counsel. See Matter of Assaad, 23 I&N ‘‘[did] not relate to the fundamental
to provide a uniform standard for Dec. at 558.5 The requirements in fairness of an ongoing proceeding’’). The
adjudicating such motions. Like Matter proposed new § 1003.48 would be in reason for this limitation is that the
of Lozada and its progeny, this addition to the general requirements for Board and the immigration judges are
proposed rule would provide an reopening provided in section 240(c)(7)
‘‘objective basis from which to assess of the Act and §§ 1003.2 and 1003.23 of 6 For purposes of this rule, included as ‘‘removal,
the veracity of the substantial number of the regulations. Thus, motions to reopen deportation, or exclusion proceedings’’ would be
ineffective assistance claims,’’ would proceedings based upon a claim of asylum-only and withholding-only proceedings,
given that those proceedings are ‘‘conducted in
‘‘hold attorneys to appropriate standards ineffective assistance of counsel would accordance with the same rules of procedure as
of performance,’’ and would ‘‘ensure need to meet the general requirements [removal proceedings].’’ 8 CFR 1208.2(c)(3)(i). This
both that an adequate factual basis rule would not apply in bond proceedings.
exists in the record for an However, in bond proceedings, after an immigration
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5 Section 240 of the Act is applicable only to
removal proceedings (which are initiated on or after judge makes an initial bond redetermination, an
ineffectiveness [motion] and that the individual can request, in writing, that the
April 1, 1997), but, by far, most motions to reopen
[motion] is a legitimate and substantial are filed in removal proceedings. For clarity, we immigration judge make ‘‘a subsequent bond
note that in deportation and exclusion proceedings, redetermination . . . [based] upon a showing that
4 Equitable tolling refers to ‘‘[t]he doctrine that and all other types of proceedings before the the alien’s circumstances have changed materially
the statute of limitations will not bar a claim if the immigration judges and the Board, motions to since the prior bond redetermination.’’ 8 CFR
plaintiff, despite diligent efforts, did not discover reopen are governed exclusively by the Attorney 1003.19(e). In addition, this rule would not apply
the injury until after the limitations period had General’s regulations in 8 CFR 1003.2 and 1003.23, in practitioner discipline proceedings conducted
expired.’’ Black’s Law Dictionary 579 (8th ed. 2004). not by section 240 of the Act. under 8 CFR part 1003 subpart G.
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generally not in a position to provide a entered’’); Compean II, 25 I&N Dec. at 3 With limited exceptions, a person who
remedy in a situation where an (noting that, ‘‘prior to Compean[ I], the is not an attorney or accredited
attorney’s performance before another Board itself had not resolved whether its representative is not permitted to
administrative or judicial body is discretion to reopen removal represent individuals in proceedings
alleged to be ineffective. Rather, a proceedings includes the power to before the immigration courts or the
request for a remedy in such a situation consider claims of ineffective assistance Board. See 8 CFR 1292.1(a)(1)–(5).
would be more appropriately directed to of counsel based on conduct of counsel Moreover, the regulations require the
that administrative or judicial body that occurred after a final order of immigration judge to advise individuals
before which the alleged ineffective removal had been entered,’’ and stating in removal proceedings of their right to
assistance occurred. Cf. Rivera v. United that ‘‘I resolve the question in the representation, at no expense to the
States, 477 F.2d 927, 928 (3d Cir. 1973) interim by concluding that the Board
government, by counsel of their choice
(holding that, where the petitioner’s does have this discretion, and I leave it
to the Board to determine the scope of authorized to practice in the
appeal had been dismissed because his
such discretion’’). proceedings, and specifically require
attorney failed to file a brief, the
For his or her case to be reopened, an that individuals in proceedings be
petitioner’s remedy was through a
motion in the court of appeals individual filing the motion based on advised of the availability of pro bono
requesting that the mandate be recalled failure to file a timely petition for legal services and receive a list of such
to determine whether the appeal should review would have to comply with the services. See 8 CFR 1003.16, 1003.61,
be reinstated, not through a motion in requirements of § 1003.48(b)(1)–(3) 1240.10(a)(1).
the district court); United States v. (affidavit, notice to counsel, and However, this proposed rule would
Winterhalder, 724 F.2d 109, 111 (10th complaint filed with the appropriate recognize that, sometimes, a person who
Cir. 1983) (same). disciplinary authorities), described in is not an attorney or accredited
more detail below. Under representative may lead an individual in
The proposed motion provisions in
§ 1003.48(c)(2), in order to establish that
§ 1003.48 would provide for one explicit removal, deportation, or exclusion
counsel acted ineffectively, the
exception to the limitation on the proceedings to believe that the person is
individual would have to establish that
Board’s authority to provide a remedy an attorney or representative, and that
counsel had agreed to file a petition for
for ineffective assistance of counsel the individual in proceedings, as a
review but failed to do so. To meet this
before another administrative or judicial burden, the individual would have to result of that mistaken belief, may retain
body. The exception would be with submit a representation agreement that person to represent him or her in
respect to a claim that counsel was making clear that the scope of such proceedings. When this occurs, in
ineffective for failing to file a timely representation included the filing of a assessing whether to reopen
petition for review of a Board decision petition for review, or would have to proceedings, the immigration judge or
with the appropriate court of appeals. otherwise establish that the scope of the Board would evaluate on a case-by-
Under the proposed rule at § 1003.48(c), representation included the filing of a case basis whether it was reasonable for
an individual could file a motion to petition for review. the individual in such proceedings to
reopen with the Board in such a The proposed motion provisions believe that the person in question was
situation, and the Board would have would only apply to the conduct of indeed an attorney or an accredited
discretion to reopen proceedings to certain individuals. With the exception representative, and whether he or she
address such a claim. The reason for discussed below, these provisions
allowing such a motion is that the then retained that person. See
would cover only the conduct of §§ 1003.23(b)(4)(v), 1003.48(a)(1). In
failure to file a timely petition for attorneys and accredited representatives
review leaves the court of appeals evaluating these questions, the
as defined in part 1292 of title 8 of the immigration judge or the Board could
without any jurisdiction to address the Code of Federal Regulations. The reason
claim of ineffectiveness given that the consider, among others, the following
for such a limitation is that attorneys
30-day deadline for filing a petition for and accredited representatives are inquiries: whether, and the extent to
review is mandatory and jurisdictional. governed by rules of professional which, the person held himself or
See INA 242(a)(1), (b)(1); see, e.g., Ortiz- conduct and have skills, including herself out as an attorney or accredited
Alfaro v. Holder, 694 F.3d 955, 958 (9th knowledge of immigration laws and representative; whether the individual
Cir. 2012); Ruiz-Martinez v. Mukasey, procedures, which are directly related to in proceedings knowingly relied on the
516 F.3d 102, 117–18 (2d Cir. 2008); furthering the interests that individuals assistance of the person not authorized
Dakane v. U.S. Att’y. Gen., 399 F.3d and the government have in fair and to practice law; and the extent of the
1269, 1272 n. 3 (11th Cir. 2004); accurate immigration proceedings. See, representation, including whether the
Magtanong v. Gonzales, 494 F.3d 1190, e.g., Hernandez v. Mukasey, 524 F.3d person appeared in the immigration
1191 (9th Cir. 2007). This exception is 1014, 1018–20 (9th Cir. 2008) (noting proceedings or completed, signed, or
consistent with the general principles that, in contrast to the law’s treatment submitted documents or evidence in
expressed in both Compean I and of attorneys possessing particular skills such proceedings on behalf of the
Compean II; in both decisions, the and governed by specific professional individual.
Attorney General contemplated that the standards, ‘‘the law has never presumed
Board could provide a remedy for that [the participation of non-attorney B. Effective Date
ineffective assistance that occurred after ‘immigration consultants’] is necessary
the issuance of a final order of removal. In addition to the above limitations,
or desirable to ensure fairness in
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See Compean I, 24 I&N Dec. at 740 removal proceedings,’’ id. at 1019, and the proposed provisions of § 1003.48
(stating that ‘‘the [view] I adopt today that, if ‘‘an individual . . . knowingly would apply only to motions to reopen
. . . is that the Board has jurisdiction to relies on assistance from individuals not proceedings based upon a claim of
consider deficient performance claims authorized to practice law, such a ineffective assistance of counsel filed
even where they are predicated on voluntary choice will not support a due with the immigration courts or the
lawyer conduct that occurred after a process claim based on ineffective Board on or after the effective date of
final order of removal has been assistance of counsel,’’ id. at 1020). the final rule.
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C. Proposed Requirements in § 1003.48 strategic decision [that ultimately does the prior counsel’s conduct was
for Filing a Motion To Reopen Based not succeed] does not constitute ineffective.
Upon a Claim of Ineffective Assistance ineffective assistance of counsel’’); Proposed § 1003.48 would describe
of Counsel Magallanes-Damian v. INS, 783 F.2d the required evidence to be included
931, 934 (9th Cir. 1986) (holding that with a motion to reopen proceedings
The proposed rule at § 1003.48 would
the attorney’s decision not to contest before the immigration judge or the
provide filing and evidentiary
deportability, even if ‘‘unwise’’ in Board based upon a claim of ineffective
requirements for motions to reopen
hindsight, was not ineffective assistance assistance of counsel. Section
based upon a claim of ineffective
of counsel); Rodriguez-Gonzalez v. INS, 1003.48(b)(1)(i) would require an
assistance of counsel. In order to
640 F.2d 1139, 1142 (9th Cir. 1981) individual to submit an affidavit, or a
succeed in a motion to reopen, the
(holding that a tactical ‘‘decision to written statement executed under the
individual filing the motion would have
forego challenging [an] accusation of penalty of perjury as provided in 28
to submit evidence both that prior U.S.C. 1746,7 setting forth in detail the
counsel’s conduct was ineffective and entry without inspection . . . even if in
hindsight unwise, does not constitute agreement that was entered into with
that the individual was prejudiced as a
ineffective assistance’’); cf. Matter of prior counsel with respect to the actions
result of counsel’s ineffective assistance.
Velasquez, 19 I&N Dec. 377, 383 (BIA to be taken by counsel, and what
With respect to the specific conduct
1986) (stating that the attorney’s representations counsel did or did not
that would amount to ineffective
‘‘admissions [of factual allegations] and make in this regard.
assistance in immigration proceedings, An affidavit is ‘‘[a] written or printed
this rule would not set any bright line the concession of deportability were
reasonable tactical actions,’’ and thus declaration or statement of facts, made
standards, or an enumerated list, of voluntarily, and confirmed by the oath
what specific conduct would amount to were binding). Further, under this
proposed provision, we expect that or affirmation of the party making it,
ineffective assistance in immigration taken before a person having authority
proceedings. Rather, the proposed rule there would be ‘‘a strong presumption
that counsel’s conduct falls within the to administer such oath or affirmation.’’
would provide, at § 1003.48(a)(2), that Black’s Law Dictionary 58 (6th ed.
‘‘[a] counsel’s conduct constitutes wide range of reasonable professional
assistance.’’ Strickland, 466 U.S. at 689. 1990). The ‘‘affidavit provides an exact,
ineffective assistance of counsel if the sworn recitation of facts, collected in
conduct was unreasonable, based on the The filing requirements described in
proposed § 1003.48(b)(1)–(3) would one place . . . . [T]he affidavit
facts of the particular case, viewed as of requirement serves not only to focus the
the time of the conduct.’’ serve to guide the individual filing the
motion in providing the evidence facts underlying the charge, but to foster
This provision, in calling for an
necessary for a determination as to an atmosphere of solemnity
inquiry based on the reasonableness of
whether his or her counsel’s conduct commensurate with the gravity of the
the counsel’s conduct, viewed when the
was ineffective. In order to demonstrate claim.’’ Reyes, 358 F.3d at 598 (ellipsis
conduct occurred, would be based on
that counsel’s conduct was ineffective, and brackets in original) (quoting
the Supreme Court’s holding in
the motion should set forth clearly the Keating v. Office of Thrift Supervision,
Strickland. There, the Court stated that
particular circumstances underlying a 45 F.3d 322, 327 (9th Cir. 1995)). The
‘‘[n]o particular set of detailed rules for
given case. In order to prevail, the Department recognizes, however, that
counsel’s conduct can satisfactorily take
individual may need to submit some individuals, particularly those
account of the variety of circumstances
documentary or other supporting who are unrepresented, may face
faced by . . . counsel or the range of
evidence beyond that described in burdens in complying with the
legitimate decisions regarding how best
§ 1003.48(b)(1)–(3). For example, technical requirements of an affidavit.
to represent a [client].’’ Strickland, 466
additional evidence could include For example, an unrepresented
U.S. at 688–89. Rather, for an attorney’s
evidence of payment to prior counsel or individual may be in detention and
representation to constitute ineffective
an affidavit explaining what the without ready access to an official with
assistance, the representation ‘‘must
individual in proceedings specifically authority to administer an oath or
. . . [fall] below an objective standard of
disclosed to prior counsel, such as the affirmation. For that reason,
reasonableness,’’ id. at 688, judged ‘‘on
individual’s family ties or criminal § 1003.48(b)(1)(i) would permit the
the facts of the particular case, [and]
history. Additional supporting evidence submission of a written statement,
viewed as of the time of counsel’s
could also include written statements executed under the penalty of perjury as
conduct,’’ id. at 690; see also Wong v.
from current counsel or witnesses provided in 28 U.S.C. 1746, that does
Belmontes, 558 U.S. 15, 16–17 (2009)
regarding prior counsel’s conduct. not meet the technical requirements of
(per curiam) (citing Strickland, 466 U.S.
an affidavit. In addition, as described in
at 687–89). As discussed in detail in section E, in
more detail below, the Board or an
Under this proposed provision, a addition to demonstrating that prior
immigration judge could, in an exercise
tactical decision would not be counsel’s conduct was ineffective, the
of discretion committed solely to EOIR,
ineffective assistance if the decision was individual filing the motion would have
excuse the requirement that the written
reasonable when it was made, even if it the burden of establishing that the
statement be executed under the penalty
proved unwise in hindsight. See individual was prejudiced as a result of
of perjury in certain limited instances.
Strickland, 466 U.S. at 689 (stating that that conduct. The requirement of
Proposed § 1003.48(b)(1)(ii) would
‘‘[a] fair assessment of attorney providing evidence that the prior
provide that, in addition to the affidavit
performance requires that every effort be counsel was ineffective would be
or written statement executed under the
made to eliminate the distorting effects distinct from establishing prejudice as
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of hindsight’’); Mena-Flores v. Holder, required in § 1003.48(b)(4). The 7 Under 28 U.S.C. 1746, an unsworn declaration,
776 F.3d 1152, 1169 (10th Cir. 2015) Department cautions that the certification, verification, or statement executed in
(stating that ‘‘[a]n attorney’s objectively immigration judge or the Board would the United States is deemed to be made under
reasonable tactical decisions do not have the discretion to deny the motion penalty of perjury if it includes the following words
‘‘in substantially the following form’’: ‘‘I declare (or
qualify as ineffective assistance’’); Jiang without reaching the issue of prejudice, certify, verify, or state) under penalty of perjury that
v. Mukasey, 522 F.3d 266, 270 (2d Cir. if the individual does not submit the foregoing is true and correct. Executed on (date).
2008) (holding that ‘‘recommending [a] arguments or evidence establishing that . . . (Signature).’’
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penalty of perjury, the individual filing individual would also have to provide individual filing the motion reasonably
the motion must submit a copy of any evidence of the date he or she provided but erroneously believed a person to be
agreement entered into with prior notice to prior counsel, and the manner an attorney or accredited representative
counsel. If no agreement is provided, in which this notice was provided, and and retained that person to represent
the individual would have to explain its the individual would have to include a him or her in the proceedings before the
absence in the affidavit or written copy of the correspondence to the immigration judge or the Board, the
statement, for example by describing his attorney. The individual would also individual would have to file the
or her efforts to obtain the agreement have to submit to the immigration court complaint with an appropriate State or
from prior counsel. In addition, the or the Board any subsequent response local law enforcement agency (which in
individual would have to provide any from prior counsel. This obligation some States may include the State
reasonably available evidence on the would continue until such time as a Attorney General’s office) with authority
scope of the agreement and the reasons decision is rendered on the motion. over matters relating to the
for its absence, for example by Proposed § 1003.48(b)(3) would unauthorized practice of law or
providing evidence that the further require the individual filing the immigration-related fraud. If the
representation agreement was motion to file a complaint with the individual filing the motion has any
unwritten. The requirement to provide appropriate disciplinary authorities questions regarding determining the
evidence of the agreement with prior with respect to any violation of prior appropriate State or local enforcement
counsel would help immigration judges counsel’s ethical or legal agency with authority over such matters
and the Board to understand the responsibilities. This requirement in proceedings before the immigration
‘‘nature, scope, or substance’’ of the would help to monitor the legal judges or the Board, he or she should
attorney’s obligations, if any, to his or profession and to assist the appropriate contact the Fraud and Abuse Prevention
her client, and thus whether prior disciplinary authorities in considering Program in the Office of the General
counsel was ineffective. Beltre-Veloz, and acting on instances of ineffective Counsel at EOIR at (703) 305–0470.
533 F.3d at 10; see also Punzalan v. assistance of counsel. See, e.g., Matter of The individual filing the motion
Holder, 575 F.3d 107, 111–12 (1st Cir. Rivera, 21 I&N Dec. 599, 603–05 (BIA would have to submit a copy of the
2009) (quoting Beltre-Veloz, 533 F.3d at 1996). Additionally, it would complaint and any correspondence from
10); Ruiz-Martinez, 516 F.3d at 121 ‘‘highlight[ ] the standard[s] which the disciplinary authority with his or
(rejecting an ineffective assistance of should be expected of attorneys who her motion to the immigration court or
counsel claim because the individual represent persons in immigration the Board. In addition to filing the
filing the motion ‘‘did not set forth his proceedings, the outcome of which may, required complaint, the individual
agreement with his prior attorneys and often does, have enormous would not be precluded from taking any
concerning what actions would be taken significance for the person.’’ Sswajje v. other actions to notify appropriate
or what they did or did not represent in Ashcroft, 350 F.3d 528, 533 (6th Cir. governmental or disciplinary authorities
this regard’’). 2003) (quoting Matter of Lozada, 19 I&N regarding the conduct of his or her prior
Proposed § 1003.48(b)(2) would Dec. at 639–40); see also Reyes, 358 F.3d counsel, accredited representative, or
require an individual filing a motion to at 596 (same). The requirement would any person retained by the individual
provide evidence that the counsel ‘‘also serve[ ] to protect against whom he or she reasonably but
whose representation is claimed to have collusion between alien and counsel in erroneously believed to be an attorney
been ineffective has been informed of which ‘ineffective’ assistance is or accredited representative, and
the allegations leveled against that tolerated, and goes unchallenged by an submitting evidence of such actions
counsel and that a motion to reopen alien before disciplinary authorities, with his or her motion. In addition, the
alleging ineffective assistance of counsel because it results in a benefit to the Department notes that this rule would
would be filed on that basis. As alien in that delay can be a desired end, not preclude the individual from taking
discussed in Matter of Lozada, this in itself, in immigration proceedings.’’ any other actions to notify the
requirement would mitigate the Matter of Rivera, 21 I&N Dec. at 604; see
possibility of abuse by providing a also Betouche, 357 F.3d at 150 representative. 8 CFR 1003.16, 1292.1. The
‘‘mechanism . . . for allowing former proposed rule would require that complaints
(recognizing the ‘‘significant prospect against accredited representatives be filed with the
counsel . . . to present his version of that entirely meritless and/or collusive EOIR disciplinary counsel because EOIR is
events if he so chooses.’’ 19 I&N Dec. at ineffective assistance claims may be responsible for the accreditation process and the
639; see Debeatham v. Holder, 602 F.3d filed for purely dilatory purposes’’); Xu EOIR disciplinary counsel is responsible for
481, 485–86 (2d Cir. 2010). investigating allegations of misconduct against
Yong Lu, 259 F.3d at 133 (quoting accredited representatives appearing before the
Additionally, this ‘‘notice requirement Matter of Rivera, 21 I&N Dec. 599, on immigration courts and the Board. See 8 CFR
[would] provide[ ] a mechanism by the purposes of the bar complaint 1003.104, 1292.2(d). The Department notes that the
which the [immigration judge] may Board and some circuit courts have analyzed
requirement). ineffective assistance of counsel claims without
more accurately assess the merits of [an] The proposed rule provides that the expressly addressing whether the Matter of Lozada
ineffective assistance claim.’’ Reyes, 358 individual filing the motion would have requirements should be strictly applied to an
F.3d at 599. to file the complaint against his or her accredited representative. See, e.g., Matter of
The Department notes that merely Zmijewska, 24 I&N Dec. 87, 94–95 (BIA 2007);
representative with the appropriate Romero v. INS, 399 F.3d 109, 112–13 (2d Cir. 2005).
copying counsel on a complaint filed disciplinary authorities. For an attorney, The Department has determined, however, that due
with the appropriate State bar or the individual would have to file the to EOIR’s ability to accredit and to discipline
governmental authority would not be complaint with the relevant State accredited representatives, an accredited
sufficient to meet the notice representative should be treated the same as an
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licensing authority. For an accredited attorney for purposes of determining ineffective
requirement; rather, the individual
representative, the individual would representation. Thus, the Department has
filing the motion would have to provide determined that the requirements for reopening
have to file the complaint with the EOIR
notice to his or her prior counsel in a based upon a claim of ineffective assistance of
disciplinary counsel.8 Where the counsel should be applied to an accredited
separate written correspondence that a
representative appearing in cases before the
motion to reopen would be filed 8 Individuals in immigration proceedings are immigration judges or the Board in the same
alleging ineffective assistance of permitted representation of their choosing before manner as the requirements are applied to an
counsel. With the motion, the EOIR and may be represented by an accredited attorney.
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appropriate governmental or would guide individuals in proceedings sufficient because Mr. Tang has made
disciplinary authorities regulating the in providing the evidence necessary for no attempt to comply with any of
unauthorized practice of law regarding a determination of whether the Lozada’s requirements’’); see also Stroe
any person not authorized to practice counsel’s conduct was ineffective, and v. INS, 256 F.3d 498, 504 (7th Cir. 2001)
law. would assist the immigration judge and (noting that ‘‘we have difficulty
The Department welcomes input from the Board in making this determination. understanding how an alien who fails to
the public about the requirement to See generally Matter of Lozada, 19 I&N comply with the Board’s criteria can
submit, with a motion to reopen, a Dec. at 639–40 (discussing how these succeed in challenging its decision’’).
complaint filed with the appropriate evidentiary requirements assist the The Sixth Circuit has also required
disciplinary authorities. As noted above, adjudicator in evaluating a claim of that individuals filing motions generally
there are important policy reasons for ineffective assistance of counsel); Matter comply with all three Lozada
this requirement, although the of Assaad, 23 I&N Dec. at 556–57 requirements, noting that ‘‘[s]ound
Department acknowledges certain (same); Matter of Rivera, 21 I&N Dec. at policy reasons support compliance’’ and
countervailing concerns, as referenced 603–07 (same). the requirements ‘‘facilitate a more
by Attorney General Mukasey in Most circuits have required some thorough evaluation by the BIA and
Compean I, see 24 I&N Dec. at 737–38. level of compliance with Matter of discourage baseless allegations.’’ Hamid
The Department welcomes comments, Lozada. The First Circuit, for example, v. Ashcroft, 336 F.3d 465, 469 (6th Cir.
including from State licensing has generally required that the Matter of 2003) (internal quotation marks
authorities, regarding the efficacy of this Lozada requirements be satisfied. See, omitted); see also Pepaj v. Mukasey, 509
requirement in assisting State licensing e.g., Georcely v. Ashcroft, 375 F.3d 45, F.3d 725, 727 (6th Cir. 2007) (‘‘An alien
authorities in regulating the legal 51 (1st Cir. 2004) (noting that who fails to comply with Lozada’s
profession. ‘‘[a]lthough we have hinted that full requirements forfeits her ineffective-
Finally, proposed § 1003.48(b) would compliance with Lozada’s requirements assistance-of-counsel claim.’’). The Fifth
require the individual filing the motion might be excused in an appropriate Circuit also requires compliance with
to comply with the existing case, the Lozada requirements generally Matter of Lozada. See Rodriguez-
requirements for motions to reopen in make sense’’) (internal citation omitted). Manzano v. Holder, 666 F.3d 948, 953
§§ 1003.2 and 1003.23. Sections 1003.2 The court in Georcely reasoned: (5th Cir. 2012) (rejecting the argument
and 1003.23 require the individual to It is all too easy after the fact to denounce that the court ‘‘should apply Lozada
submit evidence of what will be proven counsel and achieve a further delay while flexibly’’).
at the hearing if the motion is granted that issue is sorted out. And in the absence Other courts have adopted or
and to submit any appropriate of a complaint to the bar authorities, counsel indicated an approach under which full
applications for relief, supporting may have all too obvious an incentive to help compliance may be excused in certain
documentation, or other evidentiary his client disparage the quality of the
representation. limited circumstances. In Barry v.
material. For a motion based on Gonzales, 445 F.3d 741 (4th Cir. 2006),
ineffective assistance of counsel, this Id.; see also Punzalan, 575 F.3d at 111 the court explained:
could include evidence that the filer’s (‘‘The BIA acts within its discretion in
prior counsel failed to provide to the [A]lthough Lozada provides a useful
denying motions to reopen that fail to
framework for assessing ineffective assistance
immigration judge or the Board, or other meet the Lozada requirements as long as claims, an alien’s failure to satisfy all three
independent evidence, such as it does so in a non-arbitrary manner.’’) requirements does not preclude appellate
affidavits, applications for relief and (internal quotation marks omitted); court review in every case. We will reach the
supporting documentation, proffered Betouche, 357 F.3d at 150–51 (setting merits of an ineffective assistance of counsel
testimony of potential witnesses, family forth reasons for the Matter of Lozada claim where the alien substantially complies
history, country conditions, identity requirements). with the Lozada requirements, such that the
documentation, or criminal records or The Seventh, Eighth, and Tenth BIA could have ascertained that the claim
clearances. Circuits have also generally required was not frivolous and otherwise asserted to
After promulgation of this rule, the compliance, but have not yet delay deportation. However, an alien who
fails to satisfy any of the three Lozada
Department may publish additional determined whether they might
requirements will rarely, if ever, be in
information, such as in a fact sheet or overlook a lack of compliance with the substantial compliance.
other format, to assist the public in Matter of Lozada requirements in an
filing motions to reopen based upon a appropriate case. See Patel, 496 F.3d at Id. at 746; cf. Dakane, 399 F.3d at 1274
claim of ineffective assistance of 831 (noting that ‘‘[w]e have not (requiring ‘‘substantial, if not exact,
counsel. Additionally, the Department expressly decided whether the BIA compliance with the procedural
will seek out opportunities to engage the abuses its discretion by requiring strict requirements of Lozada’’); Gbaya v. U.S.
public in an effort to inform individuals compliance with Lozada’’); Habchy v. Att’y Gen., 342 F.3d 1219, 1222 & n. 2
about the process. The Department Gonzales, 471 F.3d 858, 863 (8th Cir. (11th Cir. 2003) (stating that, given that
welcomes input from the public 2006) (noting that the Eighth Circuit the individual who filed the motion
regarding what type of information ‘‘has not ruled on whether a strict ‘‘failed to comply with at least two out
might best assist counsel and application of those requirements could of three Lozada requirements, [he]
unrepresented individuals in the constitute an abuse of discretion in would not be in substantial compliance
preparation and filing of such motions certain circumstances,’’ but stating that, with Lozada,’’ id. at 1222 n.2, but not
with the immigration courts and the ‘‘[a]t the very least, an [immigration deciding ‘‘whether the BIA may enforce
judge] does not abuse his discretion in strict compliance with Lozada or must
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Board as well as information and ideas
on how best to engage impacted requiring substantial compliance with also accept substantial compliance,’’ id.
communities. the Lozada requirements when it is at 1222).
necessary to serve the overall purposes However, a few courts of appeals have
D. Compliance With the Filing of Lozada’’); Tang v. Ashcroft, 354 F.3d gone further, excusing a lack of
Requirements in Proposed § 1003.48 1192, 1196–97 (10th Cir. 2003) (stating compliance in a greater variety of
As discussed above, the evidentiary that ‘‘[w]e not decide whether situations. Such courts have warned of
requirements in proposed § 1003.48 substantial compliance would be the ‘‘inherent dangers . . . in applying
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a strict, formulaic interpretation of excuse noncompliance with the filing suffered prejudice as a result. This
Lozada.’’ Rranci v. Att’y Gen., 540 F.3d requirements in § 1003.48(b)(1)–(3) for approach is consistent with the general
165, 173 (3d Cir. 2008) (ellipsis in compelling reasons in various limited rule that assertions in a written
original) (internal quotation marks circumstances. Collectively, the filing statement that are not under the penalty
omitted); see also Yang v. Gonzales, 478 requirements at § 1003.48(b)(1)–(3) are of perjury would be entitled to little or
F.3d 133, 142–43 (2d Cir. 2007) (‘‘As to designed to ensure that adjudicators no evidentiary weight. Cf. Matter of S–
compliance with Lozada in relation to have access to crucial information to M–, 22 I&N Dec. 49, 51 (BIA 1998)
claims of ineffective assistance of help them determine whether an (stating that ‘‘statements in a brief,
counsel, we have not required a slavish individual was subject to ineffective motion, or Notice of Appeal are not
adherence to the requirements, holding assistance of counsel and suffered evidence and thus are not entitled to
only that substantial compliance is prejudice. However, the Department any evidentiary weight’’).
necessary.’’). These courts of appeals recognizes that there are limited The Department seeks comments from
have differed on what circumstances situations in which an individual is the public on this provision. First, the
excuse the Matter of Lozada unable to comply with a filing Department seeks comment on whether
requirements, but have generally held requirement but can still demonstrate an individual should be required,
that there must be a rational reason for that he or she was subject to ineffective without exception, to submit an
excusing failure to comply with one or assistance of counsel and suffered affidavit or a written statement executed
more of the requirements. For example, prejudice as a result, such that it would under the penalty of perjury, given that
both the Ninth and Second Circuits be appropriate to grant his or her assertions in documents not under the
have noted that the Matter of Lozada motion. penalty of perjury are generally given
requirements should not be rigidly As noted above, § 1003.48(b)(1)(i) little or no evidentiary weight. If an
applied where their purpose is fully would provide that an individual filing exception should exist, the Department
served by other means. See, e.g., a motion must submit an affidavit, or a seeks comments on whether this
Morales Apolinar, 514 F.3d at 896; written statement executed under the exception should be formulated
Piranej v. Mukasey, 516 F.3d 137, 144– penalty of perjury as provided in 28 differently. For example, the
45 (2d Cir. 2008) (remanding to the U.S.C. 1746, setting forth in detail the Department has considered providing
Board because, although the individual agreement that was entered into with that the requirement that the written
filing the motion failed to submit an respect to the actions to be taken by statement be executed under penalty of
affidavit outlining his agreement with counsel and what representations perjury could be excused if there is good
his prior counsel, a general retainer counsel did or did not make in this
cause to do so, or if exceptional
agreement may have satisfied the Matter regard. If the individual submits a
circumstances are present. The
of Lozada requirements). written statement, § 1003.48(b)(1)(i)
Department seeks comments on whether
The Ninth Circuit has found that, in would permit the adjudicator, in an
either of these standards is more
some circumstances, the individual exercise of discretion committed
appropriate than the current proposed
filing the motion does not need to exclusively to EOIR, to excuse the
‘‘compelling reasons’’ standard.
comply with any of the requirements in requirement that the written statement
Matter of Lozada. See, e.g., Castillo- be executed under the penalty of perjury Similarly, the remaining requirements
Perez v. INS, 212 F.3d 518, 525–27 (9th if there are compelling reasons why the in proposed § 1003.48(b)(1)(ii)–(3), i.e.,
Cir. 2000) (finding that there is no need written statement was not so executed submitting any representation
to comply with Matter of Lozada where and the motion is accompanied by agreement with counsel, providing
the record was undisputed that counsel certain other evidence. For example, if notice to prior counsel, and filing a
failed, without any reason, to apply in the individual is unrepresented and complaint with the appropriate
a timely manner for relief for which the speaks little English, and submits a disciplinary authorities, could be
client was prima facie eligible while written statement that does not fully excused in limited instances for
telling the client that he had filed for comply with the technical requirements compelling reasons. An individual filing
such relief); Escobar-Grijalva, 206 F.3d of 28 U.S.C. 1746 for a document to be a motion would have the burden of
at 1335 (finding that there is no need to under the penalty of perjury, it may be establishing compelling reasons for
comply with Matter of Lozada where appropriate for the adjudicator, in the excusing one of these requirements. A
the record establishes on its face exercise of discretion, to excuse for simple, unsupported, or blanket
ineffective assistance of counsel). In compelling reasons the requirement that assertion of a difficulty or situation that
Tamang, 598 F.3d at 1090, the Ninth the written statement be executed under inhibited compliance would not, on its
Circuit distinguished prior cases in the penalty of perjury. The Department own, suffice. Rather, the individual
which ‘‘strict compliance with Lozada expects that the waiver issue would would have to explain the
was not required because, under the arise almost exclusively in cases where circumstances preventing his or her
circumstances of those cases, the the individual is unrepresented and is compliance, providing sufficient details
ineffectiveness of counsel was plain on not familiar with the requirement to and supporting documentation when
its face.’’ The court found that, in submit a written statement under the appropriate. He or she should also
Tamang’s case, ‘‘without Tamang’s penalty of perjury, inasmuch as provide other information to support his
compliance with the Lozada elements, attorneys are familiar with requirements or her claim, such as explaining why the
. . . it is impossible to determine for the submission of affidavits and failure to comply could not or need not
whether [his] ineffective assistance of written statements under the penalty of be remedied or producing alternative
evidence. Ultimately, as each case
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counsel claim has merit.’’ Id. perjury.
Accordingly, the law with regard to A waiver of the requirement that a would involve its own unique
compliance with the Matter of Lozada written statement be executed under the circumstances, the immigration judge
requirements varies significantly among penalty of perjury would be and the Board would be in the best
the circuits. inappropriate in the absence of other position to determine whether a filing
The proposed rule would provide evidence independently establishing requirement should be excused in a
adjudicators with the discretion, that the individual was subject to given case and whether the case
committed exclusively to EOIR, to ineffective assistance of counsel and warrants reopening in the exercise of
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discretion despite lack of compliance would have to re-file the complaint with 1096, 1100 (9th Cir. 2009); Jiang, 522
with regulatory requirements. the correct disciplinary authorities. The F.3d at 270; Zeru v. Gonzales, 503 F.3d
With respect to the requirement in Department further notes that the fact 59, 72 (1st Cir. 2007); Mai v. Gonzales,
§ 1003.48(b)(1)(ii) that an individual that counsel has been disciplined, 473 F.3d 162, 165 (5th Cir. 2006). The
filing a motion submit any applicable suspended from the practice of law, or Board, however, has not established a
representation agreement with prior disbarred would not, on its own, excuse standard for prejudice, and the courts of
counsel, such an agreement is the best an individual from filing the required appeals, as set forth below, have
evidence of the nature, scope, or disciplinary complaint. Even in the case provided varying standards.
substance of the representation. of a disbarred attorney, complaints filed This rule would set forth a single
However, if an individual filing a after disbarment may be relevant. In the uniform standard for prejudice to be
motion can establish compelling reasons majority of States, a disbarred attorney applied nationwide in ineffective
for failing to submit such an agreement, may seek readmission to the bar after a assistance of counsel cases. This would
then § 1003.48(b)(1)(ii) would permit certain period of time. As such, in
the immigration judge or the Board, in ensure that individuals in similar
considering whether a disbarred situations would not be subject to
the exercise of discretion committed attorney merits readmission, the
exclusively to EOIR, to excuse this disparate results based solely on the fact
licensing authority may consider that their cases arose in different
failure if the individual filing the complaints filed after disbarment.
motion submits other reasonably Federal jurisdictions. See generally
It is important to consider the context Matter of Cerna, 20 I&N Dec. 399, 408
available evidence regarding his or her for ineffective assistance of counsel
agreement with prior counsel. (BIA 1991) (explaining why immigration
claims under this rulemaking. These laws, to the ‘‘extent possible . . . should
With respect to the requirement in claims will typically arise after a final
§ 1003.48(b)(2) that an individual filing be applied in a uniform manner
order has been entered in the case, and nationwide’’), superseded by regulation
a motion notify prior counsel, the the proceedings have ended. The
Department notes that State bar as stated in Martinez-Lopez v. Holder,
Department believes that the standards 704 F.3d 169, 172 (1st Cir. 2013);
associations generally make their for excusing noncompliance with the
members’ contact information publicly Cazarez-Gutierrez v. Ashcroft, 382 F.3d
filing requirements under 905, 912 (9th Cir. 2004) (noting the
available. Further, the requirement to § 1003.48(b)(1)–(3) must be carefully
notify prior counsel applies even if a ‘‘strong interest in national uniformity
applied. In this regard, the adjudicator in the administration of immigration
long period of time has passed since a applying these standards should keep in
person last had contact with the laws’’); Rosendo-Ramirez v. INS, 32
mind the strong public and F.3d 1085, 1091 (7th Cir. 1994)
counsel. However, there are limited governmental interests in the
instances in which an individual filing (‘‘National uniformity in the
expeditiousness and finality of immigration and naturalization laws is
a motion may be able to establish
proceedings. See Abudu, 485 U.S. at 107 paramount: Rarely is the vision of a
compelling reasons why he or she was
(explaining that motions to reopen are unitary nation so pronounced as in the
unable to notify prior counsel. Examples
disfavored because ‘‘[t]here is a strong laws that determine who may cross our
may include instances where the prior
public interest in bringing litigation to national borders and who may become
counsel is incarcerated or has moved to
a close as promptly as is consistent with a citizen.’’).
a foreign country, or where the prior
the interest in giving the adversaries a
counsel is an individual the movant As already noted, the lack of
fair opportunity to develop and present
reasonably but erroneously believed to uniformity among the circuits is plain.
their respective cases’’). These interests
be an attorney or accredited The Sixth Circuit applies a very strict
dictate that a § 1003.48 filing
representative and, despite diligent standard for evaluating prejudice in
efforts, he or she cannot obtain prior requirement be excused sparingly and
only in relatively few circumstances. ineffective assistance of counsel
counsel’s contact information. immigration cases. See, e.g., Sako, 434
With respect to the requirement in The Department believes that the
exceptions to the proposed rule’s filing F.3d at 864 (holding that an individual
§ 1003.48(b)(3) that an individual filing ‘‘must establish that, but for the
a motion file a complaint with the requirements are appropriately narrow,
and that the requirements will ineffective assistance of counsel, he
appropriate disciplinary authorities, this would have been entitled to continue
standard is informed by the fact that the accordingly be excused only rarely.
residing in the United States’’).
filing of a disciplinary complaint is ‘‘a E. Standard in Proposed § 1003.48 for
relatively small inconvenience for an Several circuits apply a standard
Evaluating Prejudice 9
alien who asks that he or she be given similar to that established by the
a new hearing in a system that is already The proposed rule would provide that Supreme Court in Strickland for
stretched in terms of its adjudicatory an individual who files a motion to ineffective assistance of counsel claims
resources.’’ Matter of Rivera, 21 I&N reopen based upon a claim of ineffective arising under the Sixth Amendment in
Dec. at 605. However, there are limited assistance of counsel must establish that criminal cases, which is a ‘‘reasonable
instances where an individual filing a he or she was prejudiced by counsel’s probability that, but for counsel’s
motion may be able to establish conduct. The Board and the courts of unprofessional errors, the result of the
compelling reasons for failing to file appeals have uniformly recognized that proceeding would have been different.’’
such a complaint. An example of such prejudice must be established in order Strickland, 466 U.S. at 694. These
reasons may be the death of the counsel to reopen removal, deportation, or include the Third and Eleventh Circuits.
who allegedly provided the ineffective exclusion proceedings based on a claim See Rranci, 540 F.3d at 175–76 (‘‘a
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assistance. The Department notes that of ineffective assistance of counsel. See, reasonable likelihood that the result
filing the complaint with the incorrect e.g., Matter of Lozada, 19 I&N Dec. at would have been different if the error[s]
disciplinary authorities would not, on 638; Torres-Chavez v. Holder, 567 F.3d . . . had not occurred’’) (brackets and
its own, excuse noncompliance with the ellipsis in original) (internal quotation
9 The prejudice standard for motions to reopen in
filing requirement. If the individual files marks omitted); Dakane, 399 F.3d at
absentia proceedings based upon a claim of
his or her complaint with the incorrect ineffective assistance of counsel is covered in
1274 (‘‘a reasonable probability that but
disciplinary authorities, he or she section G discussed below. for the attorney’s error, the outcome of
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![49566 Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules
the proceedings would have been adopted by the various circuits. motion should submit any necessary
different’’).10 Furthermore, as the Supreme Court has evidence to establish prejudice,
At the other end of the spectrum, the deemed a ‘‘reasonable probability’’ including affidavits or sworn statements
Ninth Circuit deems the prejudice standard sufficient in the context of from witnesses who were not previously
requirement satisfied so long as an Sixth Amendment criminal cases, the called to testify or whose testimony was
individual can show ‘‘plausible grounds Department considers the standard to be adversely impacted by the
for relief’’ on the underlying claim. See more than sufficient to use in the ineffectiveness of counsel, copies of
United States v. Barajas-Alvarado, 655 context of civil, administrative vital documents that were not submitted
F.3d 1077, 1089 (9th Cir. 2011) (stating immigration proceedings. in a timely manner, persuasive legal
that ‘‘to show ‘plausible grounds’ for Proposed § 1003.48(a)(3) would arguments that should have been
relief, an alien must show that, in light provide that eligibility for relief arising included in missing or deficient briefs,
of the factors relevant to the form of after proceedings have concluded missing applications for relief with
relief being sought, and based on the ordinarily has no bearing on the supporting evidence, and any other
‘unique circumstances of [the alien’s] prejudice determination. Cf. Strickland, evidence that serves to undermine the
own case,’ it was plausible (not merely 466 U.S. at 696 (stating that ‘‘a court decision-maker’s confidence in the
conceivable) that the [immigration making the prejudice inquiry must ask outcome of the case. See generally
judge] would have exercised his if the defendant has met the burden of Strickland, 466 U.S. at 694 (describing
discretion in the alien’s favor’’) (first showing that the decision reached the manner in which the effect of
brackets in original) (quoting United would reasonably likely have been alleged ineffective assistance of counsel
States v. Corrales-Beltran, 192 F.3d different absent the errors’’). There are on the reliability of a previous
1311, 1318 (9th Cir. 1999)); Mohammed exceptions to this general statement, proceeding should be analyzed).
v. Gonzales, 400 F.3d 785, 794 (9th Cir. however. For example, where a Form I– The Department notes that proposed
2005). 130, Petition for Alien Relative, has been § 1003.48 would provide two deviations
The Department has determined that filed with United States Citizenship and from the ‘‘reasonable probability’’
using a prejudice standard modeled Immigration Services (USCIS) at DHS on standard. First, the rule would provide
after Strickland would strike a proper behalf of an individual in removal at § 1003.48(c)(3) that an individual is
balance between providing individuals proceedings, it may, in some instances, prejudiced by counsel’s failure to file a
with a reasonable opportunity to reopen constitute ineffective assistance if petition for review with a Federal
proceedings based upon a meritorious counsel fails to request that the circuit court of appeals if he or she had
ineffective assistance claim and immigration judge continue the ‘‘plausible grounds for relief’’ before the
safeguarding the finality of immigration proceedings to await the adjudication of court. To establish that he or she was so
proceedings. The proposed regulations the petition. Cf. Matter of Hashmi, 24 prejudiced, the individual filing the
would therefore provide that to succeed I&N Dec. 785, 787–94 (BIA 2009) motion must explain, with reasonable
on an ineffective assistance of counsel (articulating the factors for an specificity, the ground or grounds for
claim, an individual needs to establish immigration judge to consider in the petition. Neither the adjudicators
that ‘‘there is a reasonable probability determining whether to continue nor opposing counsel should be
that, but for counsel’s ineffective removal proceedings pending USCIS’s expected to speculate as to what issues
assistance, the result of the proceeding adjudication of an immigrant visa the individuals would have raised on
would have been different.’’ 11 As petition). If counsel acted ineffectively appeal. The requirement that the ground
mentioned above, several circuits have by failing to request a continuance, and or grounds for the petition for review
adopted this standard, which presents a the immigration judge ordered the must be explained ‘‘with reasonable
middle ground among the standards individual removed but USCIS specificity’’ would allow adjudicators to
subsequently granted the petition, it consider the filing party’s sophistication
10 The Eighth Circuit also used a similar standard
would be appropriate to consider the in deciding whether prejudice has been
before it found that there was no constitutionally- individual’s eligibility for adjustment of established. In the Department’s view,
based right to effective counsel in removal
proceedings. See Obleshchenko, 392 F.3d at 972; status in deciding whether he or she while some unrepresented individuals
see also Rafiyev, 536 F.3d at 861 (concluding that was prejudiced. That is, had the may explain the ground or grounds for
there is no constitutional right under the Fifth proceedings been continued, the result appeal in general terms, attorneys and
Amendment to effective assistance of counsel in a of the proceedings may have been accredited representatives should
removal proceeding). The Tenth Circuit has also
employed this standard. See, e.g., Delariva v. different as the individual may have explain, in detail, the factual and legal
Holder, 312 F. App’x 130, 132, 2009 WL 361373 been able to apply for adjustment of bases for appeal.
(10th Cir. 2009) (unpublished) (citing United States status while they were ongoing. The As discussed in section C of this
v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. Department seeks the public’s preamble, for a motion based on
2004) (en banc)).
11 This proposed rule would not provide that comments on this issue, including on counsel’s failure to file a petition for
certain circumstances require a finding of per se whether the reference to eligibility for review to be granted, the individual
prejudice. See generally Matter of Assaad, 23 I&N relief arising after proceedings have filing the motion would first have to
Dec. at 562 (rejecting the argument that the Board concluded should be omitted from the establish that his or her prior counsel’s
should apply a per se standard of prejudice to a conduct was ineffective within the
counsel’s failure to file an appeal in immigration
final rule given the exception noted
proceedings); cf. Siong v. INS, 376 F.3d 1030, 1037 above. scope of the counsel’s representation. If
(9th Cir. 2004) (applying a rebuttable presumption The exact type of evidence that would the individual does not do so, the Board
of prejudice where counsel’s error deprived an suffice to establish a ‘‘reasonable could deny the motion without
individual of any appeal in immigration probability’’ would be dependent upon addressing the issue of prejudice.
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proceedings). Rather, each case would rest on its
own particulars, with the recognition that some
the particular circumstances of a given The second deviation from the
conduct will more typically indicate prejudice, but case. The individual filing the motion ‘‘reasonable probability’’ standard is
that the individual filing the motion always carries would bear the burden, however, to with respect to motions to reopen in
the burden to establish that prejudice does in fact show a reasonable probability that, but absentia proceedings. As discussed in
exist. As discussed in section G, however, an
individual would not be required to establish
for counsel’s ineffective assistance, the section G of this preamble, the rule
prejudice in order to reopen in absentia result of the proceeding would have would provide that an individual filing
proceedings. been different. The individual filing the a motion is not required to establish
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prejudice in order to reopen in absentia have prevented timely filing.’ ’’) abnormal case in which a diligent
proceedings. (brackets in original) (quoting United attempt to comply with the 90-day
States v. Marcello, 212 F.3d 1005, 1010 deadline would have failed, in which
F. Equitable Tolling and the Due
(7th Cir. 2000)). event an appeal to equitable tolling
Diligence Standard in Proposed The First Circuit has not yet decided would lie’’). The Ninth Circuit, by
§ 1003.48 the applicability of equitable tolling to contrast, has held that equitable tolling
As discussed above, motions to the filing deadlines for motions to may in fact have the effect of resetting
reopen based upon a claim of ineffective reopen based upon ineffective the statute of limitations period. See
assistance of counsel must be filed in assistance of counsel, but has assumed Socop-Gonzalez, 272 F.3d at 1196
accordance with the general without deciding that tolling is (‘‘[W]e need only ask whether Socop
requirements for motions provided in available. See Neves, 613 F.3d at 36 filed within the limitations period after
section 240(c)(7) of the Act and (stating that ‘‘[w]e assume arguendo, but tolling is taken into account.’’).
§§ 1003.2 and 1003.23 of the do not decide, that the time and number With respect to the due diligence
regulations. With a few exceptions limits on motions to reopen are subject standard, some courts have emphasized
noted in the regulations, motions to to equitable tolling’’). The Fifth Circuit that the individual filing the motion has
reopen must be filed within either 90 similarly has not decided this question. a duty to investigate whether his or her
days or 180 days of the date of entry of See Reyes-Bonilla v. Lynch, 616 F. counsel is ineffective. See, e.g., Rashid
a final administrative order of removal App’x 193, 194 (5th Cir. 2015) v. Mukasey, 533 F.3d 127, 132–133 n.3
or deportation. In general, a motion to (unpublished) (noting that ‘‘even if the (2d Cir. 2008) (‘‘[A]n alien who is
reopen must be filed within 90 days of immigration statutes are subject to unfamiliar with the technicalities of
the date of entry of a final order A equitable tolling, Reyes-Bonilla has immigration law can, under certain
motion to reopen proceedings to rescind failed to show that such tolling would circumstances, be expected to
an order of removal or deportation apply’’). comprehend that he has received
entered in absentia must be filed within In those circuits that have held that ineffective assistance without being
180 days of the order, however, if the equitable tolling of the filing deadlines explicitly told so by an attorney . . . .
motion alleges that the failure to appear applies, the courts have differed on the Even someone not schooled in the
was because of exceptional precise standard for due diligence. The technicalities of the law ‘should have’
circumstances. Board has not adopted a uniform recognized, under the[ ] circumstances
Every circuit court of appeals to have approach to due diligence, instead [of this case], that his attorney was
addressed the issue has recognized that applying the law of the circuit in which ineffective.’’); see also Singh, 491 F.3d
equitable tolling may apply to untimely the motion was filed. See, e.g., Yuan at 1096–97 (finding that the individual
motions to reopen in some Gao, 519 F.3d at 379. For example, the filing the motion was not eligible for
instances.12 See, e.g., Kuusk v. Holder, Ninth Circuit has found that the filing equitable tolling because he failed to
732 F.3d 302, 305 (4th Cir. 2013); Avila- deadlines are equitably tolled ‘‘until the investigate whether his attorney was
Santoyo v. U.S. Att’y Gen., 713 F.3d petitioner ‘definitively learns’ of ineffective).
1357, 1362–65 (11th Cir. 2013) (en banc) counsel’s fraud,’’ although the petitioner There are also other considerations.
(per curiam); Barry, 524 F.3d at 724; must of course demonstrate that he or Some circuits, such as the Second
Yuan Gao v. Mukasey, 519 F.3d 376, she exercised due diligence prior to this Circuit, have found that due diligence is
377 (7th Cir. 2008); Zhao v. INS, 452 point as well. Singh, 491 F.3d at 1096 required in both discovering the
F.3d 154, 156–57 (2d Cir. 2006); (citing Albillo-DeLeon v. Gonzales, 410 ineffectiveness and taking appropriate
Mahmood v. Gonzales, 427 F.3d 248, F.3d 1090, 1100 (9th Cir. 2005)); see also action upon discovery. See, e.g., Rashid,
251 (3d Cir. 2005); Hernandez-Moran v. Ghahremani v. Gonzales, 498 F.3d 993, 533 F.3d at 132 (noting that ‘‘an alien
Gonzales, 408 F.3d 496, 499–500 (8th 999–1000 (9th Cir. 2007). The Second is required to exercise due diligence
Cir. 2005); Riley v. INS, 310 F.3d 1253, Circuit’s due diligence analysis focuses both before and after he has or should
1257–58 (10th Cir. 2002); Socop- on when the ineffective assistance have discovered ineffective assistance of
Gonzalez v. INS, 272 F.3d 1176, 1187– ‘‘[was], or should have been, discovered counsel’’) (emphasis in original); see
93 (9th Cir. 2001) (en banc). However, by a reasonable person in the situation.’’ also Wang v. Board of Immigration
as some of these courts have noted, Iavorski v. INS, 232 F.3d 124, 134 (2d Appeals, 508 F.3d 710, 715 (2d Cir.
‘‘[e]quitable tolling is an extraordinary Cir. 2000). The Seventh Circuit has 2007) (noting that an individual filing a
remedy which should be extended only stated that ‘‘‘[e]quitable tolling requires motion ‘‘bears the burden of proving
sparingly[.]’’ Mahmood, 427 F.3d at 253 a court to consider whether a reasonable that he has exercised due diligence in
(first brackets in original) (internal person in the plaintiff’s position would the period between discovering the
quotation marks omitted); see also have been aware of the possibility that ineffectiveness of his representation and
Kuusk, 732 F.3d at 306 (adhering ‘‘to the he had suffered’ an injury.’’ Patel, 442 filing the motion to reopen’’). Other
general principle that equitable tolling F.3d at 1016 (quoting Beamon v. courts have similarly required that the
will be granted ‘only sparingly,’ not in Marshall & Ilsley Trust Co., 411 F.3d motion to reopen must be filed within
‘a garden variety claim of excusable 854, 860–61 (7th Cir. 2005) (emphasis in a reasonable time of discovering the
neglect’ ’’) (quoting Irwin v. Dep’t of original)). The Seventh Circuit has also ineffective assistance. See, e.g., Tapia-
Veterans Affairs, 498 U.S. 89, 96 held that when an individual learns of Martinez v. Gonzales, 482 F.3d 417,
(1990)); Hernandez-Moran, 408 F.3d at the ineffective assistance before the 423–24 (6th Cir. 2007) (finding that the
499–500 (‘‘ ‘[E]quitable tolling is granted expiration of the statutory filing period individual filing the motion did not
sparingly. Extraordinary circumstances and fails to explain why he or she was exercise due diligence because she filed
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far beyond the litigant’s control must unable to file the motion within the the motion to reopen more than fifteen
statutory filing period, equitable tolling months after discovering her prior
12 As noted above, equitable tolling refers to is not available and will not ‘‘reset the counsel’s ineffectiveness); see also Pafe
‘‘[t]he doctrine that the statute of limitations will clock.’’ Yuan Gao, 519 F.3d at 379 v. Holder, 615 F.3d 967, 969 (8th Cir.
not bar a claim if the plaintiff, despite diligent
efforts, did not discover the injury until after the
(finding that the individual filing the 2010) (finding that, despite existence of
limitations period had expired.’’ Black’s Law motion had ‘‘failed to point to any fraud and deception by prior attorneys,
Dictionary 579 (8th ed. 2004). circumstances that made this the the Board did not abuse its discretion in
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![49568 Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules
denying a motion to reopen to rescind counsel. The proposed rule would when a claim has accrued such that the
in absentia removal proceedings where provide that an individual exercises due statute of limitations begins to run.17
the individual waited nearly six years to diligence if he or she discovers the The evidence required for
file the motion); Jobe v. INS, 238 F.3d ineffective assistance within the time it demonstrating due diligence would vary
96, 100–01 (1st Cir. 2001) (en banc) should have been discovered by a from case to case. However, to establish
(declining to find due diligence where reasonable person in his or her position. due diligence, an individual would
an individual waited to file a motion to The Department notes that equitable ordinarily have to present evidence that
reopen to rescind an in absentia order tolling would not shorten the filing he or she timely inquired about his or
more than half a year after he ‘‘learned deadlines set out in §§ 1003.2 and her immigration status and the progress
that an [immigration judge] had taken 1003.23. of his or her case.
some action on his asylum application The Department recognizes that some The Department welcomes comments
and was advised to consult an attorney motions to rescind in absentia orders from the public on the appropriateness
immediately’’). and reopen proceedings are not subject of including the remedy of equitable
The Department has determined that to time limitations. See, e.g., Matter of tolling and the proposed standard for
it may be appropriate in certain Bulnes, 25 I&N Dec. 57, 59 (BIA 2009) assessing due diligence in the rule.
circumstances for an immigration judge (motions to reopen to rescind in
or the Board to equitably toll the filing absentia orders where the individual G. Effect of Proposed § 1003.48 on
deadlines in section 240(c)(7) of the Act demonstrates he or she did not receive Motions To Reopen and To Rescind an
and §§ 1003.2 and 1003.23 of the notice); Matter of Cruz-Garcia, 22 I&N Order of Removal, Deportation, or
regulations where the basis of the Dec. 1155, 1157–59 (BIA 1999) Exclusion Entered in Absentia
motion is a claim of ineffective (deportation proceedings under former The proposed rule would add a cross-
assistance of counsel.13 Accordingly, section 242(b) of the Act); Matter of N– reference to new § 1003.48 in the
the proposed rule would provide, at B–, 22 I&N Dec. 590, 591–93 (BIA 1999) regulations governing motions to reopen
§ 1003.48(d), that these filing deadlines (exclusion proceedings). We are proceedings and rescind orders of
shall be tolled if a motion to reopen is soliciting comments on whether the removal, deportation, or exclusion
based upon a claim of ineffective requirements of this new rule should be entered in absentia. An order of removal
assistance of counsel, the ineffective applied to motions to reopen filed in entered in absentia in removal
assistance prevented the timely filing of such cases on the basis of a claim of proceedings pursuant to section
the motion, and the individual filing the ineffective assistance of counsel. 240(b)(5) of the Act may be rescinded
motion exercised due diligence in As discussed above, there is variation upon a motion to reopen filed within
discovering the ineffective assistance. among the courts of appeals regarding 180 days after the date of the order, if
Specifically, the proposed rule would the exact standard for determining that the individual filing the motion
provide that, if an individual exercised an individual exercised due diligence in demonstrates that the failure to appear
due diligence in discovering the discovering ineffective assistance of was because of exceptional
ineffective assistance, he or she has 90 counsel. While eligibility for equitable circumstances as defined in section
days after discovering the ineffective tolling will depend upon the particulars 240(e)(1) of the Act. An order of
assistance to file the motion to reopen. of the case, the Department seeks to exclusion entered in absentia may be
This 90-day filing period would apply promote uniformity in the due diligence rescinded upon a motion to reopen filed
to all motions to reopen based on standard. As such, the Department at any time if the individual
ineffective assistance of counsel, considered various standards of the demonstrates reasonable cause for his or
including motions to reopen to rescind courts of appeals for evaluating due her failure to appear. The standard for
an in absentia order based on diligence. For example, the Department rescinding orders of deportation entered
exceptional circumstances arising from considered standards requiring the in absentia varies. Orders subject to
a claim of ineffective assistance of immigration judge or the Board to section 240(b)(5) of the Act may be
determine when the individual filing rescinded upon a motion filed within
13 The Department notes that there are other the motion, acting with due diligence, 180 days of the order if the individual
regulations governing special motions to reopen for definitively learned of the ineffective demonstrates that the failure to appear
suspension of deportation and cancellation of assistance of counsel,14 or to evaluate was because of exceptional
removal pursuant to section 203(c) of the when a reasonable person in that
Nicaraguan Adjustment and Central American circumstances beyond his or her
Relief Act (NACARA) (Pub. L. 105–100, tit. II) and individual’s position would have been control.18 Orders subject to a provision
section 1505(c) of the LIFE Act Amendments of aware of the possibility that he or she of the INA in effect before June 13, 1992,
2000 (Pub. L. 106–554, tit. XV). See 8 CFR 1003.43. had been prejudiced by counsel’s may be rescinded upon a motion filed
In addition, there are regulations governing special conduct.15 After review of the case law
motions to seek relief under former section 212(c)
of the Act. See 8 CFR 1003.44. The Department discussed above, the Department is 17 Depending upon the type of case, jurisdiction,
notes that there may be circuit law addressing the proposing to include a standard for and applicable exceptions, the ‘‘discovery rule’’
applicability of equitable tolling to the filing evaluating due diligence that would permits an individual to file a suit in a civil case
deadlines of these special motions to reopen. See, within a certain period of time after the injury is
require the immigration judge or the discovered, or reasonably should have been
e.g., Albillo-De Leon, 410 F.3d at 1098 (finding that
section 203(c) of NACARA is subject to equitable Board to determine when the ineffective discovered. See, e.g., Black’s Law Dictionary 499
tolling); Johnson v. Gonzales, 478 F.3d 795, 799 (7th assistance should have been discovered (8th ed. 2004) (defining the discovery rule as ‘‘[t]he
Cir. 2007) (declining, for lack of due diligence, to by a reasonable person in the rule that a limitations period does not begin to run
equitably toll the deadline for filing a motion to until the plaintiff discovers (or reasonably should
individual’s position. This standard is have discovered) the injury giving rise to the
reopen to apply for relief under former section
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212(c) of the Act). This proposed rule would not consistent with the Second Circuit’s claim’’).
address whether ineffective assistance of counsel case law discussed above,16 as well as 18 In addition, removal and deportation orders
may be a basis to toll the filing deadlines of these the ‘‘discovery rule’’ used in certain entered in absentia may be rescinded upon a
special motions. The Department welcomes non-immigration cases to determine motion filed at any time when the individual filing
comment from the public regarding whether the motion demonstrates that he or she did not
ineffective assistance of counsel should be a basis receive the requisite notice, or that he or she was
14 See Singh, 491 F.3d at 1096.
for tolling the filing deadlines of these special in Federal or State custody and the failure to appear
15 See Patel, 442 F.3d at 1016.
motions and whether the proposed rule should be was through no fault of the individual. See INA
expanded to cover those situations. 16 See Iavorski, 232 F.3d at 134. 240(b)(5)(C)(ii).
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at any time if the individual situations that could fall within the of Executive Order 12866. Accordingly,
demonstrates reasonable cause for his or extraordinary circumstances definition the regulation has been submitted to the
her failure to appear. See Matter of and specifically provide that a claim of Office of Management and Budget
Cruz-Garcia, 22 I&N Dec. at 1157–59. ineffective assistance of counsel may (OMB) for review. The Department
As has been established in Board constitute extraordinary circumstances certifies that this regulation has been
precedent, this rule would provide that excusing an applicant’s failure to timely drafted in accordance with the
an individual may establish exceptional file an application for asylum. See 8 principles of Executive Order 12866,
circumstances or reasonable cause, CFR 208.4(a)(5)(iii), 1208.4(a)(5)(iii). section 1(b), and Executive Order 13563.
whichever is applicable, by This rule proposes to amend the EOIR Executive Orders 12866 and 13563
demonstrating that the failure to appear asylum regulations at 8 CFR 1208.4(a)(5) direct agencies to assess all costs and
was due to ineffective assistance of to incorporate some of the language benefits of available regulatory
counsel. See Matter of Grijalva, 21 I&N used in the motion to reopen provisions alternatives and, if regulation is
Dec. 472, 473–74 (BIA 1996); see also in proposed § 1003.48 for extraordinary necessary, to select regulatory
Matter of Rivera, 21 I&N Dec. at 602. In circumstances claims based upon a approaches that maximize net benefits
establishing exceptional circumstances claim of ineffective assistance of (including potential economic,
or reasonable cause based upon counsel. The provisions of the rule environmental, public health, and safety
ineffective assistance of counsel, an addressing the one-year deadline for effects, distributive impacts, and
individual would generally have to filing for asylum will apply upon the equity). Executive Order 13563
comply with the requirements for effective date of the final rule. emphasizes the importance of using the
motions provided in new § 1003.48. The Department notes that this rule best available methods to quantify costs
However, consistent with the Board’s proposes to amend only the EOIR and benefits, reducing costs,
longstanding practice, that individual asylum regulations in 8 CFR 1208.4. harmonizing rules, and promoting
would not be required to establish that V. Regulatory Requirements flexibility.
he or she was prejudiced. See Matter of The Department believes that this
Grijalva, 21 I&N Dec. at 473 n.2; see also A. Regulatory Flexibility Act proposed rule would provide significant
Matter of Rivera, 21 I&N Dec. at 603 n.1. The Department has reviewed this net benefits relating to EOIR
As discussed above, the rule would regulation in accordance with the proceedings. See Executive Order
also permit equitable tolling of the time Regulatory Flexibility Act (5 U.S.C. 12866(b)(6) (stating that ‘‘[e]ach agency
limitations on filing of motions to 605(b)) and has determined that this shall assess both the costs and the
reopen and rescind an in absentia order. rule will not have a significant benefits of the intended regulation and,
Provided that the individual establishes economic impact on a substantial recognizing that some costs and benefits
that he or she exercised due diligence in number of small entities. The rule will are difficult to quantify, propose or
discovering his or her counsel’s not regulate ‘‘small entities,’’ as that adopt a regulation only upon a reasoned
ineffectiveness, the individual would term is defined in 5 U.S.C. 601(6). determination that the benefits of the
have 90 days from when the ineffective intended regulation justify its costs’’).
assistance was discovered to file a B. Unfunded Mandates Reform Act of The proposed rule would help ensure
motion to reopen and rescind an in 1995 the fairness and integrity of these
absentia order.19 The Department notes This rule will not result in the proceedings by setting out a standard set
that equitable tolling does not shorten expenditure by State, local, and tribal of requirements for reopening
the filing deadlines set out in §§ 1003.2 governments, in the aggregate, or by the proceedings, allowing for reopening
and 1003.23. private sector, of $100 million or more where an individual was genuinely
IV. Ineffective Assistance of Counsel in any one year, and it will not subjected to ineffective assistance of
and the Asylum One-Year Filing significantly or uniquely affect small counsel and suffered prejudice as a
Deadline governments. Therefore, no actions were result. The Department is unaware of
deemed necessary under the provisions any monetary costs on public entities
The Department and DHS have of the Unfunded Mandates Reform Act that the rule would impose. Further, the
independent roles and authorities with of 1995. Department does not believe that,
respect to the adjudication of broadly speaking, the proposed rule
applications for asylum under section C. Small Business Regulatory could be said to burden the parties in
208 of the Act. As a general matter, DHS Enforcement Fairness Act of 1996 EOIR proceedings, as the rule simply
asylum officers have authority to This rule is not a major rule as changes an adjudicatory standard used
adjudicate affirmative asylum defined by section 251 of the Small in those proceedings, generally striking
applications filed with USCIS, while the Business Regulatory Enforcement a middle ground between the circuit
immigration judges in EOIR have Fairness Act of 1996. 5 U.S.C. 804. This courts’ approaches.20
authority to adjudicate the asylum rule will not result in an annual effect
applications of individuals who are the on the economy of $100 million or 20 For example, as noted above, the proposed
subject of proceedings before EOIR. more; a major increase in costs or prices; rule’s standard for establishing prejudice would be
Under section 208(a)(2)(D) of the Act, an more lenient than the Sixth Circuit’s current
or significant adverse effects on standard but stricter than the Ninth Circuit’s. The
application for asylum may be competition, employment, investment, proposed rule would provide at § 1003.48(a)(3) that,
considered despite the fact that it was productivity, innovation, or on the for an individual to establish that he or she was
not filed within one year of the ability of United States-based prejudiced by counsel’s ineffective assistance, the
applicant’s arrival in the United States individual must show that ‘‘there is a reasonable
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companies to compete with foreign- probability that, but for counsel’s ineffective
where he or she establishes based companies in domestic and assistance, the result of the proceeding would have
‘‘extraordinary circumstances’’ relating export markets. been different.’’ Currently, the Sixth Circuit
to the delay in filing of the application. requires an individual to ‘‘establish that, but for the
The regulations of EOIR and DHS D. Executive Orders 12866 and 13563 ineffective assistance of counsel, he would have
been entitled to continue residing in the United
provide a non-exclusive list of The proposed rule is considered by States.’’ Sako, 434 F.3d at 864. However, the Ninth
the Department to be a ‘‘significant Circuit simply requires an individual to show that
19 But see supra note 13. regulatory action’’ under section 3(f)(4) Continued
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![49570 Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules
E. Executive Order 13132: Federalism § 1003.23 Reopening or reconsideration this section, only applies to the conduct
before the Immigration Court. of:
This rule will not have substantial * * * * * (i) An attorney or an accredited
direct effects on the States, on the representative as defined in part 1292;
(b) * * *
relationship between the national or
(4) * * *
government and the States, or on the (ii) A person whom the individual
distribution of power and (v) Motions to reopen and rescind an
in absentia order based upon a claim of filing the motion reasonably but
responsibilities among the various erroneously believed to be an attorney
levels of government. Therefore, in ineffective assistance of counsel. A
motion to reopen proceedings and or an accredited representative and who
accordance with section 6 of Executive was retained to represent him or her in
Order 13132, it is determined that this rescind an in absentia order of removal,
deportation, or exclusion is subject to the proceedings before the Board or an
rule does not have sufficient federalism immigration judge.
implications to warrant the preparation the requirements for such motions
(2) Standard for evaluating counsel’s
of a federalism summary impact under paragraph (b)(4)(ii) or
ineffectiveness. A counsel’s conduct
statement. (b)(4)(iii)(A) of this section and
constitutes ineffective assistance of
§ 1003.48. For a motion to reopen
counsel if the conduct was
F. Executive Order 12988: Civil Justice proceedings and rescind an in absentia
unreasonable, based on the facts of the
Reform order of removal, deportation, or
particular case, viewed as of the time of
exclusion, the alien may establish
This rule meets the applicable the conduct.
exceptional circumstances or other (3) Standard for evaluating prejudice.
standards set forth in sections 3(a) and
appropriate legal standards to reopen Except as provided in paragraph (c)(3)
3(b)(2) of Executive Order 12988.
proceedings based upon a claim of of this section, in evaluating whether an
G. Paperwork Reduction Act ineffective assistance of counsel. The individual has established that he or she
alien does not need to establish was prejudiced by counsel’s conduct,
This rule does not propose new or prejudice in order to reopen
revisions to existing ‘‘collection[s] of the Board or the immigration judge shall
proceedings and rescind an order of determine whether there is a reasonable
information’’ as that term is defined removal, deportation, or exclusion
under the Paperwork Reduction Act of probability that, but for counsel’s
entered in absentia based upon a claim ineffective assistance, the result of the
1995, Public Law 104–13, 44 U.S.C. of ineffective assistance of counsel.
chapter 35, and its implementing proceeding would have been different.
Deadlines for motions to reopen and Eligibility for relief occurring after the
regulations, 5 CFR part 1320. rescind an in absentia order based upon conclusion of proceedings will
List of Subjects a claim of ineffective assistance of ordinarily have no bearing on the
counsel may be equitably tolled determination of whether the individual
8 CFR Part 1003 pursuant to § 1003.48(d). The term was prejudiced during the course of
Administrative practice and ‘‘counsel,’’ as used in this subsection, proceedings.
procedure, Aliens, Immigration. only applies to the conduct of an (b) Form, contents, and procedure for
attorney or an accredited representative filing a motion to reopen based upon a
8 CFR Part 1208 as defined in part 1292, or a person claim of ineffective assistance of
Administrative practice and whom the alien reasonably but counsel. A motion to reopen under this
procedure, Aliens, Immigration. erroneously believed to be an attorney section must be filed in accordance with
or an accredited representative and who section 240(c)(7) of the Act or other
Accordingly, for the reasons set forth was retained to represent the alien in applicable statutory provisions, and the
in the preamble, the Attorney General is proceedings. applicable regulations at §§ 1003.2 and
proposing to amend title 8, chapter V of
* * * * * 1003.23 governing motions to reopen.
the Code of Federal Regulations as
■ 3. Add § 1003.48 to subpart A to read The motion must include the following
follows:
as follows: items to support the claim of ineffective
PART 1003—EXECUTIVE OFFICE FOR assistance of counsel:
§ 1003.48 Reopening based upon a claim (1) Affidavit or written statement. (i)
IMMIGRATION REVIEW of ineffective assistance of counsel. The individual filing the motion must,
(a) Standard for adjudication. Except in every case, submit an affidavit, or a
■ 1. The authority for part 1003
as provided in this section, a motion to written statement executed under the
continues to read as follows:
reopen proceedings before the Board or penalty of perjury as provided in 28
Authority: 5 U.S.C. 301, 6 U.S.C. 521; 8 an immigration judge based upon a U.S.C. 1746, setting forth in detail the
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, claim of ineffective assistance of
1226, 1229, 1229a, 1229b, 1229c, 1231,
agreement that was entered into with
counsel will be adjudicated in counsel with respect to the actions to be
1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. accordance with section 240(c)(7) of the taken by counsel and what
2 of 1950; 3 CFR, 1949–1953, Comp., p. 1002; Act and the applicable regulations representations counsel did or did not
section 203 of Pub. L. 105–100, 111 Stat. governing motions at §§ 1003.2 and make to the individual in this regard. If
2196–200; sections 1506 and 1510 of Pub. L. 1003.23. The individual filing the the individual submits a written
106–386, 114 Stat. 1527–29, 1531–32; section motion must demonstrate that counsel’s statement not executed under the
1505 of Pub. L. 106–554, 114 Stat. 2763A– conduct was ineffective and prejudiced penalty of perjury, the Board or the
326 to –328. the individual. immigration judge may, in an exercise
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■ 2. Section 1003.23 is amended by (1) Conduct covered. Except as of discretion committed exclusively to
adding a new paragraph (b)(4)(v), to provided in paragraph (c) of this the agency, excuse the requirement that
read as follows: section, this section covers conduct that the written statement must be executed
occurred while removal, deportation, or under the penalty of perjury, if:
he or she ‘‘had plausible grounds for . . . relief.’’
exclusion proceedings were pending (A) There are compelling reasons why
Barajas-Alvarado, 655 F.3d at 1089 (quotation before the Board or an immigration the written statement was not executed
omitted). judge. The term ‘‘counsel,’’ as used in under the penalty of perjury; and
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![Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules 49571
(B) The motion is accompanied by compelling reasons why he or she was failed to do so. For the individual to
other evidence independently unable to notify the appropriate meet this burden, he or she must submit
establishing that the individual was disciplinary authorities. The fact that a representation agreement making clear
subject to ineffective assistance of counsel has already been disciplined, that the scope of counsel’s
counsel and suffered prejudice as a suspended from the practice of law, or representation included the filing of a
result. disbarred does not, on its own, excuse petition for review, or must otherwise
(ii) In addition, the individual filing the individual from filing the required establish that the scope of the
the motion must submit a copy of any disciplinary complaint. The appropriate representation included the filing of a
applicable representation agreement in disciplinary authorities are as follows: petition for review.
support of the affidavit or written (i) With respect to attorneys in the (3) Establishing prejudice. An
statement. If no representation United States: The licensing authority of individual is prejudiced by counsel’s
agreement is provided, the individual a state, possession, territory, or failure to file a petition for review with
must explain its absence in the affidavit Commonwealth of the United States, or a Federal circuit court of appeals if he
or written statement and provide any of the District of Columbia that has or she had plausible ground for relief
reasonably available evidence on the licensed the attorney to practice law. before the court. To establish that he or
scope of the agreement and the reason (ii) With respect to accredited she was so prejudiced, the individual
for its absence. The Board or an representatives: The EOIR disciplinary filing the motion must explain, with
immigration judge may, in an exercise counsel pursuant to § 1003.104(a). reasonable specificity, the ground or
of discretion committed exclusively to (iii) With respect to a person whom grounds for the petition.
the agency, excuse failure to provide the individual reasonably but (d) Due diligence and equitable
any applicable representation agreement erroneously believed to be an attorney tolling. (1) The time limitations set forth
in support of the affidavit or written or an accredited representative and who in §§ 1003.2 and 1003.23 shall be tolled
statement if the individual establishes was retained to represent him or her in if:
that there are compelling reasons for the proceedings: The appropriate Federal, (i) The motion to reopen is based
failure to provide the representation State, or local law enforcement agency upon a claim of ineffective assistance of
agreement and he or she presents other with authority over matters relating to counsel;
reasonably available evidence regarding the unauthorized practice of law or (ii) The individual filing the motion
the agreement made with counsel. immigration-related fraud. has established that he or she exercised
(2) Notice to counsel. The individual (4) Prejudice. Except as provided in due diligence in discovering the
filing the motion must provide evidence § 1003.23(b)(4)(v), the individual filing ineffective assistance of counsel; and
that he or she informed counsel whose the motion shall establish that he or she (iii) The motion is filed within 90
representation is claimed to have been was prejudiced by counsel’s conduct. days after the individual discovered the
ineffective of the allegations leveled The standard for prejudice is set forth in ineffective assistance of counsel.
against that counsel and that a motion paragraph (a)(3) of this section, except (2) In evaluating whether an
to reopen alleging ineffective assistance as provided in paragraph (c)(3) of this individual has established that he or she
of counsel will be filed on that basis. section. The Board or an immigration has exercised due diligence, the
The individual must provide evidence judge shall not waive the requirement to standard is when the ineffective
of the date and manner in which he or establish prejudice. assistance should have been discovered
she provided notice to prior counsel and (c) Claims of ineffective assistance of by a reasonable person in the
include a copy of the correspondence counsel based upon conduct occurring individual’s position.
sent to the prior counsel and the after entry of a final order of removal, (e) Applicability date. This section
response from the prior counsel, if any, deportation, or exclusion. (1) Scope of applies only to motions filed on or after
or state that no such response was review. After entry of a final order of [effective date of final rule].
received. The requirement that the removal, deportation, or exclusion, the
* * * * *
individual provide a copy of any Board has discretion pursuant to
response from prior counsel continues §§ 1003.2 and 1003.48 to reopen PART 1208—PROCEDURES FOR
until such time as a decision is rendered removal, deportation, or exclusion ASYLUM AND WITHHOLDING OF
on the motion to reopen. The Board or proceedings based upon counsel’s REMOVAL
an immigration judge may, in an failure to file a timely petition for
exercise of discretion committed review in the Federal court of appeals. ■ 4. The authority for part 1208
exclusively to the agency, excuse failure Such discretion, however, shall not continues to read as follows:
to provide the required notice if the extend to other claims based upon Authority: 8 U.S.C. 1103, 1158, 1225, 1231,
individual establishes that there are counsel’s conduct before another 1282.
compelling reasons why he or she was administrative or judicial body. Except ■ 5. Section 1208.4 is amended by
unable to notify the prior counsel. as described in paragraph (c)(3) of this revising paragraphs (a)(5)(iii)(A), (B),
(3) Complaint filed with the section, a motion to reopen based upon and (C) and adding paragraph
appropriate disciplinary authorities. counsel’s failure to file a timely petition (a)(5)(iii)(D) to read as follows:
The individual filing the motion must for review in the Federal court of
file a complaint with the appropriate appeals must meet the requirements set § 1208.4 Filing the application.
disciplinary authorities with respect to forth in paragraph (b) of this section. * * * * *
any violation of counsel’s ethical or (2) Establishing ineffective assistance. (a) * * *
legal responsibilities, and provide a To establish that counsel provided
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(5) * * *
copy of that complaint and any ineffective assistance, an individual (iii) * * *
correspondence from such authorities. seeking to reopen removal, deportation, (A) The applicant files an affidavit, or
The Board or an immigration judge may, or exclusion proceedings based upon a written statement executed under the
in an exercise of discretion committed counsel’s failure to file a timely petition penalty of perjury as provided in 28
exclusively to the agency, excuse the for review in the Federal court of U.S.C. 1746, setting forth in detail the
failure to file a complaint if the appeals must establish that counsel had agreement that was entered into with
individual establishes that there are agreed to file a petition for review but counsel with respect to the actions to be
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![49572 Federal Register / Vol. 81, No. 145 / Thursday, July 28, 2016 / Proposed Rules
taken by counsel and what disciplinary complaint. The appropriate indicating that the nose wheel well is
representations counsel did or did not disciplinary authorities are as follows: subject to widespread fatigue damage
make to the applicant in this regard. If (1) With respect to attorneys in the (WFD). This proposed AD would
the applicant submits a written United States: The licensing authority of require modification of the nose wheel
statement not executed under the a State, possession, territory, or body structure; a detailed inspection of
penalty of perjury, the Board or the Commonwealth of the United States, or the nose wheel body structure for any
immigration judge may, in an exercise of the District of Columbia that has cracking; a surface high frequency eddy
of discretion committed exclusively to licensed the attorney to practice law. current inspection (HFEC) or an open
the agency, excuse the requirement that (2) With respect to accredited hole HFEC inspection of the vertical
the written statement must be executed representatives: The EOIR disciplinary beam outer chord and web for any
under the penalty of perjury, if there are counsel pursuant to § 1003.104(a). cracking; and all applicable related
compelling reasons why the written (3) With respect to a person whom the investigative actions including
statement was not executed under the applicant reasonably but erroneously repetitive inspections, and other
penalty of perjury, and the applicant believed to be an attorney or an specified and corrective actions. We are
submits other evidence establishing that accredited representative and who was proposing this AD to detect and correct
he or she was subject to ineffective retained to represent him or her in fatigue cracking in the nose wheel well
assistance of counsel and suffered proceedings before the immigration structure; such cracking could adversely
prejudice as a result. In addition, in all courts and the Board: The appropriate affect the structural integrity of the
cases, the applicant must either submit Federal, State or local law enforcement airplane.
a copy of any applicable representation agency with authority over matters DATES: We must receive comments on
agreement in support of the affidavit or relating to the unauthorized practice of this proposed AD by September 12,
written statement or explain its absence law or immigration-related fraud. 2016.
in the affidavit or written statement. (D) The term ‘‘counsel,’’ as used in
Failure to provide any applicable this paragraph (a)(5)(iii), only applies to ADDRESSES: You may send comments,
representation agreement in support of the conduct of an attorney or an using the procedures found in 14 CFR
the affidavit or written statement may be accredited representative as defined in 11.43 and 11.45, by any of the following
excused, in an exercise of discretion part 1292 of this chapter, or a person methods:
committed exclusively to the agency, if whom the applicant reasonably but • Federal eRulemaking Portal: Go to
the applicant establishes that there are erroneously believed to be an attorney http://www.regulations.gov. Follow the
compelling reasons that he or she was or an accredited representative and who instructions for submitting comments.
unable to provide any representation • Fax: 202–493–2251.
was retained to represent him or her in
agreement. • Mail: U.S. Department of
proceedings before the immigration
(B) The applicant provides evidence Transportation, Docket Operations, M–
courts and the Board.
that he or she informed counsel whose 30, West Building Ground Floor, Room
representation is claimed to have been * * * * * W12–140, 1200 New Jersey Avenue SE.,
ineffective of the allegations leveled Dated: July 19, 2016. Washington, DC 20590.
against him or her. The applicant must Loretta Lynch, • Hand Delivery: Deliver to Mail
provide evidence of the date and Attorney General. address above between 9 a.m. and 5
manner in which he or she provided [FR Doc. 2016–17540 Filed 7–27–16; 8:45 am]
p.m., Monday through Friday, except
notice to his or her prior counsel; and Federal holidays.
BILLING CODE 4410–30–P
include a copy of the correspondence For service information identified in
sent to the prior counsel and the this NPRM, contact Boeing Commercial
response from the prior counsel, if any, Airplanes, Attention: Data & Services
or state that no such response was DEPARTMENT OF TRANSPORTATION Management, P.O. Box 3707, MC 2H–65,
received. Failure to provide the required Seattle, WA 98124–2207; telephone
Federal Aviation Administration
notice to counsel may be excused, in an 206–544–5000, extension 1; fax 206–
exercise of discretion committed 766–5680; Internet https://
14 CFR Part 39
exclusively to the agency, if the www.myboeingfleet.com. You may view
applicant establishes that there are [Docket No. FAA–2016–8181; Directorate this referenced service information at
compelling reasons why he or she was Identifier 2016–NM–002–AD] the FAA, Transport Airplane
unable to notify counsel. Directorate, 1601 Lind Avenue SW.,
RIN 2120–AA64
(C) The applicant files and provides a Renton, WA. For information on the
copy of the complaint filed with the Airworthiness Directives; The Boeing availability of this material at the FAA,
appropriate disciplinary authorities Company Airplanes call 425–227–1221. It is also available
with respect to any violation of on the Internet at http://
counsel’s ethical or legal AGENCY: Federal Aviation www.regulations.gov by searching for
responsibilities, and any Administration (FAA), DOT. and locating Docket No. FAA–2016–
correspondence from such authorities. ACTION: Notice of proposed rulemaking 8181.
Failure to provide the complaint may be (NPRM).
excused, in an exercise of discretion Examining the AD Docket
committed exclusively to the agency, if SUMMARY: We propose to adopt a new You may examine the AD docket on
the applicant establishes that there were airworthiness directive (AD) for certain the Internet at http://
Lhorne on DSK30JT082PROD with PROPOSALS
compelling reasons why he or she was The Boeing Company Model 747–100, www.regulations.gov by searching for
unable to notify the appropriate 747–100B, 747–100B SUD, 747–200B, and locating Docket No. 2016–8181; or
disciplinary authorities. The fact that 747–200C, 747–200F, 747–300, 747– in person at the Docket Management
counsel has already been disciplined, 400, 747–400D, 747–400F, 747SR, and Facility between 9 a.m. and 5 p.m.,
suspended from the practice of law, or 747SP series airplanes. This proposed Monday through Friday, except Federal
disbarred does not, on its own, excuse AD was prompted by an evaluation by holidays. The AD docket contains this
the applicant from filing the required the design approval holder (DAH) proposed AD, the regulatory evaluation,
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Document Created: 2016-07-28 01:47:40
Document Modified: 2016-07-28 01:47:40
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Written comments must be postmarked and electronic comments must be submitted on or before September 26, 2016. | |
| 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). | |
| FR Citation | 81 FR 49556 | |
| RIN Number | 1125-AA68 | |
| CFR Citation | 8
CFR
1003 8 CFR 1208 | |
| CFR Associated | Administrative Practice and Procedure; Aliens and Immigration |
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