Motions To Reopen and Reconsider; Effect of Departure; Stay of Removal, 75942-75959 [2020-25912]

Download as PDF 75942 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1001 and 1003 [EOIR Docket No. 18–0503; Dir. Order No. 01–2021] RIN 1125–AB01 Motions To Reopen and Reconsider; Effect of Departure; Stay of Removal Executive Office for Immigration Review, Department of Justice. ACTION: Notice of proposed rulemaking. AGENCY: The Department of Justice (‘‘Department’’) proposes to amend Executive Office for Immigration Review (‘‘EOIR’’) regulations governing the filing and adjudication of motions to reopen and reconsider and to add regulations governing requests for discretionary stays of removal. DATES: Written or electronic comments must be submitted on or before December 28, 2020. Written comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System will accept comments prior to midnight Eastern Time at the end of that day. ADDRESSES: You may submit comments, identified by EOIR Docket No. 18–0503, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. To ensure proper handling, please reference EOIR Docket No. 18– 0503 on your correspondence. This mailing address may be used for paper, disk, or CD–ROM submissions. • Hand Delivery/Courier: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact Telephone Number (703) 305–0289. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, telephone (703) 305–0289 (not a toll-free call), or email PAO.EOIR@ usdoj.gov. SUPPLEMENTARY INFORMATION: jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: I. Public Participation Interested persons are invited to participate in this rulemaking by VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 submitting written data, views, or arguments on all aspects of this rule. EOIR also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. To provide the most assistance to EOIR, comments should reference a specific portion of the rule; explain the reason for any recommended change; and include data, information, or authority that support the recommended change. All comments submitted for this rulemaking should include the agency name and EOIR Docket No. 18–0503. Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifiable information (such as a person’s name, address, or any other data that might personally identify that individual) that the commenter voluntarily submits. If you want to submit personally identifiable information as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONALLY IDENTIFIABLE INFORMATION’’ in the first paragraph of your comment and precisely and prominently identify the information of which you seek redaction. 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 and precisely and prominently identify the confidential business information of which you seek redaction. 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 www.regulations.gov. Personally identifiable information and confidential business information provided 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 paragraph above for the agency counsel’s contact information specific to this rule. The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 II. Background Under the Immigration and Nationality Act (‘‘INA’’ or ‘‘Act’’), parties to proceedings before EOIR may file a motion to reopen or reconsider certain decisions of immigration judges or the Board of Immigration Appeals (‘‘BIA’’ or ‘‘Board’’). See INA 240(c)(6)– (7), 8 U.S.C. 1229a(c)(6)–(7); 8 CFR 1003.2, 1003.23. Each such motion must be filed with the immigration court with administrative control over the record of proceeding or with the BIA. See 8 CFR 1003.2, 1003.23. These motions are ‘‘separate and distinct motions with different requirements.’’ Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991) (quoting Chudshevid v. INS, 641 F.2d 780, 783 (9th Cir. 1981)). A motion to reconsider requests ‘‘that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked.’’ Cerna, 20 I&N Dec. at 399. A party may file only one motion to reconsider any given decision, and such motion must be filed within 30 days of a final administrative order of removal. INA 240(c)(6)(A)–(B), 8 U.S.C. 1229a(c)(6)(A)–(B); see also 8 CFR 1003.2(b)(2), 1003.23(b)(1). The motion must specify the errors of law or fact in the prior decision, supported by relevant authority. INA 240(c)(6)(C), 8 U.S.C. 1229a(c)(6)(C); see also 8 CFR 1003.2(b)(1), 1003.23(b)(2). A motion to reopen is a party’s filing to request to reopen proceedings ‘‘so that new evidence can be presented and so that a new decision can be entered, normally after a further evidentiary hearing.’’ Cerna, 20 I&N Dec. at 403. Subject to certain exceptions, a party may file only one motion to reopen proceedings, and such motion must generally be filed within 90 days of the date of entry of a final administrative order of removal. INA 240(c)(7)(A), (C), 8 U.S.C. 1229a(c)(7)(A), (C); see also 8 CFR 1003.2(c)(2), 1003.23(b)(1).1 The motion must state new facts that will be proven at a hearing if the motion is granted and include supporting 1 There are exceptions to the general timing and numerical limitations for certain motions to reopen (1) to apply for asylum under section 208 of the Act, 8 U.S.C. 1158, or withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or under the Convention Against Torture based on changed country conditions; (2) to rescind in absentia orders entered in removal, deportation, or exclusion proceedings; (3) to apply for discretionary relief as a battered spouse, child, or parent; and (4) that are agreed to by all parties and jointly filed. See INA 240(c)(7)(C)(ii)–(iv), 8 U.S.C. 1229a(c)(7)(C)(ii)– (iv); 8 CFR 1003.2(c)(3), 1003.23(b)(4). Certain motions to reopen filed by the Department of Homeland Security in removal proceedings are also not subject to the timing and numerical limitations. See 8 CFR 1003.2(c)(2), 1003.2(c)(3)(iv), 1003.23(b)(1). E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules affidavits or other evidentiary material. INA 240(c)(7)(B), 8 U.S.C. 1229a(c)(7)(B); see also 8 CFR 1003.2(c)(1), 1003.23(b)(3). The Department last significantly amended the immigration court and BIA regulations regarding motions to reopen and reconsider over twenty years ago. In 1996, the Department issued a final rule to establish time and number limitations on such motions pursuant to section 545(d) of the Immigration Act of 1990, Public Law 101–649, 104 Stat. 4978, 5066. See 61 FR 18900 (Apr. 29, 1996). In 1997, the Department issued a second regulation to implement sections 240(c)(6) and (7) 2 of the INA,3 which Congress enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104–208, sec. 304(a), 110 Stat. 3009–546, 3009–593 (1996). See 62 FR 10312, 10330–33 (Mar. 6, 1997); see also 62 FR 444, 449 (Jan. 3, 1997) (proposed rule). Since these changes, the Department has issued multiple Notices of Proposed Rulemaking related to motions to reopen and reconsider, see 81 FR 49556 (July 28, 2016); 67 FR 31157 (May 9, 2002); 63 FR 47205 (Sept. 4, 1998), and the federal courts have elaborated on the relevant regulatory provisions, see, e.g., Dada v. Mukasey, 554 U.S. 1, 12–15 (2008). Further, the Department has maintained multiple entries on its Unified Agenda that reference such motions, such as Immigration Courts and the Board of Immigration Appeals: Motions to Reopen and Reconsider; Effect of Departure or Removal (RIN: 1125–AA74), and Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel (RIN: 1125–AA68). jbell on DSKJLSW7X2PROD with PROPOSALS A. Failure To Surrender and Fugitive Disentitlement The Department previously proposed changes to the regulations that would have established procedures for aliens subject to a final order of removal to surrender to the Immigration and Naturalization Service (‘‘INS’’) and imposed consequences on aliens who 2 At the time, current sections 240(c)(6)– and (7) of the Act (8 U.S.C. 1229a(c)(6)–(7)) were numbered 240(c)(5)– and (6) (8 U.S.C. 1229a(c)(5)–(6)). These provisions were renumbered following the REAL ID Act of 2005, which added a new section 240(c)(4) of to the Act (8 U.S.C. 1229a(c)(4)). See Real ID Act of 2005, Public Law 109–13, div. B, 119 Stat. 231, 304–05. 3 At the time, current sections 240(c)(6) and (7) of the Act were numbered 240(c)(5) and (6). These provisions were renumbered following the REAL ID Act of 2005, which added a new section 240(c)(4) to the Act. See Real ID Act of 2005, Public Law 109–13, div. B, 119 Stat. 231, 304–05 (2005). VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 failed to surrender as required. See 67 FR 31157 (May 9, 2002) (supplementary proposed rule); 63 FR 47205 (Sept. 4, 1998) (proposed rule); see also Matter of Barocio, 19 I&N Dec. 255, 258 (BIA 1985) (‘‘[A]n alien who has violated a lawful order of deportation by failing to report to the Service following notification that his deportation has been scheduled does not merit the favorable exercise of discretion required for reopening of deportation proceedings.’’). Under the proposed rule, an alien who was not detained when an order of removal became final had an affirmative legal obligation to surrender thereafter for removal. 67 FR at 31158. The rule would have incented compliance by denying future discretionary relief to absconding aliens who had failed to comply with their removal obligations. Id. The proposed regulation provided that aliens would receive notice of the duty to surrender and consequences of failing to surrender in the Notice to Appear, as well as from the immigration judge or the BIA, upon release from government custody, and at the time of a grant of voluntary departure. Id. at 31163. An alien who failed to surrender as required would then have been ineligible for discretionary relief under sections 208(b), 8 U.S.C. 1158(b), 212(h), 8 U.S.C. 1182(h), 212(i), 8 U.S.C. 1182(i), 240A, 8 U.S.C. 1229b, 240B, 8 U.S.C. 1229c, 245, 8 U.S.C. 1255, 248, 8 U.S.C.1258, and 249, 8 U.S.C. 1259, of the Act for the period the alien remained in the United States and 10 years after the alien’s subsequent departure. Id. at 31158, 31163. The regulation further provided that the immigration judge and the BIA would similarly not grant a motion to reopen in the case of an alien who had failed to surrender. Id. at 31158, 31161. The regulation crafted some exceptions to the prohibitions if the alien first demonstrated by clear and convincing evidence exceptional circumstances for his failure to surrender, as defined in section 240(e)(1) of the INA, 8 U.S.C. 1229a(e)(1), and that he actually surrendered as soon as possible after the circumstances passed. Id. at 31158. Following the dissolution of the INS and the establishment of the Department of Homeland Security (‘‘DHS’’), neither DHS nor EOIR has finalized the supplementary proposed rule. B. Ineffective Assistance of Counsel Removal proceedings are civil in nature; aliens in removal proceedings have no Sixth Amendment constitutional right to counsel appointed at government expense, nor do they possess a statutory right to such PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 75943 counsel.4 Compare U.S. Const. amend. VI, and Gideon v. Wainwright, 372 U.S. 335 (1964), with INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984), and INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A). Nevertheless, for more than thirty years, the Department has allowed aliens to file a motion to reopen proceedings based on allegations of ineffective assistance of counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988); see also Matter of Assaad, 23 I&N Dec. 553, 556–57 (BIA 2003). Allowing aliens to seek to reopen proceedings based upon ineffective assistance of counsel balances the public interest in ensuring fairness with the public interest in ensuring finality of decisions in removal proceedings. See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) (‘‘There 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.’’). Lozada set forth standards governing motions to reopen based on claims of ineffective assistance of counsel. See Lozada, 19 I&N Dec. at 639; see also Assaad, 23 I&N Dec. at 556–57 (affirming Lozada’s application in removal proceedings). Under Lozada, an alien must meet three procedural requirements for filing such a motion: (1) Provide an affidavit stating the agreement with counsel, including what representations were and were not made; (2) give notice to counsel and an opportunity for counsel to respond; and (3) file a disciplinary complaint with the appropriate authorities or provide an explanation if no complaint has been filed. Lozada, 19 I&N Dec. at 639. In January 2009, Attorney General Mukasey replaced the Lozada framework. See Matter of Compean, Bangaly and J–E–C–, 24 I&N Dec. 710, 727, 732 (A.G. 2009) (‘‘Compean I’’). In June 2009, Attorney General Holder vacated Compean I and reinstated the Lozada framework. See Matter of Compean, Bangaly and J–E–C–, 25 I&N Dec. 1 (A.G. 2009). Attorney General Holder also instructed the Department to initiate rulemaking procedures to evaluate the Lozada framework. See id. at 2. In 2016, the Department proposed to amend EOIR’s regulations by adding filing and adjudication standards for 4 There is a circuit split regarding whether aliens in removal proceedings have a Fifth Amendment due process right to effective assistance of counsel if they choose to employ counsel. See Contreras v. Att’y Gen., 665 F.3d 578, 584 n.3 (3d Cir. 2012) (discussing Circuit split and citing cases); see also Flores-Moreno v. Barr, No. 19–60017, 2020 WL 4931651, at *3 n.2 (5th Cir. Aug. 24, 2020) (assuming without deciding that aliens have such a right). E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75944 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules motions to reopen before an immigration judge and the BIA based upon a claim of ineffective assistance of counsel. 81 FR at 49556. At the time of the proposed rule, courts had variously understood and applied the Lozada framework. The proposed rule sought to establish standard procedural and substantive requirements for filing such motions. Primarily, the proposed rule would have allowed an individual to file a motion to reopen an immigration proceeding upon establishing that he ‘‘was subject to ineffective assistance of counsel and that, with limited exceptions, he or she suffered prejudice as a result.’’ Id. at 49557. The proposed rule would have provided standards for determining ‘‘ineffectiveness’’ and ‘‘prejudice.’’ See id. at 49561, 49565–67. The proposed rule would have required the following documents be included with the motion: ‘‘(1) An affidavit or written statement executed under 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.’’ Id. at 49557. Regarding motions to reopen and rescind an in absentia order based upon a claim of ineffective assistance of counsel, the proposed rule would have codified BIA precedent in Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). In Grijalva, the BIA provided that an in absentia order may be rescinded upon a motion to reopen in which an alien establishes exceptional circumstances or reasonable cause based upon a claim of ineffective assistance ofcounsel. Id. at 473–74; see 81 FR at 49568–69. The alien, however, would not have to establish prejudice. Grijalva, 21 I&N Dec. at 473 n.2; see 81 FR at 49568–69. The proposed rule also provided for the equitable tolling of filing deadlines in certain circumstances based upon a claim of ineffective assistance of counsel. See 81 FR at 49569. Finally, the proposed rule authorized the BIA, in its discretion, to reopen proceedings based upon counsel’s failure to file a timely petition for federal appellate review. See id. at 49566. EOIR received comments on the 2016 rulemaking but did not publish a final rule. Accordingly, the agency currently lacks standardized regulations for such claims, and judicial treatment continues to vary among circuits. For example, the Fifth, Sixth, Seventh, and Tenth Circuits require strict compliance with the Lozada factors. See Hernandez-Ortez v. VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 Holder, 741 F.3d 644, 647 (5th Cir. 2014) (rejecting as ‘‘without merit’’ the argument ‘‘that strict compliance with the Lozada requirements is not necessary’’); Pepaj v. Mukasey, 509 F.3d 725, 727 (6th Cir. 2007) (‘‘An alien who fails to comply with Lozada’s requirements forfeits her ineffectiveassistance-of-counsel claim.’’) (citing Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003)); Marinov v. Holder, 687 F.3d 365, 369 (7th Cir. 2012) (reaffirming the Lozada requirements as ‘‘a necessary condition to obtaining reopening on the basis of ineffective assistance of counsel’’) (quoting Lin Xing Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011)); Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir. 2004) (‘‘[A] motion based on claim of ineffective assistance of counsel must be supported as outlined in Lozada.’’) (citing Mickeviciute v. INS, 327 F.3d 1159, 1161 n.2 (10th Cir. 2003)). Similarly, the First Circuit has repeatedly held that ‘‘[t]he 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.’’ Taveras-Duran v. Holder, 767 F.3d 120, 123 (1st Cir. 2014) (quoting Asaba v. Ashcroft, 379 F.3d 9, 11 (1st Cir. 2004)); see also Garcia v. Lynch, 821 F.3d 178, 181 n.4 (1st Cir. 2016) (noting ‘‘consistent[ ]’’ practice of upholding BIA orders denying motions to reopen when ‘‘the Lozada requirements have been flouted’’). By contrast, the Second, Third, Fourth, Ninth, and Eleventh Circuits require substantial compliance. See Piranej v. Mukasey, 516 F.3d 137, 142 (2d Cir. 2008) (‘‘[T]his Court has ‘not required a slavish adherence to the [Lozada] requirements.’ ’’) (quoting Yi Long Yang v. Gonzales, 478 F.3d 133, 142–43 (2d Cir. 2007)); Rranci v. Att’y Gen., 540 F.3d 165, 173–74 (3d Cir. 2008) (warning of ‘‘inherent dangers . . . in applying a strict, formulaic interpretation of Lozada’’) (quoting Xu Long Yu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001)); Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir. 2006) (‘‘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.’’); CorreaRivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013) (‘‘These requirements ‘are not rigidly applied, especially when the record shows a clear and obvious case of ineffective assistance.’ ’’) (quoting Rodriguez-Lariz v. INS, 282 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 F.3d 1218, 1227 (9th Cir. 2002)); FloresPanameno v. Att’y Gen., 913 F.3d 1036, 1040 (11th Cir. 2019) (requiring ‘‘substantial, if not exact compliance’’ with Lozada) (citing Dakane v. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005)). Finally, the Eighth Circuit appears not to have staked out any definitive position. See Habchy v. Gonzales, 471 F.3d 858, 863 (8th Cir. 2006) (‘‘Our circuit has not ruled on whether a strict application of those [Lozada] requirements could constitute an abuse of discretion in certain circumstances, and we need not do so here. At the very least, an IJ does not abuse his discretion in requiring substantial compliance with the Lozada requirements when it is necessary to serve the overall purposes of Lozada[.]’’); Avitso v. Barr, 975 F.3d 719, 722 (8th Cir. 2020) (citing Habchy and stating both that the alien ‘‘must . . . satisfy the procedural requirements of Lozada’’ and that he ‘‘did not substantially comply with these requirements’’). Further, circuit courts use various standards to evaluate prejudice. The First, Third, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits require a finding of reasonable probability that the error impacted the outcome of the proceeding. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Fadiga v. Att’y Gen., 488 F.3d 142, 158–59 (3d Cir. 2013); Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018); Kada v. Barr, 946 F.3d 960, 965 & n.1 (6th Cir. 2020); Ortiz-Punetes v. Holder, 662 F.3d 481, 485 n.2 (8th Cir. 2011) (citing Obleshchenko v. Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004)); Mena-Flores v. Holder, 776 F.3d 1152, 1169 & n.25 (10th Cir. 2015) (citing United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004)); Flores-Panameno, 913 F.3d at 1040 (citing Dakane, 399 F.3d at 1274). The Third Circuit, however, has instructed that the ‘‘reasonability probability’’ standard requires ‘‘merely a ‘significant possibility.’ ’’ CalderonRosas v. Att’y Gen., 957 F.3d 378, 387 (3d Cir. 2020) (quoting United States v. Payano, 930 F.3d 186, 193 n.5 (3d Cir. 2019)). The Seventh and Ninth Circuits maintain a more lenient standard, requiring a finding that the error may have affected the outcome of the proceeding. See Garcia-Arce v. Barr, 946 F.3d 371, 378 (7th Cir. 2019) (‘‘The prejudice prong requires a showing that counsel’s errors actually had the potential for affecting the outcome of the proceedings.’’) (quoting Sanchez v. Sessions, 894 F.3d 858, 862–63 (7th Cir. 2018)); Flores v. Barr, 930 F.3d 1082, 1088–89 (9th Cir. 2019) (‘‘[T]he question E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS with respect to prejudice is whether counsel’s deficient performance ‘may have affected the outcome of the proceedings,’ which means that the petitioner ‘need only show plausible grounds for relief.’ ’’) (quoting Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008)). The Second Circuit, for its part, has stated that, in the context of an application for relief, to establish prejudice the alien must show prima facie eligibility and that he ‘‘could have made a strong showing in support of his application.’’ Scarlett v. Barr, 957 F.3d 316, 326 (2d Cir. 2020) (quoting Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994)). Given these diverse judicial interpretations and the need for uniform direction on this subject, this rule proposes new changes to establish standardized procedures for adjudicating motions to reopen on the basis of claims of ineffective assistance of counsel in the context of broader rules regarding motions to reopen. As discussed below, this rule also addresses a number of larger issues related to all types of motions to reopen that go beyond the scope of the 2016 proposed rule, which was limited only to motions alleging ineffective assistance of counsel. Accordingly, this broader, more comprehensive rule would withdraw the narrower 2016 proposed rule.5 C. Departure Bar Both the BIA and immigration court regulations contain restrictions on the filing of motions to reopen or reconsider following an alien’s departure from the United States—commonly referred to as the ‘‘departure bar.’’ See 8 CFR 1003.2(d), 1003.23(b)(1). Specifically, the regulations prohibit an alien from filing a motion to reopen or reconsider following the alien’s departure from the United States if the alien is subject to a final administrative order of removal, deportation, or exclusion. Id. The regulations further instruct that a departure from the United States constitutes the withdrawal of a previously filed motion to reopen or motion to reconsider. Id. The departure bar regulations predate Congress’s inclusion of a statutory right to file a motion to reopen and a motion to reconsider in section 240(c)(6) and (7) of the INA, 8 U.S.C. 1229a(c)(6)–(7). See, e.g., Matter of G–Y–B-, 6 I&N Dec. 159, 159–60 (BIA 1954) (discussing the 1952 5 Because the Department is withdrawing the previous proposed rule, the Department does not directly address the comments received on that proposed rule; all commenters are encouraged to resubmit relevant comments for the Department’s response in the context of this proposed rule. VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 version of the departure bar regulations). This has led some to question whether the departure bar regulations are, in effect, superseded by the statute. The BIA held over a decade ago that ‘‘the departure bar rule remains in full effect.’’ Matter of Armendarez, 24 I&N Dec. 646, 660 (BIA 2008). More recent federal circuit court decisions, however, have found that the departure bar now ‘‘clearly conflicts’’ with the INA, or that its application ‘‘impermissibly restricts’’ the BIA’s jurisdiction. Toor v. Lynch, 789 F.3d 1055, 1057 n.1 (9th Cir. 2015) (noting decisions from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits). While the Department has previously stated that it would initiate rulemaking to address the departure bar, see 77 FR 59567, 59568 (Sept. 28, 2012), no relevant regulation has been proposed to date. This rule would address the matter. III. Regulatory Changes Over the past twenty years, the Department has issued multiple Notices of Proposed Rulemaking related to motions to reopen and reconsider. See 81 FR at 49556; 67 FR at 31157 (supplementary proposed rule); 63 FR at 47205 (proposed rule). Further, the Department has maintained multiple entries on its Unified Agenda that reference such motions, such as Immigration Courts and the Board of Immigration Appeals: Motions to Reopen and Reconsider; Effect of Departure or Removal (RIN: 1125– AA74), and Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel (RIN: 1125–AA68). None of these rulemakings has ever been finalized, and rather than continue to assess these related issues in a piecemeal fashion, the Department believes that a more comprehensive rulemaking would be the most efficient way to consolidate and address them. Accordingly, the Department now proposes to consolidate and address all of these issues in the proposed rulemaking. The proposed rule would amend 8 CFR 1001.1, 1003.2, and 1003.23 and add a new section 1003.48 in subpart C. The proposed regulation would also amend the headings and table of contents of subpart C so that proposed section 1003.48 would apply to motions to reopen and related issues before both the BIA and the immigration courts. The proposed rule would also codify a clear definition of ‘‘depart’’ and ‘‘departure’’ applicable to various contexts, including those related to a grant of PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 75945 advance parole. The proposed changes are as follows: A. Revision of the Departure Bar Consistent with precedent from every circuit court to have addressed the issue, and in accordance with the Department’s commitment to initiate rulemaking to address the departure bar, the Department now proposes to remove the departure bar from 8 CFR 1003.2(d) and 1003.23(b)(1). Specifically, the Department proposes to remove the prohibition on the submission of motions to reopen or reconsider by an alien subject to a final order of removal, deportation, or exclusion following the alien’s removal or departure from the United States. An alien would be allowed to file a motion to reopen or reconsider whether or not the alien is physically present in the United States, though whether that motion could be granted would remain subject to applicable law, and whether an alien is physically present in the United States may determine their prima facie eligibility for relief.6 See, e.g., Sadhvani v. Holder, 596 F.3d 180 (4th Cir. 2009) (holding that the Board did not abuse its discretion in denying a motion to reopen an asylum application from an alien outside of the United States because presence in the United States is required for asylum eligiblity). The Department also proposes to remove the provision that treats an alien’s nonvolitional departure as a withdrawal of a motion to reopen or reconsider. In lieu of the existing departure bar, this rule proposes to add a narrow withdrawal provision stating that an alien’s volitional departure from the United States, while a motion to reopen or reconsider is pending, constitutes a withdrawal of that previously filed motion to reopen or motion to reconsider. Further, the proposed rule would define ‘‘depart’’ and ‘‘departure,’’ so that this provision would apply only to volitional physical departures of an alien from the United States. See 8 CFR 6 In addition, EOIR does not have the authority to order DHS to parole or admit an alien physically outside the United States into the United States following the grant of a motion to reopen or reconsider. Consequently, the granting of a motion to reopen or reconsider for an alien outside the United States would not necessarily mean that the alien would return to the United States. It may, however, undo a previous termination of an alien’s status as a lawful permanent resident (LPR). See 8 CFR 1001.1(p) (‘‘Such status terminates upon entry of a final administrative order of exclusion, deportation, removal, or rescission.’’); Matter of Lok, 18 I&N Dec. 101, 106 (BIA 1981). In such a case, the alien may be eligible to enter the United States as a returning LPR, though that determination will ultimately be made by DHS in the first instance, upon the alien’s physical return to the United States and application for admission. E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75946 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules 1001.1(cc) and (dd) (proposed). This includes aliens who leave the United States after a final removal order is entered but still without having DHS enforce the order. However, the physical removal, deportation, or exclusion from the United States at the direction of DHS, or a return of the alien to a contiguous territory by DHS in accordance with section 235(b)(2)(C) of the Act, 8 U.S.C. 1225(b)(2)(C), is specifically excluded from the definition and would not constitute a departure for purposes of deeming a motion withdrawn. The Department believes that this narrow withdrawal provision does not implicate the concerns that have led the federal circuit courts to refuse to apply the existing departure bar. First, the proposed withdrawal provision would not prevent aliens from filing motions to reopen or reconsider based on the alien’s geographic location. The circuit courts have held that sections 240(c)(6) and (c)(7) of the Act, 8 U.S.C. 1229a(c)(6) and (c)(7), do not impose any geographic restrictions on the filing of motions to reopen or reconsider. See, e.g., Santana v Holder, 731 F.3d 50, 56 (1st Cir. 2013) (holding that the statute ‘‘nowhere prescribes, or even suggests, a geographic restriction on ‘an alien [who] may file’ the motion’’). Consistent with these holdings, this withdrawal provision would allow an alien to file a motion to reopen or reconsider from abroad, regardless of how the alien left the United States before filing the motion. Additionally, this proposed rule merely treats an already-filed motion as withdrawn upon the alien’s volitional departure from the United States, and such a motion would be denied accordingly. In this way, this proposed rule would function identically to how an alien’s right to appeal is waived if the alien volitionally departs the United States prior to taking an appeal and how an alien’s appeal, other than for an arriving alien, is withdrawn if the alien volitionally departs the United States while the appeal is pending. See 8 CFR 1003.3(e), 1003.4; see also Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) (holding that a volitional departure—even one that is ‘‘brief, casual, and innocent’’constitutes a withdrawal of an appeal pursuant to 8 CFR 1003.4); Madrigal v. Holder, 572 F.3d 239, 244–45 & n.5 (6th Cir. 2009) (interpreting 8 CFR 1003.3(e) and 1003.4 as having an implicit volitional element to their waiver provisions); cf. 8 CFR 1208.8(a) (‘‘An applicant [for asylum] who leaves the United States without first obtaining advance parole . . . shall VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 be presumed to have abandoned his or her application.’’). Second, the proposed withdrawal provision eliminates any tension between the alien’s right to file a motion to reconsider or reopen within 30 or 90 days, respectively, and DHS’s requirement to remove the alien within 90 days of a final removal order. Compare INA 240(c)(6)–(7), 8 U.S.C. 1229a(c)(6)–(7), with INA 241(a)(1), 8 U.S.C. 1231(a)(1). The majority of circuit courts have held that the existing departure bar conflicts with an alien’s statutory right to file a motion to reopen or reconsider because the alien’s nonvolitional removal by DHS would trigger the departure bar even if the removal occurred within the time periods allowed to file the motions. See, e.g., Prestol Espinal v. Att’y Gen., 653 F.3d 213, 223 (3d Cir. 2011) (‘‘If aliens are permitted to file motions to reconsider but are then removed by the government before the time to file has expired, the right to have that motion adjudicated is abrogated’’); Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (‘‘The only manner in which we can harmonize the provisions simultaneously affording the petitioner a ninety day right to file a motion to reopen and requiring the alien’s removal within ninety days is to hold. . . . that the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.’’). The proposed withdrawal provision addresses this concern by limiting the provision only to an alien’s volitional departure, which the Department believes evidences the alien’s intention to abandon the motion or to otherwise fail to prosecute it.7 By definition, an alien who would be subject to the proposed volitional departure bar would already be subject to an administratively final order of removal. Therefore, the alien would know the consequences of departing the United States and, thus, executing that removal order. See Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 2006) (‘‘It is well settled that when an alien departs the United States while under a final order of deportation, he or she executes that order pursuant to the law. . . . Once an alien departs, thereby executing the order of deportation, he loses his right to contest the lawfulness of the proceedings.’’ (internal quotation omitted)); see generally 8 CFR 241.7, 1241.7 (providing that an alien executes an 7 Any departure resulting from a DHS removal would no longer constitute a departure that results in a withdrawal of the motion under the regulations. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 outstanding removal order or ‘‘selfremoves’’ when he departs the United States). Moreover, the alien would also know that if he were to illegally re-enter the United States after executing that order, he may be ineligible to seek to reopen that original order. INA 241(a)(5), 8 U.S.C. 1231(a)(5). Thus, an alien’s volitional departure notwithstanding these consequences would represent a conscious decision by the alien to forgo further presence in the United States and evince an effort to abandon or stop pursuing efforts at remaining. Such a decision to depart of the alien’s own accord would be generally inconsistent with an effort to undo a removal order that, if successful, would allow an alien to remain. Moreover, although a motion to reopen is provided for by statute, INA 240(c)(7), 8 U.S.C. 1229a(c)(7), whereas an appeal to the Board is not, a motion to reopen nevertheless functions similarly to an appeal to the Board of a removal order issued by an immigration judge. In both situations, an alien is mounting a challenge to the denial of the alien’s request to remain in the United States. As discussed, an alien’s departure after the filing of an appeal but before a decision has been issued by the Board usually serves as a withdrawal of the appeal, 8 CFR 1003.4,8 and federal courts have generally affirmed the validity of this departure bar for appeals, see, e.g., Aguilera-Ruiz, 348 F.3d at 838. Further, multiple courts have read an implicit volitional requirement into the application of 8 CFR 1003.4, similar to the one proposed by the Department in this rule for motions to reopen or reconsider. See, e.g., Madrigal, 572 F.3d at 244–45 & n.5; Lopez-Angel v. Barr, 952 F.3d 1045, 1048–49 (9th Cir. 2019) (following Madrigal); see also Coyt, 593 F.3d at 907 (agreeing with Madrigal and reaching a similar conclusion with respect to 8 CFR 1003.2(d)). Finally, at least one court has noted that the Department could simply engage in rulemaking to establish a volitional departure bar to motions to reopen or reconsider as a categorical discretional determination. Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 8 There is a regulatory exception to the withdrawal provision in 8 CFR 1003.4 for an ‘‘arriving alien’’ as defined in 8 CFR 1001.1(q) that appears to be based on a historical distinction between deportation proceedings for aliens who had entered the United States and exclusion proceedings for aliens who were stopped at a port of entry. See 8 CFR 1003.4; Matter of Keyte, 20 I&N Dec. 158, 159 (BIA 1990) (‘‘The departure pending appeal of an alien who has been stopped at the border and ordered excluded is not necessarily incompatible with a design to prosecute the appeal to a conclusion.’’). E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS 2010) (‘‘An agency may exercise discretion categorically, by regulation, and is not limited to making discretionary decisions one case at a time under open-ended standards.’’). To that end, the proposed rule reflects the Department’s discretionary determination that a motion to reopen or reconsider should be deemed withdrawn when an alien volitionally departs the United States after filing the motion but before it is decided. While nearly every circuit has opined on the apparent tension between the existing departure bar and the statutory right to file a motion to reopen and reconsider, see Toor, 789 F.3d at 1060 n.3 (collecting cases), no court has decided whether the voluntary or involuntary nature of an alien’s departure should determine if a previously filed motion to reopen is deemed withdrawn under 8 CFR 1003.2(d) or 1003.23(b). The Ninth Circuit has stated that the departure bar is ‘‘invalid irrespective of how the noncitizen departed the United States,’’ but its analysis was limited to the departure bar provisions that this proposed regulation would remove— that an alien may not file a motion to reopen following his departure from the United States. Id. at 1059, 1064. Under the proposed regulation, an alien may file a motion to reopen orreconsider following departure from the United States regardless of whether the departure was volitional. But under the proposed rule, a motion would be deemed withdrawn when an alien has volitionally departed the United States after filing the motion but before it is decided. Therefore, for the purposes of this rule, the terms ‘‘depart’’ and ‘‘departure’’ are defined to mean the voluntary physical departure of an alien from the United States. Cf. Lopez-Angel, 952 F.3d at 1050 (Lee, J., concurring) (‘‘The ordinary meaning of the word ‘departure’ refers to a volitional act. . . . The context of the word ‘departure’ [in 8 CFR 1003.4] also suggests that it does not include forcible removals.’’). B. Definition of ‘‘Depart’’ and ‘‘Departure’’ As stated above, the proposed rule would define the terms ‘‘depart’’ and ‘‘departure’’ consistent with their ordinary meaning, which includes any voluntary physical departure from the United States. The INA does not define ‘‘depart’’ or ‘‘departure,’’ but such a definition is also consistent with existing regulations and a precedential decision of the BIA. Regulations controlling the departure of aliens in parts 215 and 1215 of 8 CFR VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 define the phrase ‘‘depart from the United States’’ to mean, inter alia, to ‘‘depart by land, water, or air . . . [f]rom the United States for any foreign place.’’ 8 CFR 215.1(h), 1215.1(h). These regulations reflect a common-sense, geography-based understanding of the meaning of departure. Although this definition applies only to the concept of departure in parts 215 and 1215, the BIA nevertheless relied on it, in part, in analyzing the status of an alien who left the United States, was denied refugee status in Canada, and then returned to the United States, concluding that the alien had ‘‘departed’’ the United States and was therefore an ‘‘arriving alien’’ not removable under section 237(a)(1)(B) of the INA, 8 U.S.C. 1227(a)(1)(B). See Matter of R-D-, 24 I&N Dec. 221, 223 (BIA 2007). In Matter of Lemus, the BIA also recognized that there was a ‘‘plain and ordinary meaning’’ of the term ‘‘departure,’’ which was defined broadly. 24 I&N Dec. 373, 376–77 (BIA 2007) (‘‘Lemus-Losa I’’). Further, the BIA held that leaving the United States pursuant to a grant of advance parole is a ‘‘departure’’ for purposes of section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(II). See id. In 2012, prior to deciding Arrabelly, the BIA affirmed Lemus-Losa I. See Matter of Lemus-Losa, 25 I&N Dec. 734 (2012). In contrast, in Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012), the BIA held that leaving the United States pursuant to a grant of advance parole is not a ‘‘departure’’ under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(II). See Arrabally, 25 I&N Dec. at 778–80. The BIA relied heavily on what it surmised was ‘‘Congress’ intent’’ and the ‘‘manifest purpose’’ of the statutory provision. Id. at 776.9 Yet the decision did not address the BIA’s prior view of the concept of departure in Matter of R-D-, unpersuasively disregarded earlier precedential decisions on all fours, and failed to engage the regulatory text of 8 CFR 215.1(h) and 1215.1(h). Despite acknowledging that parole is never guaranteed, it found that a departure following a grant of advance parole was qualitatively different than other types of departures. In doing so, it disregarded the plain text of the statute, BIA precedent in Matter of R-D- and LemusLosa I, the text of 8 CFR 215.1(h) and 9 In Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007) (‘‘Lemus-Losa I’’), the BIA held that leaving the United States pursuant to a grant of advance parole is a ‘‘departure’’ for purposes of section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(II). See Lemus-Losa I, 24 I&N Dec. at 376–77. In 2012, prior to deciding Arrabelly, the BIA affirmed Lemus-Losa I. See Matter of LemusLosa, 25 I&N Dec. 734 (2012). PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 75947 1215.1(h), and over twenty years of policy and practice to the contrary in lieu of a previously-unidentified ‘‘Congressional intent.’’ Id. at 774–77. The BIA’s decision in Arrabally departed from a common-sense understanding of the term ‘‘departure’’ and disregarded a significant body of law and policy without a strong justification. In order to appropriately administer the law, the Department must have a uniform definition of ‘‘depart’’ and ‘‘departure’’ to apply. The definition contained in the proposed rule is consistent with the INA, with other regulations, with historical practice, and with relevant case law, except for Arrabally, which represents an unsupported outlying view. Accordingly, as a adjunct of the Department’s consideration of the effect of departures on certain motions, the proposed rule would overrule the BIA’s decision in Arrabally. C. Failure To Surrender and Fugitive Disentitlement The proposed regulation would provide that the moving party shall include in any motion to reopen or reconsider: (1) Whether or not the subject of the order of removal, deportation, or exclusion was notified to surrender to DHS for removal, deportation, or exclusion; and (2) whether the subject, if so ordered, has complied. This rule does not propose any restrictions on the format of the surrender notification or when the notification must be given; it provides only that the immigration judge or BIA will consider all relevant information regarding any notification and the corresponding compliance or noncompliance in determining whether to grant a motion to reopen or to reconsider as a matter of discretion. When adjudicating the motion, the judge or the BIA ‘‘is required to weigh both favorable and unfavorable factors by evaluating all of them, assigning weight or importance to each one separately and then to all of them cumulatively.’’ Franco-Rosendo v. Gonzales, 454 F.3d 965, 966–67 (9th Cir. 2006) (citing Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.1998)). After being given notice of the surrender requirement, an alien’s failure to surrender would generally be treated as an unfavorable factor in this determination, consistent with longstanding case law holding that an alien’s failure to report for removal represents a ‘‘deliberate flouting of the immigration laws’’ and therefore counts as a ‘‘a very serious adverse factor which warrants the denial’’ of a E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75948 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules discretionary motion, such as a motion to reopen or reconsider. Matter of Barocio, 19 I&N Dec. 255 (BIA 1985); see Franco-Rosendo, 454 F.3d at 966–67 (citing cases in support of the proposition). In the same vein, this proposed change adapts the fugitive disentitlement doctrine, according to which a court dismisses an appeal if the subject absconds while it is pending, from the federal court system to the immigration courts by explicitly providing that failure to surrender is an adverse factor for consideration. The fugitive disentitlemlent doctrine has existed ‘‘for well over a century’’ in the criminal law because it ‘‘serves an important detterence function’’ and protects ‘‘the enforceability of a court’s judgments.’’ Martin v. Mukasey, 517 F.3d 1201, 1204–05 (10th Cir. 2008); see also Degen v. United States, 517 U.S. 820, 823–24 (1996) (explaining the doctrine). It has been extended to the immigration context, where ‘‘the petitioners are fugitive aliens who have evaded custody and failed to comply with a removal order.’’ Giri v. Keisler, 507 F.3d 833, 835 (5th Cir. 2007); see also Martin, 517 F.3d at 1204; Sapoundjiev v. Ashcroft, 376 F.3d 727, 728–29 (7th Cir. 2004) (‘‘A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action.’’); Bar-Levy v. Dep’t. of Justice, INS, 990 F.2d 33, 35 (2d Cir. 1993) (‘‘Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice. Like the fugitive in a criminal matter, the alien who is a fugitive from a deportation order should ordinarily be barred by his fugitive status from calling upon the resources of the court to determine his claims.’’). The Department believes that the proposed requirement to notify the immigration judge or the BIA whether the alien has complied with an order to surrender would appropriately balance an alien’s statutory right to file a motion to reopen reconsider with the government’s interests in ‘‘encourage[ing] voluntary surrenders’’ and avoiding ‘‘the difficulty of enforcing a judgment against a fugitive.’’ Bright v. Holder, 649 F.3d 397, 399 (5th Cir. 2011). It is also fully consistent with the Department’s position for over thirty years that ‘‘the incentives for an alien to voluntarily depart from the United States or to submit to a deportation order are abated by the availability of procedures which provide a seemingly endless opportunity to seek relief from VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 deportation’’ and that adjudicators should ‘‘decline to reward [such] disdain for the law by exercising [their] discretion to reopen proceedings.’’ Barocio, 19 I&N Dec. at 258. In light of the revised approach set forth above, the Department does not intend at this time to pursue finalization of either of the previous proposed rules regarding the effect of failure to surrender, as published at 67 FR at 31157 and 63 FR at 47205. D. Standards for Motions To Reopen or Reconsider Generally The Department proposes to add general standards to further clarify the requirements for the adjudication of motions to reopen or reconsider by the immigration courts and the BIA. Currently, the regulations require that an alien who files a motion to reopen in order to submit an application for relief must include the application, and any supporting documents, together with the motion. See 8 CFR 1003.2(c)(1), 1003.23(b)(3). The proposed rule would provide additional guidance regarding the impact that the nature of the relief the alien seeks may have on the adjudication of the motion to reopen or reconsider. If an alien’s motion to reopen or reconsider is premised upon relief that the immigration judge or the BIA lacks authority 10 to grant, the judge or the BIA may only grant the motion if another agency has first granted the underlying relief. Neither an immigration judge nor the BIA may reopen proceedings due to a pending application for relief with another agency if the judge or the BIA would not have authority to grant the relief in the 10 Recognizing that the word ‘‘jurisdiction’’ is one of ‘‘many, too many meanings,’’ Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 81 (2009), and that its use in the context of both motions and underlying applications may be confusing, the Department believes this point is better framed in terms of authority rather than jurisdiction. There are many immigration applications which the Department lacks authority to adjudicate because such authority is committed to DHS. See, e.g., 8 U.S.C. 1255(l)(1) (stating that DHS has exclusive authority to grant adjustment of status to an alien with a T visa); Matter of Sanchez-Sosa, 25 I&N Dec. 807, 811 (BIA 2012) (‘‘The [DHS] has exclusive [authority] over U visa petitions and applications for adjustment of status under section 245(m) of the Act.’’); Matter of Martinez-Montalvo, 24 I&N Dec. 778, 778–89 (BIA 2009) (stating that immigration judges have no authority to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application); Matter of Singh, 21 I&N Dec. 427, 433– 34 (BIA 1996) (stating that EOIR lacks authority to adjudicate legalization applications pursuant to section 245A of the INA). PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 first instance,11 though the alien may seek a stay of removal in such a circumstance with DHS pursuant to 8 CFR 241.6. In other words, there is neither a legal nor an operational basis for the BIA or an immigration judge to reopen proceedings in which neither can offer redress to the alien on an underlying application, and the inability to offer redress does not prejudice the alien because the alien can always apply to DHS for a stay of removal while DHS adjudicates the underlying application. This proposed rule is also fully consistent with longstanding precedent, discussed below, that both requires an alien to demonstrate prima facie eligibility for relief in order to have a motion to reopen granted and allows a motion to reopen to be denied as a matter of discretion even when prima facie eligibility has been shown. In short, this change would codify Matter of Yauri, 25 I&N Dec. 103, 107–10 (BIA 2009), in chapter V of the regulations and make clear that neither the Board nor an immigration judge will exercise discretion to reopen proceedings in cases in which neither the Board nor an immigration judge has authority over the application the alien is ultimately pursuing.12 11 Many reasons militate against granting a motion to reopen based on an underlying application over which an immigration judge and the Board lack authority. Chief among those reasons is the finite nature of the agency’s resources, which should be allocated to matters over which EOIR adjudicators have authority. Expending adjudicative and administrative reources on matters over which the agency has no authority results in more unnecessary and time-consuming continuances, difficulty maintaining open cases that rely on outside considerations, and the need to enter orders that simply restate another’s findings and holdings. See Matter of Yauri, 25 I&N Dec. 103, 110–11 (BIA 2009). 12 In Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), the Ninth Circuit held that the Board possessed sua sponte authority to reopen a proceeding involving an application over which it lacked authority and to effectively grant a stay of removal, notwithstanding the decision in Yauri. See Singh, 771 F.3d at 652. Singh, however, did not address the Board’s determination in Yauri that it would not exercise its discretion—even acting within its sua sponte authority—to reopen cases involving applications over which it lacked authority. Compare id. at 653 (‘‘Because the BIA denied Singh’s motion only for lack of authority, we grant the petition and remand to the BIA.’’), with Yauri, 25 I&N Dec. at 110 (‘‘Finally, and separately from any question of jurisdiction, with regard to untimely or number-barred motions to reopen, we conclude that sua sponte reopening of exclusion, deportation, or removal proceedings pending a third party’s adjudication of an underlying application that is not itself within our [authority] ordinarily would not be warranted as a matter of discretion.’’). Singh also did not address the availability of a stay of removal from DHS in circumstances in which DHS has sole authority over the application at issue. See 8 CFR 241.6. Consequently, the extent to which the Board has discretion to deny motions in support of E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS Similarly, under the proposed rule, if the alien seeks relief that the immigration judge or the BIA would have authority to grant, the immigration judge or the BIA would be able to grant the motion only if the alien first establishes prima facie eligibility for that relief. In other words, a lack of prima facie eligibility would be sufficient for an immigration judge or the BIA to deny a motion to reopen or reconsider. Such prima facie eligibility must include evidence that the alien has the relevant approved, current visa, if a visa is required. This proposed rule would therefore codify and explicate the same longstanding rule widely recognized in case law. See INS v. Abudu, 485 U.S. 94, 104 (1988) (‘‘There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought.’’). The proposed rule would not alter the authority of the Board and immigration judges to deny a motion to reopen as a matter of discretioneven when the alien has established a prima facie case for the underlying substantive relief. See 8 CFR 1003.2(a) (‘‘The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.’’); 1003.23(b)(3) (‘‘The Immigration Judge has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief.’’); see also INS v. Doherty, 502 U.S. 314, 333 (1992) (Scalia, J., concurring in part and dissenting in part), (‘‘[T]he Attorney General’s power to grant or deny, as a discretionary matter, various forms of non-mandatory relief includes within it what might be called a ‘merits-deciding’ discretion to deny motions to reopen, even in cases where the alien is statutorily eligible and has complied with the relevant procedural requirements.’’); Abudu, 485 U.S. at 104–05 (‘‘[I]n cases in which the ultimate grant of relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation), the BIA may leap ahead, as it were, over the two threshold concerns . . . and simply determine that even if they were met, applications over which it has no authority remains unsettled. The proposed rule would codify the intent of Yauri and the procedures and standards to be used for considering requests for a stay of removal. Additionally, the Department notes that it has proposed eliminating sua sponte reopening authority by the Board in most instances, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020), undermining Singh. VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 the movant would not be entitled to the discretionary grant of relief.’’); MendiasMendoza v. Sessions, 877 F.3d 223, 227 (5th Cir. 2017) (quoting and applying Abudu); Poniman v. Gonzales, 481 F.3d 1008, 1011 (8th Cir. 2007) (same). The provisions would therefore help deter and efficiently resolve frivolous motions to reopen or reconsider, promoting the ‘‘strong public interest’’ in the completion of removal proceedings ‘‘as promptly as is consistent with giving the adversaries a fair opportunity to develop and present their respective cases.’’ Abudu, 485 U.S. at 107; cf. INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5 (1981) (per curiam) (‘‘If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations.’’) (quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J. dissenting)). Consistent with current practice in immigration courts and the BIA,13 the proposed regulation would also clarify that immigration judges and the BIA may not automatically grant a motion to reopen or reconsider that is jointly filed, that is unopposed, or that is deemed unopposed because a response was not timely filed.14 As explained, the BIA is vested with broad discretion to grant or deny these motions; no authority requires the BIA to grant such a motion when it is jointly filed or unopposed, or when no timely response is made. See Doherty, 502 U.S. at 322–23; see also Abudu, 485 U.S. at 105–06; Jong Ha Wang, 450 U.S. at 143 n.5. The proposed rule would further specify that neither an immigration judge nor the BIA may grant a motion to reopen or reconsider for the purpose of 13 See U.S. Dep’t of Justice, Executive Office for Immigration Review, Board of Immigration Appeals Practice Manual, ch. 5.11 (Oct. 19, 2018 update) (‘‘BIA Practice Manual’’), https://www.justice.gov/ eoir/page/file/1103051/download; U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration Court Practice Manual, chs. 3.1(b) & (d)(ii), 5.12 (Aug. 2, 2018 update) (‘‘Immigration Court Practice Manual’’), https://www.justice.gov/ eoir/page/file/1084851/download. 14 As explained, the BIA is vested with broad discretion to grant or deny these motions; no authority requires the BIA to grant such a motion when it is jointly filed or unopposed, or when no timely response is made. See Doherty, 502 U.S. at 322–23; see also Abudu, 485 U.S. at 105–06 (quoting Jong Ha Wang, 450 U.S. at 143 n.5). PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 75949 terminating or dismissing the proceeding, unless the motion satisfies the standards for both the motion, including the prima facie requirement discussed above if applicable,15 and the requested termination or dismissal. See 8 CFR 1239.2(c), (f); see also Matter of S–O–G– & F–D–B–, 27 I&N Dec. 462 (A.G. 2019) (holding that the authority to dismiss or terminate proceedings is constrained by the regulations and is not a ‘‘free-floating power’’). To facilitate this inquiry, the proposed regulation provides a definition of ‘‘termination’’ and explains that termination includes both the termination and the dismissal of proceedings, wherever those terms are used in the regulations. Cf. id. at 467 (‘‘Although ‘dismissal’ and ‘termination’ have distinct meanings and different requirements under the regulations, they are similar concepts in the context of concluding removal proceedings . . . .’’). The proposed rule would also offer clarity regarding how the Board or an immigration judge should evaluate allegations and arguments made in a motion to reopen or motion to reconsider and the evidence supporting such a motion. The Board—and, by extension, immigration judges—have ‘‘broad discretion’’ to weigh the credibility of evidence offered in support of a motion to reopen. Dieng v. Barr, 947 F.3d 956, 961 (6th Cir. 2020). Although the Supreme Court has explained that a summary judgment standard is not appropriate for evaluating a motion to reopen, and that evidence in favor of the movant need not be accepted as true, the regulations provide little guidance as to when allegations should be accepted or disregarded. Abudu, 485 U.S. at 109 (‘‘We have never suggested that all ambiguities in the factual averments [in a motion to reopen] must be resolved in the movant’s favor, and we have never analogized such a motion to a motion for summary judgment. The appropriate analogy is a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which courts have uniformly held that the moving party bears a heavy burden.’’); Dieng, 947 F.3d at 963 (‘‘Comparing the BIA’s adjudicatory role to that of a trial judge reviewing a motion for summary judgment is inappropriate where ‘every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’ ’’ (quoting 15 For example, the prima facie requirement discussed above would not apply to motions to reopen filed for purposes of dismissal pursuant to 8 CFR 239.2(c) and 1239.2(c). E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75950 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules Doherty, 502 U.S. at 323)); see also M.A. v. INS, 899 F.2d 304, 309–10 (4th Cir. 1990) (en banc) (Wilkinson, J.) (‘‘The term ‘prima facie case’ is not a buzzword that requires us to ignore the procedural posture of the case . . . . There is nothing incongruous about the Board interpreting its regulations to require that a prima facie showing in a reopening context be more demanding than the statutory standard in an original proceeding.’’). The proposed rule clarifies that factual assertions that are contradicted, unsupported, conclusory, ambiguous, or otherwise unreliable should not be accepted as true, consistent with current standards. See, e.g., Dieng, 947 F.3d at 963–64 (affidavits that are ‘‘self-serving and speculative,’’ statements concerning changed country conditions that are not ‘‘based on personal knowledge,’’ and letters from petitioners’ family members that are ‘‘speculative, and not corroborated with objective evidence,’’ may be discredited as ‘‘inherently unbelievable’’). Consistent with Abudu, it would further make clear that the Board is not required to take all assertions in a motion to reopen at face value. Contra Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (‘‘Our case law establishes, however, that the BIA was under an affirmative obligation to ‘accept as true the facts stated in Ghahremani’s affidavit [in support of his motion] in ruling upon his motion to reopen unless it finds those facts to be inherently unbelievable.’ ’’) (quoting Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985)). The proposed rule further clarifies that an adjudicator is not required to accept the legal arguments of either party as correct. It also codifies longstanding law that assertions made in a filing by counsel, such as a motion to reopen or motion to reconsider, are not evidence and should not be treated as such. See Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (holding that counsel’s ‘‘mixed factual and legal’’ assertions ‘‘are not evidence’’). This rulemaking would also make changes to provide clearer standards for adjudicating motions to reopen and reconsider. First, the rule would relocate language concerning criminal aliens and the requirements for such aliens to include information about pending criminal prosecutions from 8 CFR 1003.2 and 1003.23 to the new regulation at 8 CFR 1003.48. Relocating this language would consolidate pertinent information into one section. In addition, the proposed rule would add a new requirement regarding disclosures of any convictions that occurred between the order of removal VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 and the filing of the motion to reopen, to ensure that immigration judges or the Board have all relevant information about the alien’s circumstances. Further, the proposed rule would require the disclosure of any reinstated order of removal pursuant to section 241(a)(5) of the Act, 8 U.S.C. 1231(a)(5). Without such a requirement, the adjudicator may inappropriately consider a motion to reopen that is otherwise prohibited by statute. All of these requirements will assist adjudicators in making proper decisions based on a current record. The proposed rule would also prohibit the Board or an immigration judge from granting a motion to reopen or reconsider filed by an alien unless the alien has provided appropriate contact information for further notification or hearing. This proposal is similar to the requirements for a change of venue, 8 CFR 1003.20(c), and ensures that proceedings are not reopened only to be delayed because the Board or an immigration court lacks a current address for the alien. See Degen, 517 U.S. at 824 (explaining a court’s authority to dismiss an appeal or writ of certiorari when the party seeking relief is a fugitive while the matter is pending because if ‘‘the party cannot be found, the judgment on review may be impossible to enforce’’); cf. Sapoundjiev, 376 F.3d at 729 (‘‘When an alien fails to report for custody, this sets up the situation that Antonio-Martinez called ‘heads I win, tails you’ll never find me[.]’ ’’) (quoting Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003)). The proposed rule would add a new paragraph in 8 CFR 1003.2(c)(3) to align that regulation with both the statutory language in INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), and the provision applicable to immigration judges in 8 CFR 1003.23(b)(4)(i) relating to motions to reopen based on changed country conditions. Following INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), 8 CFR 1003.23(b)(4)(i) includes an exception to the general time and number limitations applicable to motions to reopen if the motion seeks to file a new application for asylum, statutory withholding of removal, or protection under the Convention Against Torture based on changed county conditions and supported by evidence that is material and was not available and could not have been discovered or presented at the previous proceeding. It also includes additional language related to stays of removal and the implications of finding a prior asylum application to have been frivolous. See 8 CFR 1003.23(b)(4)(i). No similar regulation for removal PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 proceedings exists for the Board, however.16 The Department believes that immigration judges and the Board should adjudicate motions to reopen removal proceedings related to changed country conditions under the same standards. Nothing in the INA suggests that the standards should be different. Further, the Board is just as likely—if not more so—to consider stay requests in conjunction with motions to reopen in this context and to consider the implications of a prior finding of frivolousness for a motion to reopen as immigration judges are. See, e.g., Matter of H–Y–Z-, 28 I&N Dec. 156, 160 (BIA 2020) (‘‘Therefore, the subsequent filing of a motion to reopen [with the Board], even one that challenges a frivolousness finding, has no effect on the statutory bar to immigration benefits. . . . This is consistent with the regulation regarding motions to reopen before the Immigration Judge. . . .’’). Consequently, to harmonize the standards applied by both immigration judges and the Board to motions to reopen in this context, the Department proposes to insert the language of 8 CFR 1003.23(b)(4)(i), which tracks the statutory provisions of INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), into regulations applicable to the Board by adding a new paragraph 8 CFR 1003.2(c)(3)(v). In addition, the proposed rule would clarify that an alien who files a motion to reopen and applies for asylum or related relief based on changed country conditions need not submit a copy of the record of proceedings or administrative file with the motion. Finally, the proposed rule would delete outdated alternate deadlines in 8 CFR 1003.23(b), 1003.2(b)(2), and 1003.2(c)(2) for filing motions to reopen or reconsider. 16 Two provisions applicable to the Board crossreference 8 CFR 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii), but no regulation cross-references 8 CFR 1003.23(b)(4)(i). See 8 CFR 1003.2(c)(3) and (3)(i). Further, although 8 CFR 1003.2(c)(3)(ii) contains language broadly analogous to 8 CFR 1003.23(b)(4)(i), it appears to apply to deportation proceedings rather than removal proceedings and, accordingly, uses language different from that of the statute applicable to removal proceedings. Compare 8 CFR 1003.2(c)(3)(ii) (referencing ‘‘withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered’’) (emphasis added), with INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii) (referencing ‘‘changed country conditions arising in the country of nationality or the country to which removal has been ordered’’) (emphasis added). E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS E. Specific Standards for Motions To Reopen Due to Ineffective Assistance of Counsel 1. Overview of the Proposed Rule As noted in section II.B, although courts have broadly endorsed the framework of Lozada in considering motions to reopen based on claims of ineffective assistance of counsel, several courts have declined to give full effect to the Lozada requirements where, in the court’s view, compliance is not necessary. 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.’’). In addition, courts have adopted varying standards for establishing prejudice. The proposed rule would therefore establish uniform procedural and substantive requirements for the filing of motions to reopen based upon a claim of ineffective assistance of counsel which will, in turn, provide a uniform standard for adjudicating such motions. The 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) (internal quotation marks omitted). The filing requirements described in the proposed rule would also guide an alien alleging ineffective assistance of counsel in providing evidence necessary to adjudicate the claim. As the Board noted in 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.’’ Lozada, 19 I&N Dec. at 639. In short, the proposed rule will protect aliens from incompetent or unscrupulous attorneys, protect attorneys from improper or unfounded allegations of professional misconduct, and product the integrity of EOIR’s immigration proceedings as a whole. The proposed rule would provide standards for filing and adjudicating motions to reopen or reconsider based upon a claim of ineffective assistance of counsel, generally following the BIA’s VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 instruction and current requirements under Lozada, 19 I&N Dec. at 639; section 240(c)(7) of the Act, 8 U.S.C.1229a(c)(7); and the applicable regulations at 8 CFR 1003.2 and 1003.23. The standard for adjudication would require such motion to demonstrate that the counsel’s conduct was ineffective and prejudiced the individual. The proposed rule would allow for possible relief due to ineffective assistance of counsel, which the rule would define as attorneys or accredited representatives under 8 CFR 1292.1(a)(1) and (a)(4), or any other person who represented the alien in proceedings before the immigration court or the BIA and who the alien reasonably but erroneously believed was authorized to do so. In evaluating counsel’s conduct, the proposed regulation would require that the conduct be unreasonable based on the facts of the case, viewed at the time of the conduct at issue. The proposed rule would also require the alien to demonstrate prejudice based on that conduct. The proposed rule would not enumerate specific conduct that amounts to ineffective assistance in immigration proceedings; rather, the proposed rule would adopt a standard similar to the one rooted in Strickland v. Washington, 466 U.S. 668 (1984).17 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. Under the proposed rule, a tactical decision could not amount to ineffective assistance if the decision was reasonable when it was made, even if it proved unwise in hindsight. See id. at 689 (‘‘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) (‘‘An attorney’s objectively reasonable tactical decisions do not qualify as ineffective assistance.’’); cf. Matter of 17 Although immigration proceedings are civil in nature and Strickland applies to criminal proceedings, the use of standards imported from Strickland should provide greater protection to aliens since criminal defendants possess greater rights and protections than aliens in removal proceedings. The Department notes, however, that its use of Strickland in this context is simply a policy determination for purposes of administering the proposed regulation and should not be construed as an assertion that aliens should have the same rights afforded to criminal defendants, including the right to counsel at government expense. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 75951 Velasquez, 19 I&N Dec. 377, 383 (BIA 1986) (stating that attorney’s ‘‘decision to concede deportability was a reasonable tactical decision’’ and thus was binding). Finally, under the proposed rule, the Department expects 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 proposed rule would require the individual to establish that he or she was prejudiced by counsel’s conduct, and an immigration judge or the BIA shall consider whether a reasonable probability exists that, absent counsel’s ineffective assistance, the outcome of the proceedings would have been different.18 This reasonable probability standard well established; adopting it would provide clarity and make more uniform the way courts evaluate prejudice. See id. at 694 (‘‘The [movant] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’’). The proposed rule would provide that eligibility for relief or protection arising after the conclusion of proceedings will typically not affect the determination whether the individual was prejudiced during such proceedings. Cf. Snethen v. State, 308 NW2d 11, 16 (Iowa 1981) (‘‘Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide effective assistance of counsel.’’). The proposed rule would require three items to support a motion to reopen based on ineffective assistance of counsel. First, it would require an affidavit or written statement executed under penalty of perjury that details the 18 As with the determination of ineffective assistance of counsel, this proposed rule would not enumerate any circumstances that necessarily constitute prejudice. See generally Assaad, 23 I&N Dec. at 562 (rejecting the argument that counsel’s failure to file an appeal is per se prejudicial). But see 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). Rather, each case would rest on its particulars, with the recognition that some conduct will more typically yield prejudice, but that the individual filing the motion always carries the burden to establish that prejudice does in fact exist. Additionally, the rescission of an in absentia order of removal generally requires either a showing of exceptional circumstances or a lack of notice. INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C). Although prejudice would not be presumed for a motion to rescind an in absentia removal order based on ineffective assistance of counsel, the Department expects that in the ordinary case an alien who demonstrates ineffective assistance of counsel leading to the issuance of an in absentia order of removal would also likely demonstrate prejudice. E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75952 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules agreement between counsel and the individual. The affidavit or written statement must include the actions to be taken by counsel and the representations counsel did or did not make regarding such actions. Moreover, to ensure that the alien fully understands what he is alleging, the affidavit or written statement must also identify who drafted it, if the alien did not, and contain an acknowledgment by the alien that the affidavit or written statement had been read to the alien in a language the alien speaks and understands, and that the alien, by signing, affirms that he understands and agrees with the language of the affidavit or written statement. A copy of any representation agreement must be included with the affidavit or written statement, or the individual should explain its absence and provide any reasonably available evidence regarding the scope of the agreement and reasons for its absence. The proposed rule would allow the BIA or an immigration judge to excuse the requirement to submit an affidavit or written statement, and accompanying evidence regarding the representation agreement, as a matter of discretion in the case of a motion filed by a pro se alien. Second, the proposed rule would require evidence of the individual’s notice to counsel informing him the allegations and that a motion to reopen based on such allegations will be filed. The individual must provide evidence of the date and manner in which he or she provided such notice, as well as counsel’s response, if any. If there were no response, the individual must say so. The proposed rule would provide two exceptions to this requirement: When prior counsel is deceased, or when the alien exercised reasonable diligence in the attempt to locate prior counsel but was unable to do so. Third, the proposed rule would require that the alien file a complaint with the appropriate disciplinary authorities and with EOIR disciplinary counsel. For attorneys in the United States, the alien must file a complaint with the disciplinary authority of a State, possession, territory, or Commonwealth, or of the District of Columbia, that licensed the attorney to practice law.19 For accredited representatives as defined in 8 CFR part 1292, the individual must file a complaint with the EOIR disciplinary counsel pursuant to 8 CFR 1003.104. For persons whom the individual 19 If an attorney is licensed in more than one jurisdiction, a complaint need only be filed with the disciplinary authority of one jurisdiction. VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 reasonably but erroneously believed to be an attorney or accredited representative as defined in 8 CFR part 1292, and who was retained for the purpose of representation in immigration proceedings, the individual must file a complaint with an appropriate federal, State, or local law enforcement agency that has authority to address matters involving unauthorized practice of law or immigration-related fraud. In all cases, the individual must file a complaint with EOIR disciplinary counsel. The individual must include with the motion to reopen a copy of the complaint(s) and any subsequent related correspondence, unless the counsel is deceased.20 In short, the proposed rule codifies the requirements of Lozada and reaffirms particular aspects of those requirements that have been disregarded to varying degrees by federal circuit courts. It provides a uniform standard for assessing prejudice and clear guidance that will both aid and protect respondents, practitioners, and adjudicators.21 2. The Current Proposed Rule’s Enhancements to the Previous Proposed Rule As previously stated, the Department withdraws its previous proposed rule regarding motions to reopen based upon ineffective assistance of counsel at 81 20 Although Lozada indicated that an alien could file a statement as to why no complaint was filed, the Department sees no reason why an alien alleging ineffective assistance of counsel would not file a complaint, unless counsel was deceased. Indeed, because the alleged ineffective assistance necessarily occurred during an EOIR proceeding, the Department can think of no logical reason why a complaint would not be filed with, at the least, the EOIR disciplinary counsel. 21 The proposed rule would not apply to motions to reopen proceedings 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 DHS or another government agency. Cf. 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). One reason for this limitation is that the Board and immigration judges are 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. At the same time, nothing in the proposed rule prohibits a respondent from filing a motion requesting that the Board reissue a decision in a case in which the respondent’s counsel missed a deadline for filing a petition for review. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 FR at 49556 in order to address broader issues regarding motions to reopen in a more comprehensive manner and to consolidate multiple other proposed rulemakings related to such motions. The new proposed rule nevertheless retains, either in whole or in part, many of the provisions from the previous proposed rule, including the standard for adjudication in 8 CFR 1003.48(h)(1) (proposed), the standard for evaluating counsel’s ineffectiveness in 8 CFR 1003.48(h)(3) (proposed), the reasonable probability standard for prejudice in 8 CFR 1003.48(h)(4) (proposed), and the required items to support the motion in 8 CFR 1003.48(h)(5) (proposed). The current proposed rule also enhances the previous proposed rule in several ways. First, it clarifies the regulation’s applicability to proceedings before the BIA and the immigration courts by renaming subpart C. The previous proposed rule retained subpart C’s name, ‘‘Immigration Court—Rules of Procedure,’’ although the rule would have applied to proceedings at the BIA and the immigration courts. Second, the current proposed rule expands the previous proposed rule’s definition of ‘‘counsel.’’ The previous proposed rule did not expressly include the conduct of attorneys retained without remuneration, but the proposed rule does. See 8 CFR 1003.48(h)(1)–(4) (proposed). Thus, it expands the rule’s afforded protections to a broader set of individuals, though it would not extend beyond EOIR proceedings. Third, regarding the requirement to submit the representation agreement and an affidavit or written statement detailing the agreement between counsel and the individual, the proposed rule provides that the BIA or immigration judge may, in their discretion, grant an exception if the person is not represented by counsel, explains the absence of documentation, and presents other independent evidence to support the motion. The BIA or immigration judge may not grant exceptions for the affidavit or written statement if the person has retained counsel, but, in the absence of a representation agreement, the person may explain its absence and provide reasonably available supporting evidence. Regarding the notice to counsel, the proposed rule provides specific exceptions if counsel is deceased or if the person tried to locate previous counsel with reasonable diligence but was unsuccessful. Fourth, the earlier proposed rule would have required the individual filing the motion to reopen to notify appropriate disciplinary authorities, as listed in the regulation. This proposed E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS rule maintains that notification requirement in its entirety, but it adds a second notification requirement—to notify EOIR disciplinary counsel in every case in accordance with the current regulation at 8 CFR 1003.104. This ensures that all claims of ineffective assistance are reviewed for potential disciplinary action. The EOIR Disciplinary Program helps the Department ensure fairness and integrity in immigration proceedings. Through the program, EOIR regulates the professional conduct of immigration attorneys and representatives to protect the public, preserve the integrity of immigration proceedings and adjudications, and maintain high professional standards for practitioners. Consequently, it is crucial that the EOIR Disciplinary Counsel be aware of claims of ineffective assistance by practitioners so that it may take appropriate action. By clarifying and expanding the application of these regulations, clarifying exceptions that promote consistency, uniformity, and finality in immigration proceedings, and ensuring that claims of ineffective assistance are reviewed for potential disciplinary action, this proposed rule builds upon the earlier proposed rule. Accordingly, and for the reasons discussed above, the Department withdraws its previous proposed rule at 81 FR at 49556 and proposes this rule to standardize motions to reopen immigration proceedings based upon a claim of ineffective assistance of counsel. F. Motions To Reopen To Submit or Update an Application for Asylum or Protection Under current regulations, an alien who files a motion to reopen in order to submit an application for relief must submit the appropriate application and the application’s supporting documentation together with the motion. 8 CFR 1003.2(c)(1) (‘‘A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.’’); 8 CFR 1003.23(b)(3) (same). See also, e.g., Gen Lin v. Att’y Gen., 700 F.3d 683, 689 (3d Cir. 2012) (concluding that the failure to include a new asylum application with the motion to reopen was a sufficient basis to deny a petition for review); RomeroRuiz v. Mukasey, 538 F.3d 1057, 1064 (9th Cir. 2008) (concluding that the BIA ‘‘did not abuse its discretion in determining that Romero–Ruiz did not satisfy the procedural requirements’’ for filing a motion to reopen because, among other things, he failed to file an accompanying application for VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 cancellation of removal); Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir. 2007) (holding that the BIA did not abuse its discretion in denying a motion to reopen based on changed country conditions when the alien failed to include her application for asylum and supporting documentation). The proposed rule would further clarify that, if the immigration court or the Board grants the motion, the immigration court or the Board would further accept the application submitted with the motion to reopen. For example, an alien who submits a motion to reopen based on changed country conditions is required to submit the accompanying asylum application. 8 CFR 1003.2(c)(1), 1003.23(b)(3). Under the proposed rule, that new asylum application would be considered filed as of the date the immigration court grants the motion to reopen, and the alien would not be able to later avoid filing the application. This change would foreclose the use of changed country conditions, which relate to a claim for asylum or withholding of removal, for the purpose of gaining reopening to pursue other claims that could not themselves have been a basis for reopening due to timeor number-bars ordinarily applicable to motions to reopen. In such circumstances, the penalty for filing a false or frivolous asylum application would continue to apply. See INA 208(d)(6), 8 U.S.C. 1158(d)(6); 8 CFR 1208.20. So too would civil monetary penalties for document fraud. See INA 274C(a), 8 U.S.C. 1324c(a). G. Limiting the Scope of Reopened Proceedings to the Issues Upon Which Reopening Was Granted Under current practice, a grant to reopen a case effectively reopens the case for any purpose, regardless of the motion’s articulated basis. For example, a respondent may file a motion to reopen based on changed country conditions that may affect the respondent’s eligibility for asylum. Under section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. 1229a(c)(7)(C)(ii), changed country conditions excuse untimely filing of a motion to reopen, while changed personal circumstances do not. A respondent seeking relief based on changed personal circumstances may therefore move to reopen based on changed country conditions, and then, if the motion is granted, withdraw or fail to submit the asylum application based on changed country conditions, and, instead, pursue an alternative form of relief, such as adjustment of status, based on changed personal circumstances. Essentially, respondents PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 75953 commonly allege specific grounds that warrant reopening a case but then use the reopened proceedings as an opportunity to apply for other unrelated forms of relief from removal that are otherwise unavailable. This practice undermines the Department’s commitment to efficient and fair case processing because respondents who engage in such practices receive additional opportunities to raise unrelated issues or apply for relief, thereby circumventing current law and regulations providing time-based deadlines and prolonging their cases. Use of an asylum claim to reopen a case for other claims treats unfairly those aliens who have the same non-asylum claims barred by the time and number limitations but who lack an asylum claim with which to shoehorn their otherwise barred claims into reopened proceedings. To curb this practice, the Department proposes to revise the scope of reopened proceedings at 8 CFR 1003.48(d)(3). The proposed rule would limit the reopened proceeding to consider only those issues or issues upon which reopening or reconsideration was granted, as well as matters directly related, except as otherwise provided by statute, regulation, or judicial or administrative precedent. Accordingly, the respondent would be required to establish in the motion to reopen or reconsider each basis upon which the respondent intends to apply for relief. H. Standards for Evaluating Requests for Discretionary Stays The current regulations regarding motions to reopen and motions to reconsider provide only that an immigration judge, the BIA, or an authorized DHS officer may grant a stay of removal. See 8 CFR 1003.2(f), 1003.23(b)(1)(v). The current regulations lack detailed guidance pertaining to the filing and adjudication of such requests, and neither the BIA nor the Attorney General has published a decision addressing the appropriate standards for stays of removal. The proposed regulation would provide a list of factors that the immigration judge or BIA must consider when determining whether to grant an alien’s requested stay of removal as a matter of discretion: The likelihood of success on the merits; the likelihood of irreparable injury; harm that the stay may cause to other parties interested in the proceeding; and the public interest. These factors are well established in existing law and have been set out in decisions regarding the consideration of discretionary stays. See, e.g., Nken v. E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75954 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules Holder, 556 U.S. 418, 425–26 (2009); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir. 1999); Ignacio v. INS, 955 F.2d 295, 299 (5th Cir. 1992). The inclusion of these provisions in the regulations will promote consistency in the adjudication of discretionary stay requests. The proposed regulation would provide specific instructions regarding the requirements for submitting a motion for a discretionary stay in conjunction with a motion to reopen or reconsider. These provisions in the proposed regulation act as additional tools for case management, the importance of which the Attorney General emphasized in Matter of L–A– B–R–, 27 I&N Dec. 405, 406 (A.G. 2018) (‘‘Efficiency is . . . a common theme in the immigration courts’ procedural regulations, which promote the ‘timely’ and ‘expeditious’ resolution of removal proceedings.’’). One such provision would codify in the regulations the current EOIR practice that an immigration judge and the BIA may not grant a motion for a stay of removal if the alien has not also filed an underlying motion to reopen or reconsider. See Immigration Court Practice Manual, ch. 8.3; BIA Practice Manual, ch. 6.3. Another provision would prohibit an immigration judge or the BIA from granting a request for a discretionary stay unless the motion is accompanied by proof that the individual initially filed for a stay of removal with DHS, the agency ultimately responsible for carrying out an order of removal, deportation, or exclusion, pursuant to 8 CFR 241.6; DHS must have subsequently denied or failed to respond to the request within five business days. Requiring an individual to first file a stay request with DHS, and then subsequently be denied or receive no response in order to file with EOIR, is a commonsense procedural mechanism that ensures an alien multiple opportunities to have a stay request considered. It also promotes efficiency, as DHS, the agency seeking to remove the alien, is in the best position to evaluate a stay request in the first instance. DHS maintains the requisite personnel, expertise, and necessary information to handle such requests expeditiously because DHS is both the custodian of a removable alien and ultimately the executor of an order of removal. Further, a requirement that stays should be directed to DHS initially will encourage the filing of stay requests at the earliest possible opportunity and reduce the likelihood of dilatory gamesmanship in filing for a stay at the last moment. Consequently, stay requests are most appropriately directed VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 to DHS in the first instance. If that request is not approved, however, an individual may still obtain a de novo determination from EOIR on a stay request, provided that the individual complies with other regulatory requirements. The proposed regulation would prohibit an immigration judge or the BIA from granting a request unless the opposing party is notified and has an opportunity to respond and either affirmatively consents, joins the motion, or fails to respond to the request in three business days from the date of filing the request. Both parties in immigration proceedings are entitled to fair process, and notice to the opposing party is a tenet of fair process. Accordingly, to ensure fair consideration of all requests and consistency with how it addresses other motions, the Department proposes to require notice and an opportunity to respond before it will grant any motion for a discretionary stay. For genuinely exigent situations, nothing in this proposed rule prevents a party for moving for expedited treatment of its stay request or for the parties to file a joint request for a stay. Ultimately, the proposed rule would emphasize that a discretionary stay is an extraordinary remedy. See Nken, 556 U.S. at 437 (Kennedy, J., concurring) (‘‘A stay of removal is an extraordinary remedy that should not be granted in the ordinary case, much less awarded as of right.’’). The Department believes that the implementation of discretionary stay procedures will ensure that stays are not abused or used to circumvent the statutory and regulatory structure for proceedings before EOIR. Further, these changes would ensure that EOIR’s regulations are generally aligned with existing precedents. IV. 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 would not regulate ‘‘small entities’’ as that term is defined in 5 U.S.C. 601(6). Only individuals, and not entities, are eligible to file motions to reopen or to reconsider or to seek a stay of removal. 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 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 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. Congressional Review Act This proposed rule is not a major rule as defined by section 804 of the Congressional Review Act, 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 foreignbased companies in domestic and export markets. D. Executive Order 12866 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). The Office of Information and Regulatory Affairs of the Office of Management and Budget (‘‘OMB’’) has determined that this proposed rule is not a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866. It will neither result in an annual effect on the economy greater than $100 million nor adversely affect the economy or sectors of the economy. It does not pertain to entitlements, grants, user fees, or loan programs, nor does it raise novel legal or policy issues. It does not create inconsistencies or interfere with actions taken by other agencies. Accordingly, this rule is not a significant regulatory action subject to review by OMB pursuant to Executive Order 12866. Executive Order 13563 directs 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 certifies that this regulation has been drafted in accordance with the principles of Executive Order 13563. E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules The proposed rule would help ensure the fairness and integrity of immigration proceedings by setting out requirements for reopening proceedings, allowing for reopening where an individual was genuinely subjected to ineffective assistance of counsel and suffered prejudice as a result. It would also establish requirements for requests for stays of removal. 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 adjudicatory standards used in those proceedings.22 At most, the Department notes that the proposed rule may result in fewer motions to reopen being granted; however, because motions to reopen are disfavored already as a matter of law, because motions to reopen are inherently fact-specific, because there may be multiple bases for denying a motion to reopen, and because the Department does not track individual bases for denying motions to reopen, it cannot quantify precisely the potential decrease. E. Executive Order 13132 (Federalism) jbell on DSKJLSW7X2PROD with PROPOSALS 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. 22 The Department acknowledges that the proposed rule would require two additional statements for motions to reopen for potential fugitive aliens, one additional statement for a motion to reopen filed by an alien subject to a reinstated removal order, and the filing of a complaint with EOIR disciplinary counsel for motions to reopen based on claims of ineffective assistance of counsel. To the extent these additional statements or actions, which largely mirror existing requirements, could be said to constitute burdens on the parties, such ‘‘burdens’’ are de minimis. Moreover, they are easily outweighed by the benefits to the Government and the improved functioning of the overall immigration system obtained through better identification of fugitive aliens, better identification of aliens statutorily ineligible to have a motion to reopen granted due to a reinstated removal order, and better identification of attorneys who have engaged in appropriate practices or provided ineffective assistance warranting discipline. VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 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 1001 Administrative practice and procedure, Immigration. Title 8 of the Code of Federal Regulations PART 1001—DEFINITIONS 1. The authority citation for part 1001 continues to read as follows: ■ Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107–296, 116 Stat. 2135; Title VII of Pub. L. 110–229. 2. Section 1001.1 is amended by adding paragraphs (cc) and (dd) to read as follows: ■ Definitions. * * * * * (cc) The terms depart or departure, unless otherwise specified, refer to the physical departure of an alien from the United States to a foreign location. A departure shall not include the physical removal, deportation, or exclusion of an alien from the United States under the auspices or direction of DHS or a return of the alien to a contiguous foreign territory by DHS in accordance with section 235(b)(2)(C) of the Act, but shall include any other departure from the United States, including a departure outside of the direction of DHS by an alien subject to an order of removal, deportation, or exclusion and including a departure following the approval of an application for advance parole. (dd) Unless otherwise specified, the terms terminate and termination refer to either termination or dismissal of proceedings under 8 CFR 1239.2(f), or PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 termination or dismissal under any other provision of law. PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 3. The authority citation 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. 4. Section § 1003.2 is amended by: a. Revising paragraphs (b)(2) and (c)(2); ■ b. Adding paragraph (c)(3)(v); and ■ c. Revising paragraphs (d) and (e). The additions and revisions read as follows: ■ ■ 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration. Accordingly, for the reasons set forth in the preamble, and by the authority vested in the Director, Executive Office for Immigration Review, by the Attorney General Order Number 4910–2020, the Department proposes to amend 8 CFR parts 1001 and 1003 as follows: § 1001.1 75955 § 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. * * * * * (b) * * * (2) A motion to reconsider a decision must be filed with the Board within 30 days after the mailing of the Board decision. A party may file only one motion to reconsider any given decision and may not seek reconsideration of a decision denying a previous motion to reconsider. In removal proceedings pursuant to section 240 of the Act, an alien may file only one motion to reconsider a decision that the alien is removable from the United States. * * * * * (c) * * * (2) Except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or exclusion proceedings (whether before the Board or the immigration judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. Except as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the immigration judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. (3) * * * (v) If the basis of the motion is to apply for asylum under section 208 of the Act or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is E:\FR\FM\27NOP1.SGM 27NOP1 75956 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding. The filing of a motion to reopen under this section shall not automatically stay the removal of the alien. However, the alien may request a stay and, if granted by the Board, the alien shall not be removed pending disposition of the motion by the Board. If the original asylum application was denied based upon a finding that it was frivolous, then the alien is ineligible to file either a motion to reopen or reconsider, or for a stay of removal. (d) Departure. Any departure by an alien from the United States while a motion to reopen or motion to reconsider is pending shall constitute a withdrawal of the motion, and the motion shall be denied. (e) Judicial proceedings. Motions to reopen or reconsider shall state whether the validity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. * * * * * ■ 5. Section § 1003.23 is amended by revising the introductory text of paragraph (b)(1); and paragraph (b)(1)(I) to read as follows § 1003.23 Reopening or reconsideration before the immigration court. jbell on DSKJLSW7X2PROD with PROPOSALS * * * * * (b) * * * (1) In general. 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. Subject to the exceptions in this paragraph and paragraph (b)(4), a party may file only one motion to reconsider and one motion to reopen proceedings. A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, deportation, or exclusion. A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion. Any departure from the United States while a motion to reopen or reconsider is pending shall constitute a withdrawal of such motion, and the motion shall be denied. The time and numerical limitations set forth in this paragraph do not apply to motions by DHS in removal VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 proceedings pursuant to section 240 of the Act. Nor shall such limitations apply to motions by DHS in exclusion or deportation proceedings, when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with § 1208.22(e) of this chapter. (i) Form and contents of the motion. The motion shall be in writing and signed by the affected party or the attorney or representative of record, if any. The motion and any submission made in conjunction with it must be in English or accompanied by a certified English translation. Motions to reopen or reconsider shall state whether the validity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. * * * * * Subpart C—Rules of Procedure 6. Revise the heading of subpart C to read as set forth above: ■ 7. Add § 1003.48 to subpart C to read as follows: ■ § 1003.48 stays. Motions to reopen or reconsider; (a) In general. The provisions of this section apply to all motions to reopen or reconsider filed with either an immigration court or the Board on or after [the effective date of this section]. The failure of a motion to reopen or reconsider to comply with any provision of this section or any other applicable requirement may result in the denial of that motion. (b) Allegations of fact. (1) Section 1003.1(d)(3)(i) does not apply to the Board’s consideration of the factual allegations in any affidavit or written statement offered to support a motion to reopen or reconsider, except to the extent that the facts had previously been determined by an immigration judge. (i) Allegations of fact contained in a motion to reopen or motion to reconsider are not evidence and shall not be treated as evidence. Allegations of fact contained in a motion to reopen or motion to reconsider that is filed on behalf of the moving party by counsel or an accredited representative shall not be relied on as evidence by either the Board or an immigration judge. Such allegations made by counsel or an accredited representative shall not be accepted as true for purposes of adjudicating the motion. (ii) Alleged conclusions of law contained in a motion to reopen or PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 motion to reconsider are not evidence and shall not be treated as evidence nor relied on as evidence by either the Board or an immigration judge. Neither the Board nor an immigration judge shall accept alleged conclusions of law contained in a motion to reopen or motion reconsider as true, but shall conduct its own legal analysis in adjudicating the motion. (iii) There is no presumption that factual allegations offered in support of a motion to reopen or motion to reconsider are true. (2) Neither the Board nor an immigration judge shall accept factual allegations as true in support of a motion to reopen or motion to reconsider if: (i) Those allegations are contradicted by other evidence of record; (ii) Those allegations are contradicted by evidence described in § 1208.12(a); (iii) Those allegations are conclusory, uncorroborated, or unsupported by other evidence in the record or are otherwise based principally on hearsay; (iv) Those allegations are made solely by the respondent regarding individuals who are not presently within the United States; or (v) Those allegations are otherwise inherently unbelievable or unreliable. (c) Fugitive aliens. In any case in which an exclusion, deportation, or removal order is in effect, any motion to reopen or reconsider such order shall include a statement by or on behalf of the moving party declaring whether the subject of the order has been notified to surrender to DHS for exclusion, deportation, or removal and, if so ordered, whether the subject has complied with the notification to surrender. The alien’s failure to comply with a notification to surrender may result in the denial of the alien’s motion. (d) Criminal aliens and aliens subject to a reinstated removal order. Any motion to reopen or reconsider filed on behalf of an alien who has an exclusion, deportation, or removal order in effect shall include a statement by or on behalf of the alien declaring whether the alien is also the subject of any conviction after the date of the final order or any pending criminal proceeding under the Act, and, if so, the current status of that conviction or proceeding. Any motion to reopen or reconsider filed on behalf of an alien who has an exclusion, deportation, or removal order in effect shall include a statement by or on behalf of the alien declaring whether that removal order has been reinstated pursuant to section 241(a)(5) of the Act. (e) Underlying eligibility. (1) Neither an immigration judge nor the Board E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules shall grant a motion to reopen or reconsider based on an application for relief from removal over which the immigration judge or Board lacks authority unless that application for relief has been granted by another agency, the granted application provides complete relief from removal, the motion is not otherwise barred by applicable law, and the motion otherwise warrants being granted under applicable law. (i) For purposes of this paragraph (e)(1), a grant of an application for relief does not include interim relief, prima facie determinations, parole, deferred action, bona fide determinations or any similar dispositions short of final approval of the application for relief. (ii) Nothing in this section shall preclude an alien from applying for an administrative stay of removal from DHS pursuant to 8 CFR 241.6 while an application over which the immigration judge or the Board lacks authority is pending with DHS. (2) Neither an immigration judge nor the Board shall grant a motion to reopen or reconsider based on an application for relief or protection over which the immigration judge or Board does have authority, but for which the alien has not established prima facie eligibility for that relief or protection. For purposes of this section, for an application for relief that requires an immediately-available immigrant visa, an alien must establish, in addition to any other eligibility requirements, (i) that he has an approved, relevant immigrant visa and (ii) that the immigrant visa is in a category not subject to a numerical limitation or has a priority date earlier than the relevant ‘‘Date for Filing Applications’’ listed in the U.S. Department of State Visa Bulletin for the month in which the motion is filed. (3) Except as otherwise provided by statute or regulation, or a binding judicial or administrative precedent, further proceedings in a case that is reopened or reconsidered pursuant to a respondent’s motion described in paragraph (e)(1) or (e)(2) of this section shall be limited to the issues upon which reopening or reconsideration was sought and granted, and issues directly related. (4) Nothing in this paragraph (e) shall preclude an immigration judge or the Board from granting a motion to reopen or reconsider that is jointly filed if the motion otherwise warrants being granted. (f) Joint or unopposed motions. A motion to reopen or reconsider to which a response is not timely filed may be deemed unopposed, provided that VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 neither an unopposed motion nor a joint motion may be automatically granted without any further consideration. An immigration judge or the Board retains discretion to deny a joint motion or an unopposed motion if warranted. (g) Termination. A motion to reopen or reconsider and to terminate proceedings may be granted only if it satisfies the requirements both for reopening or reconsideration and for termination. (h) Motions. based on changed country conditions. When filing a motion to reopen to apply for asylum, withholding of removal under the Act, or protection under the Convention Against Torture, based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, the alien filing the motion does not need to file a copy of his or her record of proceedings or administrative file (Afile) with the motion. (i) Ineffective assistance of counsel.— (1) Standard for adjudication. The Board or an immigration judge shall adjudicate a motion to reopen based upon a claim of ineffective assistance of counsel in accordance with applicable law. The alien filing the motion must demonstrate that counsel’s conduct was ineffective and prejudiced the individual. Unless otherwise expressly provided in this paragraph, the Board or an immigration judge shall not waive or excuse any requirement for a motion to reopen based upon a claim of ineffective assistance of counsel. (2) Counsel. 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 with or without remuneration, to represent him or her in the proceedings before the BIA or an immigration judge and who did represent him or her in those proceedings. (3) Standard for evaluating counsel’s ineffectiveness. A counsel’s conduct constitutes ineffective assistance of counsel if the conduct was objectively unreasonable, based on the facts of the particular case, viewed at the time of the conduct. (4) Standard for evaluating prejudice. In evaluating whether an individual has established that he or she was prejudiced by counsel’s conduct, the BIA or the immigration judge shall determine whether there is a reasonable PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 75957 probability that, but for counsel’s ineffective assistance, the result of the proceeding would have been different. Eligibility for relief or protection 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. (5) Form, contents, and procedure for filing a motion to reopen based upon a claim of ineffective assistance of counsel. A motion to reopen based upon a claim of ineffective assistance of counsel shall include the following items to support the claim of ineffective assistance of counsel and that the alien suffered prejudice as a result: (i) Affidavit or written statement executed under penalty of perjury. (A) The alien filing the motion must, in every case, submit an affidavit by the alien or a written statement executed by the alien 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. The affidavit or written statement must also identify who drafted it, if the alien did not, and contain an acknowledgment by the alien that the affidavit or written statement had been read to the alien in a language the alien speaks and understands and that the alien, by signing, affirms that he or she understands and agrees with the language of the affidavit or written statement. (B) 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. (C) The Board or an immigration judge shall not waive the requirement to submit an affidavit or written statement executed under penalty of perjury under paragraph (i)(5)(i)(A) or the representation agreement or the explanation of the absence of the agreement and evidence of the scope of the agreement under paragraph (i)(5)(i)(B), except, in an exercise of discretion committed solely to the agency, the requirement may be excused in the case of an alien who filed the motion pro se and without any assistance from counsel and whose motion is accompanied by other independent evidence indicating the E:\FR\FM\27NOP1.SGM 27NOP1 jbell on DSKJLSW7X2PROD with PROPOSALS 75958 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules nature, scope, and alleged deficiency of counsel’s representation. (ii) Notice to counsel. The alien 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 excuse failure to provide the required notice only if the alien establishes that the prior counsel is deceased or that the alien has tried with reasonable diligence to locate the prior counsel but has been unable to do so. (iii) Complaint filed with the appropriate disciplinary authorities and with EOIR. (A) The alien 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. In all cases the alien must also file a complaint with EOIR disciplinary counsel in accordance with § 1003.104. 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 with the appropriate disciplinary authorities and with EOIR. The appropriate disciplinary authorities are as follows: (1) With respect to attorneys in the United States: The disciplinary 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. If an attorney is licensed in more than one jurisdiction, a complaint need only be filed with one jurisdiction. (2) With respect to accredited representatives: The EOIR disciplinary counsel pursuant to § 1003.104(a). (3) With respect to a person described in 8 CFR 1003.48(i)(2)(ii): The appropriate federal, State, or local law enforcement agency with authority over matters relating to the unauthorized VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 practice of law or immigration-related fraud. (B) The Board or an immigration judge shall not waive the requirement to file a complaint with the appropriate disciplinary authorities and with EOIR unless the counsel is deceased. (6) Prejudice. The alien filing the motion shall establish that he or she was prejudiced by counsel’s conduct. The standard for prejudice is set forth in paragraph (i)(4) of this section. The Board or an immigration judge shall not waive the requirement to establish prejudice. Allegations of fact establishing the background and nature of prejudice by counsel’s conduct shall be contained in the affidavit or written statement submitted under penalty of perjury. (j) Address. Neither an immigration judge nor the Board shall grant a motion to reopen or reconsider filed by an alien unless the alien has provided the information in § 1003.20(c) where the alien may be reached for further notification or hearing. (k) Discretionary stay of removal. (1) A discretionary stay of removal is an extraordinary remedy and is not a matter of right. Neither the Board nor an immigration judge shall grant a discretionary stay of removal except as provided in this section. (i) An alien may submit a motion for a discretionary stay of removal at any time after an alien becomes subject to a final order of removal, provided that such a motion may be filed only while a motion to reopen or reconsider is pending before an immigration judge or the Board or in conjunction with the filing of a motion to reopen or reconsider before an immigration judge or the Board. (ii) Neither the Board nor an immigration judge shall grant a motion for a discretionary stay of removal without the filing of an underlying motion to reopen or reconsider. (iii) Neither the Board nor an immigration judge shall grant a motion for a discretionary stay of removal unless the underlying motion to reopen or reconsider is prima facie grantable. (iv) Neither the Board nor an immigration judge shall grant a motion for a discretionary stay of removal unless the alien exercised reasonable diligence in seeking a stay and filing a motion to reopen or reconsider after the circumstances underlying the motion arose (v) Neither the Board nor an immigration judge shall grant a motion for a discretionary stay of removal unless the alien has first applied for a stay of removal with DHS under 8 CFR 241.6 and either (A) that application has PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 been denied or (B) the alien has not received a decision on the application within five business days after it was filed. (vi)(A) Neither the Board nor an immigration judge shall grant a motion for a discretionary stay of removal unless the opposing party: (1) Has been notified and joins or affirmatively consents to the motion or (2) Has been given three business days from the date of filing to respond to the motion. (B) Notwithstanding the provisions of § 1003.32, service of a motion for a discretionary stay of removal on an opposing party shall be simultaneous to the filing of the motion and shall be accomplished by the same method by which the motion is filed with an immigration court or the Board. A certificate of service shall accompany the filing of the motion certifying that service was effectuated on the opposing party in an identical manner to the filing of the motion. Neither the Board nor an immigration judge shall excuse this service requirement, and any motion for a discretionary stay of removal failing to conform to this service requirement shall be summarily denied. (2) An alien requesting a discretionary stay of removal before the immigration court or the Board must submit a motion in writing stating the complete case history and all relevant facts. The motion must include a copy of the stay application filed with DHS under 8 CFR 241.6 and the decision on that application, if any. The motion must also include a copy of the order of removal that the alien seeks to have stayed, if available, or a description of the ruling and reasoning, as articulated by the immigration judge or the BIA. If facts are in dispute, the alien must provide appropriate evidence. (3)(i) Subject to the other provisions of this section, the Board or an immigration judge, in the exercise of discretion, may grant a stay of removal if consideration of all of the following factors supports granting the stay: (A) Whether the alien stay applicant has made a strong showing that he or she is likely to succeed on the merits of the underlying motion to reopen or reconsiderincluding the applicability of any time or numbers bars; (B) Whether the alien stay applicant will be irreparably injured absent a stay; (C) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (D) Where the public interest lies. (ii) For purposes of paragraph (k)(3)(i) of this section, neither an immigration judge nor the Board shall presume that E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 85, No. 229 / Friday, November 27, 2020 / Proposed Rules the balance of factors weighs in favor of granting a discretionary stay. James R. McHenry III, Director, Executive Office for Immigration Review, Department of Justice. [FR Doc. 2020–25912 Filed 11–25–20; 8:45 am] BILLING CODE 4410–30–P NUCLEAR REGULATORY COMMISSION 10 CFR Part 30 [Docket No. PRM–30–66; NRC–2017–0159; NRC–2017–0031] Naturally-Occurring and AcceleratorProduced Radioactive Materials Nuclear Regulatory Commission. ACTION: Petition for rulemaking. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) will consider in its rulemaking process issues raised in a petition for rulemaking submitted by Matthew McKinley on behalf of the Organization of Agreement States (OAS, the petitioner. The petitioner requests that the NRC amend its decommissioning financial assurance regulations for sealed and unsealed byproduct material not listed in a table that sets out radionuclide possession values for calculating these financial assurance requirements. The NRC will also examine ways to make the table’s values and other NRC decommissioning funding requirements more riskinformed. SUMMARY: The docket for the petition for rulemaking, PRM–30–66, is closed on November 27, 2020. ADDRESSES: Please refer to Docket ID NRC–2017–0031 when contacting the NRC about the availability of information related to the future rulemaking. Please refer to Docket ID NRC–2017–0159 when contacting the NRC about the availability of information for this petition closure. You may obtain publicly-available information related to this action by any of the following methods: • Federal Rulemaking Website: Public comments and supporting materials related to this petition can be found at https://www.regulations.gov by searching on the petition Docket ID NRC–2017–0159. Address questions about NRC dockets to Dawn Forder; telephone: 301–415–3407; email: Dawn.Forder@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document. jbell on DSKJLSW7X2PROD with PROPOSALS DATES: VerDate Sep<11>2014 17:37 Nov 25, 2020 Jkt 253001 • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/ adams.html. To begin the search, select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, at 301–415–4737, or by email to PDR.Resource@nrc.gov. For the reader’s convenience, instructions about obtaining materials referenced in this document are provided in Section VI, ‘‘Availability of Documents.’’ • Attention: The PDR, where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at PDR.Resource@nrc.gov or call 1–800–397–4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Torre Taylor, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415– 7900, email: Torre.Taylor@nrc.gov. SUPPLEMENTARY INFORMATION: I. Summary of the Petition II. Background III. Discussion IV. Public Comments on the Petition V. Reasons for Consideration VI. Availability of Documents VII. Conclusion I. Summary of the Petition The NRC received a petition for rulemaking dated April 14, 2017, filed by Matthew McKinley on behalf of the Organization of Agreement States. On August 23, 2017, the NRC published a notification of docketing and request for comment on the petition (82 FR 39971). The petitioner requests that the NRC amend its existing regulations in appendix B, ‘‘Quantities of Licensed Material Requiring Labeling,’’ in part 30 of title 10 of the Code of Federal Regulations, ‘‘Rules of General Applicability to Domestic Licensing of Byproduct Material,’’ to add appropriate unlisted radionuclides and their corresponding values. Section 30.35, ‘‘Financial Assurance and Recordkeeping for Decommissioning,’’ uses multiples of the applicable quantities of material listed in appendix B to determine the need for decommissioning financial assurance for sealed and unsealed radioactive materials. Licensees using radionuclides not specifically listed in this appendix must use generic default values that the PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 75959 petitioner believes result in overly burdensome requirements. Without this rulemaking, the petitioner asserts, ‘‘regulators are forced to evaluate new products against these [default appendix B] criteria and apply overly burdensome financial assurance obligations or to evaluate case-by-case special exemptions . . . . Rather than issuing exemptions on a case by case basis, the more appropriate way to address the inconsistency in Appendix B[’s treatment of listed and unlisted radionuclides] is to amend it to add appropriate nuclides and their corresponding activities, as determined by a rulemaking working group.’’ The petitioner also notes that the NRC did not update appendix B when the Energy Policy Act of 2005 amended the Atomic Energy Act of 1954 to give the NRC regulatory authority over discrete sources of naturally-occurring and accelerator-produced radioactive material (NARM). A significant number of medical radionuclides are accelerator-produced. Although the NRC did update schedule B of part 30, which lists possession values of byproduct material exempt from the requirements for a license, to add some NARM, it did not do the same for appendix B, the petitioner points out, even though appendix B is ‘‘the driver’’ for decommissioning financial assurance. The petition is available in ADAMS under Accession No. ML17173A063. II. Background To determine the amount of decommissioning financial assurance required to possess a given radionuclide with a half-life greater than 120 days, a licensee must multiply the appendix B value for that radionuclide by the applicable number in §§ 30.35 or 70.25. Sections 30.35(a) and 70.25(a) require a license-specific decommissioning funding plan (DFP) to possess a quantity of radionuclides greater than provided in the corresponding tables set forth in §§ 30.35(d) and 70.25(d). These tables require specific amounts of funding for specified ranges in the quantity of the radionuclide possessed. Both tables’ funding amounts and quantity ranges are identical, but § 30.35 applies to byproduct material and § 70.25 applies to special nuclear material. Although the petition addressed only byproduct material licensed under part 30, appendix B has an identical use for special nuclear material licensed under part 70. Section 30.35 sets a series of thresholds for decommissioning funding for possession and use of byproduct material. If the license authorizes E:\FR\FM\27NOP1.SGM 27NOP1

Agencies

[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Proposed Rules]
[Pages 75942-75959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25912]



[[Page 75942]]

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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001 and 1003

[EOIR Docket No. 18-0503; Dir. Order No. 01-2021]
RIN 1125-AB01


Motions To Reopen and Reconsider; Effect of Departure; Stay of 
Removal

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (``Department'') proposes to amend 
Executive Office for Immigration Review (``EOIR'') regulations 
governing the filing and adjudication of motions to reopen and 
reconsider and to add regulations governing requests for discretionary 
stays of removal.

DATES: Written or electronic comments must be submitted on or before 
December 28, 2020. Written comments postmarked on or before that date 
will be considered timely. The electronic Federal Docket Management 
System will accept comments prior to midnight Eastern Time at the end 
of that day.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0503, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Lauren Alder Reid, Assistant Director, Office of 
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please 
reference EOIR Docket No. 18-0503 on your correspondence. This mailing 
address may be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Lauren Alder Reid, Assistant 
Director, Office of Policy, Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact 
Telephone Number (703) 305-0289.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2616, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call), or email [email protected].

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. EOIR also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
To provide the most assistance to EOIR, comments should reference a 
specific portion of the rule; explain the reason for any recommended 
change; and include data, information, or authority that support the 
recommended change.
    All comments submitted for this rulemaking should include the 
agency name and EOIR Docket No. 18-0503. Please note that all comments 
received are considered part of the public record and made available 
for public inspection at www.regulations.gov. Such information includes 
personally identifiable information (such as a person's name, address, 
or any other data that might personally identify that individual) that 
the commenter voluntarily submits.
    If you want to submit personally identifiable information as part 
of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first 
paragraph of your comment and precisely and prominently identify the 
information of which you seek redaction.
    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 and precisely and prominently identify the confidential 
business information of which you seek redaction. 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 
www.regulations.gov. Personally identifiable information and 
confidential business information provided 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 paragraph above for the agency counsel's contact information 
specific to this rule.
    The Department may withhold from public viewing information 
provided in comments that they determine may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
http://www.regulations.gov.

II. Background

    Under the Immigration and Nationality Act (``INA'' or ``Act''), 
parties to proceedings before EOIR may file a motion to reopen or 
reconsider certain decisions of immigration judges or the Board of 
Immigration Appeals (``BIA'' or ``Board''). See INA 240(c)(6)-(7), 8 
U.S.C. 1229a(c)(6)-(7); 8 CFR 1003.2, 1003.23. Each such motion must be 
filed with the immigration court with administrative control over the 
record of proceeding or with the BIA. See 8 CFR 1003.2, 1003.23. These 
motions are ``separate and distinct motions with different 
requirements.'' Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991) 
(quoting Chudshevid v. INS, 641 F.2d 780, 783 (9th Cir. 1981)).
    A motion to reconsider requests ``that the original decision be 
reexamined in light of additional legal arguments, a change of law, or 
an argument or aspect of the case that was overlooked.'' Cerna, 20 I&N 
Dec. at 399. A party may file only one motion to reconsider any given 
decision, and such motion must be filed within 30 days of a final 
administrative order of removal. INA 240(c)(6)(A)-(B), 8 U.S.C. 
1229a(c)(6)(A)-(B); see also 8 CFR 1003.2(b)(2), 1003.23(b)(1). The 
motion must specify the errors of law or fact in the prior decision, 
supported by relevant authority. INA 240(c)(6)(C), 8 U.S.C. 
1229a(c)(6)(C); see also 8 CFR 1003.2(b)(1), 1003.23(b)(2).
    A motion to reopen is a party's filing to request to reopen 
proceedings ``so that new evidence can be presented and so that a new 
decision can be entered, normally after a further evidentiary 
hearing.'' Cerna, 20 I&N Dec. at 403. Subject to certain exceptions, a 
party may file only one motion to reopen proceedings, and such motion 
must generally be filed within 90 days of the date of entry of a final 
administrative order of removal. INA 240(c)(7)(A), (C), 8 U.S.C. 
1229a(c)(7)(A), (C); see also 8 CFR 1003.2(c)(2), 1003.23(b)(1).\1\ The 
motion must state new facts that will be proven at a hearing if the 
motion is granted and include supporting

[[Page 75943]]

affidavits or other evidentiary material. INA 240(c)(7)(B), 8 U.S.C. 
1229a(c)(7)(B); see also 8 CFR 1003.2(c)(1), 1003.23(b)(3).
---------------------------------------------------------------------------

    \1\ There are exceptions to the general timing and numerical 
limitations for certain motions to reopen (1) to apply for asylum 
under section 208 of the Act, 8 U.S.C. 1158, or withholding of 
removal under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or 
under the Convention Against Torture based on changed country 
conditions; (2) to rescind in absentia orders entered in removal, 
deportation, or exclusion proceedings; (3) to apply for 
discretionary relief as a battered spouse, child, or parent; and (4) 
that are agreed to by all parties and jointly filed. See INA 
240(c)(7)(C)(ii)-(iv), 8 U.S.C. 1229a(c)(7)(C)(ii)-(iv); 8 CFR 
1003.2(c)(3), 1003.23(b)(4). Certain motions to reopen filed by the 
Department of Homeland Security in removal proceedings are also not 
subject to the timing and numerical limitations. See 8 CFR 
1003.2(c)(2), 1003.2(c)(3)(iv), 1003.23(b)(1).
---------------------------------------------------------------------------

    The Department last significantly amended the immigration court and 
BIA regulations regarding motions to reopen and reconsider over twenty 
years ago. In 1996, the Department issued a final rule to establish 
time and number limitations on such motions pursuant to section 545(d) 
of the Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978, 
5066. See 61 FR 18900 (Apr. 29, 1996). In 1997, the Department issued a 
second regulation to implement sections 240(c)(6) and (7) \2\ of the 
INA,\3\ which Congress enacted as part of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 
104-208, sec. 304(a), 110 Stat. 3009-546, 3009-593 (1996). See 62 FR 
10312, 10330-33 (Mar. 6, 1997); see also 62 FR 444, 449 (Jan. 3, 1997) 
(proposed rule).
---------------------------------------------------------------------------

    \2\ At the time, current sections 240(c)(6)- and (7) of the Act 
(8 U.S.C. 1229a(c)(6)-(7)) were numbered 240(c)(5)- and (6) (8 
U.S.C. 1229a(c)(5)-(6)). These provisions were renumbered following 
the REAL ID Act of 2005, which added a new section 240(c)(4) of to 
the Act (8 U.S.C. 1229a(c)(4)). See Real ID Act of 2005, Public Law 
109-13, div. B, 119 Stat. 231, 304-05.
    \3\ At the time, current sections 240(c)(6) and (7) of the Act 
were numbered 240(c)(5) and (6). These provisions were renumbered 
following the REAL ID Act of 2005, which added a new section 
240(c)(4) to the Act. See Real ID Act of 2005, Public Law 109-13, 
div. B, 119 Stat. 231, 304-05 (2005).
---------------------------------------------------------------------------

    Since these changes, the Department has issued multiple Notices of 
Proposed Rulemaking related to motions to reopen and reconsider, see 81 
FR 49556 (July 28, 2016); 67 FR 31157 (May 9, 2002); 63 FR 47205 (Sept. 
4, 1998), and the federal courts have elaborated on the relevant 
regulatory provisions, see, e.g., Dada v. Mukasey, 554 U.S. 1, 12-15 
(2008). Further, the Department has maintained multiple entries on its 
Unified Agenda that reference such motions, such as Immigration Courts 
and the Board of Immigration Appeals: Motions to Reopen and Reconsider; 
Effect of Departure or Removal (RIN: 1125-AA74), and Motions To Reopen 
Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of 
Ineffective Assistance of Counsel (RIN: 1125-AA68).

A. Failure To Surrender and Fugitive Disentitlement

    The Department previously proposed changes to the regulations that 
would have established procedures for aliens subject to a final order 
of removal to surrender to the Immigration and Naturalization Service 
(``INS'') and imposed consequences on aliens who failed to surrender as 
required. See 67 FR 31157 (May 9, 2002) (supplementary proposed rule); 
63 FR 47205 (Sept. 4, 1998) (proposed rule); see also Matter of 
Barocio, 19 I&N Dec. 255, 258 (BIA 1985) (``[A]n alien who has violated 
a lawful order of deportation by failing to report to the Service 
following notification that his deportation has been scheduled does not 
merit the favorable exercise of discretion required for reopening of 
deportation proceedings.''). Under the proposed rule, an alien who was 
not detained when an order of removal became final had an affirmative 
legal obligation to surrender thereafter for removal. 67 FR at 31158. 
The rule would have incented compliance by denying future discretionary 
relief to absconding aliens who had failed to comply with their removal 
obligations. Id.
    The proposed regulation provided that aliens would receive notice 
of the duty to surrender and consequences of failing to surrender in 
the Notice to Appear, as well as from the immigration judge or the BIA, 
upon release from government custody, and at the time of a grant of 
voluntary departure. Id. at 31163. An alien who failed to surrender as 
required would then have been ineligible for discretionary relief under 
sections 208(b), 8 U.S.C. 1158(b), 212(h), 8 U.S.C. 1182(h), 212(i), 8 
U.S.C. 1182(i), 240A, 8 U.S.C. 1229b, 240B, 8 U.S.C. 1229c, 245, 8 
U.S.C. 1255, 248, 8 U.S.C.1258, and 249, 8 U.S.C. 1259, of the Act for 
the period the alien remained in the United States and 10 years after 
the alien's subsequent departure. Id. at 31158, 31163. The regulation 
further provided that the immigration judge and the BIA would similarly 
not grant a motion to reopen in the case of an alien who had failed to 
surrender. Id. at 31158, 31161. The regulation crafted some exceptions 
to the prohibitions if the alien first demonstrated by clear and 
convincing evidence exceptional circumstances for his failure to 
surrender, as defined in section 240(e)(1) of the INA, 8 U.S.C. 
1229a(e)(1), and that he actually surrendered as soon as possible after 
the circumstances passed. Id. at 31158.
    Following the dissolution of the INS and the establishment of the 
Department of Homeland Security (``DHS''), neither DHS nor EOIR has 
finalized the supplementary proposed rule.

B. Ineffective Assistance of Counsel

    Removal proceedings are civil in nature; aliens in removal 
proceedings have no Sixth Amendment constitutional right to counsel 
appointed at government expense, nor do they possess a statutory right 
to such counsel.\4\ Compare U.S. Const. amend. VI, and Gideon v. 
Wainwright, 372 U.S. 335 (1964), with INS v. Lopez-Mendoza, 468 U.S. 
1032, 1038 (1984), and INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A). 
Nevertheless, for more than thirty years, the Department has allowed 
aliens to file a motion to reopen proceedings based on allegations of 
ineffective assistance of counsel. See Matter of Lozada, 19 I&N Dec. 
637 (BIA 1988); see also Matter of Assaad, 23 I&N Dec. 553, 556-57 (BIA 
2003). Allowing aliens to seek to reopen proceedings based upon 
ineffective assistance of counsel balances the public interest in 
ensuring fairness with the public interest in ensuring finality of 
decisions in removal proceedings. See, e.g., INS v. Abudu, 485 U.S. 94, 
107 (1988) (``There 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.'').
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    \4\ There is a circuit split regarding whether aliens in removal 
proceedings have a Fifth Amendment due process right to effective 
assistance of counsel if they choose to employ counsel. See 
Contreras v. Att'y Gen., 665 F.3d 578, 584 n.3 (3d Cir. 2012) 
(discussing Circuit split and citing cases); see also Flores-Moreno 
v. Barr, No. 19-60017, 2020 WL 4931651, at *3 n.2 (5th Cir. Aug. 24, 
2020) (assuming without deciding that aliens have such a right).
---------------------------------------------------------------------------

    Lozada set forth standards governing motions to reopen based on 
claims of ineffective assistance of counsel. See Lozada, 19 I&N Dec. at 
639; see also Assaad, 23 I&N Dec. at 556-57 (affirming Lozada's 
application in removal proceedings). Under Lozada, an alien must meet 
three procedural requirements for filing such a motion: (1) Provide an 
affidavit stating the agreement with counsel, including what 
representations were and were not made; (2) give notice to counsel and 
an opportunity for counsel to respond; and (3) file a disciplinary 
complaint with the appropriate authorities or provide an explanation if 
no complaint has been filed. Lozada, 19 I&N Dec. at 639. In January 
2009, Attorney General Mukasey replaced the Lozada framework. See 
Matter of Compean, Bangaly and J-E-C-, 24 I&N Dec. 710, 727, 732 (A.G. 
2009) (``Compean I''). In June 2009, Attorney General Holder vacated 
Compean I and reinstated the Lozada framework. See Matter of Compean, 
Bangaly and J-E-C-, 25 I&N Dec. 1 (A.G. 2009). Attorney General Holder 
also instructed the Department to initiate rulemaking procedures to 
evaluate the Lozada framework. See id. at 2.
    In 2016, the Department proposed to amend EOIR's regulations by 
adding filing and adjudication standards for

[[Page 75944]]

motions to reopen before an immigration judge and the BIA based upon a 
claim of ineffective assistance of counsel. 81 FR at 49556. At the time 
of the proposed rule, courts had variously understood and applied the 
Lozada framework. The proposed rule sought to establish standard 
procedural and substantive requirements for filing such motions.
    Primarily, the proposed rule would have allowed an individual to 
file a motion to reopen an immigration proceeding upon establishing 
that he ``was subject to ineffective assistance of counsel and that, 
with limited exceptions, he or she suffered prejudice as a result.'' 
Id. at 49557. The proposed rule would have provided standards for 
determining ``ineffectiveness'' and ``prejudice.'' See id. at 49561, 
49565-67. The proposed rule would have required the following documents 
be included with the motion: ``(1) An affidavit or written statement 
executed under 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.'' Id. at 49557.
    Regarding motions to reopen and rescind an in absentia order based 
upon a claim of ineffective assistance of counsel, the proposed rule 
would have codified BIA precedent in Matter of Grijalva, 21 I&N Dec. 
472 (BIA 1996). In Grijalva, the BIA provided that an in absentia order 
may be rescinded upon a motion to reopen in which an alien establishes 
exceptional circumstances or reasonable cause based upon a claim of 
ineffective assistance ofcounsel. Id. at 473-74; see 81 FR at 49568-69. 
The alien, however, would not have to establish prejudice. Grijalva, 21 
I&N Dec. at 473 n.2; see 81 FR at 49568-69.
    The proposed rule also provided for the equitable tolling of filing 
deadlines in certain circumstances based upon a claim of ineffective 
assistance of counsel. See 81 FR at 49569. Finally, the proposed rule 
authorized the BIA, in its discretion, to reopen proceedings based upon 
counsel's failure to file a timely petition for federal appellate 
review. See id. at 49566.
    EOIR received comments on the 2016 rulemaking but did not publish a 
final rule. Accordingly, the agency currently lacks standardized 
regulations for such claims, and judicial treatment continues to vary 
among circuits. For example, the Fifth, Sixth, Seventh, and Tenth 
Circuits require strict compliance with the Lozada factors. See 
Hernandez-Ortez v. Holder, 741 F.3d 644, 647 (5th Cir. 2014) (rejecting 
as ``without merit'' the argument ``that strict compliance with the 
Lozada requirements is not necessary''); 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.'') 
(citing Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003)); Marinov 
v. Holder, 687 F.3d 365, 369 (7th Cir. 2012) (reaffirming the Lozada 
requirements as ``a necessary condition to obtaining reopening on the 
basis of ineffective assistance of counsel'') (quoting Lin Xing Jiang 
v. Holder, 639 F.3d 751, 755 (7th Cir. 2011)); Infanzon v. Ashcroft, 
386 F.3d 1359, 1363 (10th Cir. 2004) (``[A] motion based on claim of 
ineffective assistance of counsel must be supported as outlined in 
Lozada.'') (citing Mickeviciute v. INS, 327 F.3d 1159, 1161 n.2 (10th 
Cir. 2003)). Similarly, the First Circuit has repeatedly held that 
``[t]he 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.'' Taveras-Duran v. Holder, 767 F.3d 120, 123 (1st 
Cir. 2014) (quoting Asaba v. Ashcroft, 379 F.3d 9, 11 (1st Cir. 2004)); 
see also Garcia v. Lynch, 821 F.3d 178, 181 n.4 (1st Cir. 2016) (noting 
``consistent[ ]'' practice of upholding BIA orders denying motions to 
reopen when ``the Lozada requirements have been flouted'').
    By contrast, the Second, Third, Fourth, Ninth, and Eleventh 
Circuits require substantial compliance. See Piranej v. Mukasey, 516 
F.3d 137, 142 (2d Cir. 2008) (``[T]his Court has `not required a 
slavish adherence to the [Lozada] requirements.' '') (quoting Yi Long 
Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007)); Rranci v. Att'y 
Gen., 540 F.3d 165, 173-74 (3d Cir. 2008) (warning of ``inherent 
dangers . . . in applying a strict, formulaic interpretation of 
Lozada'') (quoting Xu Long Yu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 
2001)); Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir. 2006) (``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.''); Correa-Rivera v. 
Holder, 706 F.3d 1128, 1131 (9th Cir. 2013) (``These requirements `are 
not rigidly applied, especially when the record shows a clear and 
obvious case of ineffective assistance.' '') (quoting Rodriguez-Lariz 
v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002)); Flores-Panameno v. Att'y 
Gen., 913 F.3d 1036, 1040 (11th Cir. 2019) (requiring ``substantial, if 
not exact compliance'' with Lozada) (citing Dakane v. Att'y Gen., 399 
F.3d 1269, 1274 (11th Cir. 2005)).
    Finally, the Eighth Circuit appears not to have staked out any 
definitive position. See Habchy v. Gonzales, 471 F.3d 858, 863 (8th 
Cir. 2006) (``Our circuit has not ruled on whether a strict application 
of those [Lozada] requirements could constitute an abuse of discretion 
in certain circumstances, and we need not do so here. At the very 
least, an IJ does not abuse his discretion in requiring substantial 
compliance with the Lozada requirements when it is necessary to serve 
the overall purposes of Lozada[.]''); Avitso v. Barr, 975 F.3d 719, 722 
(8th Cir. 2020) (citing Habchy and stating both that the alien ``must . 
. . satisfy the procedural requirements of Lozada'' and that he ``did 
not substantially comply with these requirements'').
    Further, circuit courts use various standards to evaluate 
prejudice. The First, Third, Fifth, Sixth, Eighth, Tenth, and Eleventh 
Circuits require a finding of reasonable probability that the error 
impacted the outcome of the proceeding. See Zeru v. Gonzales, 503 F.3d 
59, 72 (1st Cir. 2007); Fadiga v. Att'y Gen., 488 F.3d 142, 158-59 (3d 
Cir. 2013); Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018); Kada 
v. Barr, 946 F.3d 960, 965 & n.1 (6th Cir. 2020); Ortiz-Punetes v. 
Holder, 662 F.3d 481, 485 n.2 (8th Cir. 2011) (citing Obleshchenko v. 
Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004)); Mena-Flores v. Holder, 
776 F.3d 1152, 1169 & n.25 (10th Cir. 2015) (citing United States v. 
Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004)); Flores-Panameno, 
913 F.3d at 1040 (citing Dakane, 399 F.3d at 1274). The Third Circuit, 
however, has instructed that the ``reasonability probability'' standard 
requires ``merely a `significant possibility.' '' Calderon-Rosas v. 
Att'y Gen., 957 F.3d 378, 387 (3d Cir. 2020) (quoting United States v. 
Payano, 930 F.3d 186, 193 n.5 (3d Cir. 2019)).
    The Seventh and Ninth Circuits maintain a more lenient standard, 
requiring a finding that the error may have affected the outcome of the 
proceeding. See Garcia-Arce v. Barr, 946 F.3d 371, 378 (7th Cir. 2019) 
(``The prejudice prong requires a showing that counsel's errors 
actually had the potential for affecting the outcome of the 
proceedings.'') (quoting Sanchez v. Sessions, 894 F.3d 858, 862-63 (7th 
Cir. 2018)); Flores v. Barr, 930 F.3d 1082, 1088-89 (9th Cir. 2019) 
(``[T]he question

[[Page 75945]]

with respect to prejudice is whether counsel's deficient performance 
`may have affected the outcome of the proceedings,' which means that 
the petitioner `need only show plausible grounds for relief.' '') 
(quoting Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 
2008)).
    The Second Circuit, for its part, has stated that, in the context 
of an application for relief, to establish prejudice the alien must 
show prima facie eligibility and that he ``could have made a strong 
showing in support of his application.'' Scarlett v. Barr, 957 F.3d 
316, 326 (2d Cir. 2020) (quoting Rabiu v. INS, 41 F.3d 879, 882 (2d 
Cir. 1994)).
    Given these diverse judicial interpretations and the need for 
uniform direction on this subject, this rule proposes new changes to 
establish standardized procedures for adjudicating motions to reopen on 
the basis of claims of ineffective assistance of counsel in the context 
of broader rules regarding motions to reopen. As discussed below, this 
rule also addresses a number of larger issues related to all types of 
motions to reopen that go beyond the scope of the 2016 proposed rule, 
which was limited only to motions alleging ineffective assistance of 
counsel. Accordingly, this broader, more comprehensive rule would 
withdraw the narrower 2016 proposed rule.\5\
---------------------------------------------------------------------------

    \5\ Because the Department is withdrawing the previous proposed 
rule, the Department does not directly address the comments received 
on that proposed rule; all commenters are encouraged to resubmit 
relevant comments for the Department's response in the context of 
this proposed rule.
---------------------------------------------------------------------------

C. Departure Bar

    Both the BIA and immigration court regulations contain restrictions 
on the filing of motions to reopen or reconsider following an alien's 
departure from the United States--commonly referred to as the 
``departure bar.'' See 8 CFR 1003.2(d), 1003.23(b)(1). Specifically, 
the regulations prohibit an alien from filing a motion to reopen or 
reconsider following the alien's departure from the United States if 
the alien is subject to a final administrative order of removal, 
deportation, or exclusion. Id. The regulations further instruct that a 
departure from the United States constitutes the withdrawal of a 
previously filed motion to reopen or motion to reconsider. Id.
    The departure bar regulations predate Congress's inclusion of a 
statutory right to file a motion to reopen and a motion to reconsider 
in section 240(c)(6) and (7) of the INA, 8 U.S.C. 1229a(c)(6)-(7). See, 
e.g., Matter of G-Y-B-, 6 I&N Dec. 159, 159-60 (BIA 1954) (discussing 
the 1952 version of the departure bar regulations). This has led some 
to question whether the departure bar regulations are, in effect, 
superseded by the statute. The BIA held over a decade ago that ``the 
departure bar rule remains in full effect.'' Matter of Armendarez, 24 
I&N Dec. 646, 660 (BIA 2008). More recent federal circuit court 
decisions, however, have found that the departure bar now ``clearly 
conflicts'' with the INA, or that its application ``impermissibly 
restricts'' the BIA's jurisdiction. Toor v. Lynch, 789 F.3d 1055, 1057 
n.1 (9th Cir. 2015) (noting decisions from the First, Second, Third, 
Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits).
    While the Department has previously stated that it would initiate 
rulemaking to address the departure bar, see 77 FR 59567, 59568 (Sept. 
28, 2012), no relevant regulation has been proposed to date. This rule 
would address the matter.

III. Regulatory Changes

    Over the past twenty years, the Department has issued multiple 
Notices of Proposed Rulemaking related to motions to reopen and 
reconsider. See 81 FR at 49556; 67 FR at 31157 (supplementary proposed 
rule); 63 FR at 47205 (proposed rule). Further, the Department has 
maintained multiple entries on its Unified Agenda that reference such 
motions, such as Immigration Courts and the Board of Immigration 
Appeals: Motions to Reopen and Reconsider; Effect of Departure or 
Removal (RIN: 1125-AA74), and Motions To Reopen Removal, Deportation, 
or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance 
of Counsel (RIN: 1125-AA68). None of these rulemakings has ever been 
finalized, and rather than continue to assess these related issues in a 
piecemeal fashion, the Department believes that a more comprehensive 
rulemaking would be the most efficient way to consolidate and address 
them. Accordingly, the Department now proposes to consolidate and 
address all of these issues in the proposed rulemaking.
    The proposed rule would amend 8 CFR 1001.1, 1003.2, and 1003.23 and 
add a new section 1003.48 in subpart C. The proposed regulation would 
also amend the headings and table of contents of subpart C so that 
proposed section 1003.48 would apply to motions to reopen and related 
issues before both the BIA and the immigration courts. The proposed 
rule would also codify a clear definition of ``depart'' and 
``departure'' applicable to various contexts, including those related 
to a grant of advance parole. The proposed changes are as follows:

A. Revision of the Departure Bar

    Consistent with precedent from every circuit court to have 
addressed the issue, and in accordance with the Department's commitment 
to initiate rulemaking to address the departure bar, the Department now 
proposes to remove the departure bar from 8 CFR 1003.2(d) and 
1003.23(b)(1). Specifically, the Department proposes to remove the 
prohibition on the submission of motions to reopen or reconsider by an 
alien subject to a final order of removal, deportation, or exclusion 
following the alien's removal or departure from the United States. An 
alien would be allowed to file a motion to reopen or reconsider whether 
or not the alien is physically present in the United States, though 
whether that motion could be granted would remain subject to applicable 
law, and whether an alien is physically present in the United States 
may determine their prima facie eligibility for relief.\6\ See, e.g., 
Sadhvani v. Holder, 596 F.3d 180 (4th Cir. 2009) (holding that the 
Board did not abuse its discretion in denying a motion to reopen an 
asylum application from an alien outside of the United States because 
presence in the United States is required for asylum eligiblity). The 
Department also proposes to remove the provision that treats an alien's 
non-volitional departure as a withdrawal of a motion to reopen or 
reconsider.
---------------------------------------------------------------------------

    \6\ In addition, EOIR does not have the authority to order DHS 
to parole or admit an alien physically outside the United States 
into the United States following the grant of a motion to reopen or 
reconsider. Consequently, the granting of a motion to reopen or 
reconsider for an alien outside the United States would not 
necessarily mean that the alien would return to the United States. 
It may, however, undo a previous termination of an alien's status as 
a lawful permanent resident (LPR). See 8 CFR 1001.1(p) (``Such 
status terminates upon entry of a final administrative order of 
exclusion, deportation, removal, or rescission.''); Matter of Lok, 
18 I&N Dec. 101, 106 (BIA 1981). In such a case, the alien may be 
eligible to enter the United States as a returning LPR, though that 
determination will ultimately be made by DHS in the first instance, 
upon the alien's physical return to the United States and 
application for admission.
---------------------------------------------------------------------------

    In lieu of the existing departure bar, this rule proposes to add a 
narrow withdrawal provision stating that an alien's volitional 
departure from the United States, while a motion to reopen or 
reconsider is pending, constitutes a withdrawal of that previously 
filed motion to reopen or motion to reconsider. Further, the proposed 
rule would define ``depart'' and ``departure,'' so that this provision 
would apply only to volitional physical departures of an alien from the 
United States. See 8 CFR

[[Page 75946]]

1001.1(cc) and (dd) (proposed). This includes aliens who leave the 
United States after a final removal order is entered but still without 
having DHS enforce the order. However, the physical removal, 
deportation, or exclusion from the United States at the direction of 
DHS, or a return of the alien to a contiguous territory by DHS in 
accordance with section 235(b)(2)(C) of the Act, 8 U.S.C. 
1225(b)(2)(C), is specifically excluded from the definition and would 
not constitute a departure for purposes of deeming a motion withdrawn.
    The Department believes that this narrow withdrawal provision does 
not implicate the concerns that have led the federal circuit courts to 
refuse to apply the existing departure bar. First, the proposed 
withdrawal provision would not prevent aliens from filing motions to 
reopen or reconsider based on the alien's geographic location. The 
circuit courts have held that sections 240(c)(6) and (c)(7) of the Act, 
8 U.S.C. 1229a(c)(6) and (c)(7), do not impose any geographic 
restrictions on the filing of motions to reopen or reconsider. See, 
e.g., Santana v Holder, 731 F.3d 50, 56 (1st Cir. 2013) (holding that 
the statute ``nowhere prescribes, or even suggests, a geographic 
restriction on `an alien [who] may file' the motion''). Consistent with 
these holdings, this withdrawal provision would allow an alien to file 
a motion to reopen or reconsider from abroad, regardless of how the 
alien left the United States before filing the motion.
    Additionally, this proposed rule merely treats an already-filed 
motion as withdrawn upon the alien's volitional departure from the 
United States, and such a motion would be denied accordingly. In this 
way, this proposed rule would function identically to how an alien's 
right to appeal is waived if the alien volitionally departs the United 
States prior to taking an appeal and how an alien's appeal, other than 
for an arriving alien, is withdrawn if the alien volitionally departs 
the United States while the appeal is pending. See 8 CFR 1003.3(e), 
1003.4; see also Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 
2003) (holding that a volitional departure--even one that is ``brief, 
casual, and innocent''constitutes a withdrawal of an appeal pursuant to 
8 CFR 1003.4); Madrigal v. Holder, 572 F.3d 239, 244-45 & n.5 (6th Cir. 
2009) (interpreting 8 CFR 1003.3(e) and 1003.4 as having an implicit 
volitional element to their waiver provisions); cf. 8 CFR 1208.8(a) 
(``An applicant [for asylum] who leaves the United States without first 
obtaining advance parole . . . shall be presumed to have abandoned his 
or her application.'').
    Second, the proposed withdrawal provision eliminates any tension 
between the alien's right to file a motion to reconsider or reopen 
within 30 or 90 days, respectively, and DHS's requirement to remove the 
alien within 90 days of a final removal order. Compare INA 240(c)(6)-
(7), 8 U.S.C. 1229a(c)(6)-(7), with INA 241(a)(1), 8 U.S.C. 1231(a)(1). 
The majority of circuit courts have held that the existing departure 
bar conflicts with an alien's statutory right to file a motion to 
reopen or reconsider because the alien's non-volitional removal by DHS 
would trigger the departure bar even if the removal occurred within the 
time periods allowed to file the motions. See, e.g., Prestol Espinal v. 
Att'y Gen., 653 F.3d 213, 223 (3d Cir. 2011) (``If aliens are permitted 
to file motions to reconsider but are then removed by the government 
before the time to file has expired, the right to have that motion 
adjudicated is abrogated''); Coyt v. Holder, 593 F.3d 902, 907 (9th 
Cir. 2010) (``The only manner in which we can harmonize the provisions 
simultaneously affording the petitioner a ninety day right to file a 
motion to reopen and requiring the alien's removal within ninety days 
is to hold. . . . that the physical removal of a petitioner by the 
United States does not preclude the petitioner from pursuing a motion 
to reopen.''). The proposed withdrawal provision addresses this concern 
by limiting the provision only to an alien's volitional departure, 
which the Department believes evidences the alien's intention to 
abandon the motion or to otherwise fail to prosecute it.\7\
---------------------------------------------------------------------------

    \7\ Any departure resulting from a DHS removal would no longer 
constitute a departure that results in a withdrawal of the motion 
under the regulations.
---------------------------------------------------------------------------

    By definition, an alien who would be subject to the proposed 
volitional departure bar would already be subject to an 
administratively final order of removal. Therefore, the alien would 
know the consequences of departing the United States and, thus, 
executing that removal order. See Mansour v. Gonzales, 470 F.3d 1194, 
1198 (6th Cir. 2006) (``It is well settled that when an alien departs 
the United States while under a final order of deportation, he or she 
executes that order pursuant to the law. . . . Once an alien departs, 
thereby executing the order of deportation, he loses his right to 
contest the lawfulness of the proceedings.'' (internal quotation 
omitted)); see generally 8 CFR 241.7, 1241.7 (providing that an alien 
executes an outstanding removal order or ``self-removes'' when he 
departs the United States). Moreover, the alien would also know that if 
he were to illegally re-enter the United States after executing that 
order, he may be ineligible to seek to reopen that original order. INA 
241(a)(5), 8 U.S.C. 1231(a)(5). Thus, an alien's volitional departure 
notwithstanding these consequences would represent a conscious decision 
by the alien to forgo further presence in the United States and evince 
an effort to abandon or stop pursuing efforts at remaining. Such a 
decision to depart of the alien's own accord would be generally 
inconsistent with an effort to undo a removal order that, if 
successful, would allow an alien to remain.
    Moreover, although a motion to reopen is provided for by statute, 
INA 240(c)(7), 8 U.S.C. 1229a(c)(7), whereas an appeal to the Board is 
not, a motion to reopen nevertheless functions similarly to an appeal 
to the Board of a removal order issued by an immigration judge. In both 
situations, an alien is mounting a challenge to the denial of the 
alien's request to remain in the United States. As discussed, an 
alien's departure after the filing of an appeal but before a decision 
has been issued by the Board usually serves as a withdrawal of the 
appeal, 8 CFR 1003.4,\8\ and federal courts have generally affirmed the 
validity of this departure bar for appeals, see, e.g., Aguilera-Ruiz, 
348 F.3d at 838.
---------------------------------------------------------------------------

    \8\ There is a regulatory exception to the withdrawal provision 
in 8 CFR 1003.4 for an ``arriving alien'' as defined in 8 CFR 
1001.1(q) that appears to be based on a historical distinction 
between deportation proceedings for aliens who had entered the 
United States and exclusion proceedings for aliens who were stopped 
at a port of entry. See 8 CFR 1003.4; Matter of Keyte, 20 I&N Dec. 
158, 159 (BIA 1990) (``The departure pending appeal of an alien who 
has been stopped at the border and ordered excluded is not 
necessarily incompatible with a design to prosecute the appeal to a 
conclusion.'').
---------------------------------------------------------------------------

    Further, multiple courts have read an implicit volitional 
requirement into the application of 8 CFR 1003.4, similar to the one 
proposed by the Department in this rule for motions to reopen or 
reconsider. See, e.g., Madrigal, 572 F.3d at 244-45 & n.5; Lopez-Angel 
v. Barr, 952 F.3d 1045, 1048-49 (9th Cir. 2019) (following Madrigal); 
see also Coyt, 593 F.3d at 907 (agreeing with Madrigal and reaching a 
similar conclusion with respect to 8 CFR 1003.2(d)). Finally, at least 
one court has noted that the Department could simply engage in 
rulemaking to establish a volitional departure bar to motions to reopen 
or reconsider as a categorical discretional determination. Marin-
Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir.

[[Page 75947]]

2010) (``An agency may exercise discretion categorically, by 
regulation, and is not limited to making discretionary decisions one 
case at a time under open-ended standards.''). To that end, the 
proposed rule reflects the Department's discretionary determination 
that a motion to reopen or reconsider should be deemed withdrawn when 
an alien volitionally departs the United States after filing the motion 
but before it is decided.
    While nearly every circuit has opined on the apparent tension 
between the existing departure bar and the statutory right to file a 
motion to reopen and reconsider, see Toor, 789 F.3d at 1060 n.3 
(collecting cases), no court has decided whether the voluntary or 
involuntary nature of an alien's departure should determine if a 
previously filed motion to reopen is deemed withdrawn under 8 CFR 
1003.2(d) or 1003.23(b). The Ninth Circuit has stated that the 
departure bar is ``invalid irrespective of how the noncitizen departed 
the United States,'' but its analysis was limited to the departure bar 
provisions that this proposed regulation would remove--that an alien 
may not file a motion to reopen following his departure from the United 
States. Id. at 1059, 1064. Under the proposed regulation, an alien may 
file a motion to reopen orreconsider following departure from the 
United States regardless of whether the departure was volitional. But 
under the proposed rule, a motion would be deemed withdrawn when an 
alien has volitionally departed the United States after filing the 
motion but before it is decided. Therefore, for the purposes of this 
rule, the terms ``depart'' and ``departure'' are defined to mean the 
voluntary physical departure of an alien from the United States. Cf. 
Lopez-Angel, 952 F.3d at 1050 (Lee, J., concurring) (``The ordinary 
meaning of the word `departure' refers to a volitional act. . . . The 
context of the word `departure' [in 8 CFR 1003.4] also suggests that it 
does not include forcible removals.'').

B. Definition of ``Depart'' and ``Departure''

    As stated above, the proposed rule would define the terms 
``depart'' and ``departure'' consistent with their ordinary meaning, 
which includes any voluntary physical departure from the United States. 
The INA does not define ``depart'' or ``departure,'' but such a 
definition is also consistent with existing regulations and a 
precedential decision of the BIA.
    Regulations controlling the departure of aliens in parts 215 and 
1215 of 8 CFR define the phrase ``depart from the United States'' to 
mean, inter alia, to ``depart by land, water, or air . . . [f]rom the 
United States for any foreign place.'' 8 CFR 215.1(h), 1215.1(h). These 
regulations reflect a common-sense, geography-based understanding of 
the meaning of departure. Although this definition applies only to the 
concept of departure in parts 215 and 1215, the BIA nevertheless relied 
on it, in part, in analyzing the status of an alien who left the United 
States, was denied refugee status in Canada, and then returned to the 
United States, concluding that the alien had ``departed'' the United 
States and was therefore an ``arriving alien'' not removable under 
section 237(a)(1)(B) of the INA, 8 U.S.C. 1227(a)(1)(B). See Matter of 
R-D-, 24 I&N Dec. 221, 223 (BIA 2007). In Matter of Lemus, the BIA also 
recognized that there was a ``plain and ordinary meaning'' of the term 
``departure,'' which was defined broadly. 24 I&N Dec. 373, 376-77 (BIA 
2007) (``Lemus-Losa I''). Further, the BIA held that leaving the United 
States pursuant to a grant of advance parole is a ``departure'' for 
purposes of section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. 
1182(a)(9)(B)(i)(II). See id. In 2012, prior to deciding Arrabelly, the 
BIA affirmed Lemus-Losa I. See Matter of Lemus-Losa, 25 I&N Dec. 734 
(2012). In contrast, in Matter of Arrabally, 25 I&N Dec. 771 (BIA 
2012), the BIA held that leaving the United States pursuant to a grant 
of advance parole is not a ``departure'' under section 
212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(II). See 
Arrabally, 25 I&N Dec. at 778-80. The BIA relied heavily on what it 
surmised was ``Congress' intent'' and the ``manifest purpose'' of the 
statutory provision. Id. at 776.\9\ Yet the decision did not address 
the BIA's prior view of the concept of departure in Matter of R-D-, 
unpersuasively disregarded earlier precedential decisions on all fours, 
and failed to engage the regulatory text of 8 CFR 215.1(h) and 
1215.1(h). Despite acknowledging that parole is never guaranteed, it 
found that a departure following a grant of advance parole was 
qualitatively different than other types of departures. In doing so, it 
disregarded the plain text of the statute, BIA precedent in Matter of 
R-D- and Lemus-Losa I, the text of 8 CFR 215.1(h) and 1215.1(h), and 
over twenty years of policy and practice to the contrary in lieu of a 
previously-unidentified ``Congressional intent.'' Id. at 774-77. The 
BIA's decision in Arrabally departed from a common-sense understanding 
of the term ``departure'' and disregarded a significant body of law and 
policy without a strong justification.
---------------------------------------------------------------------------

    \9\ In Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007) 
(``Lemus-Losa I''), the BIA held that leaving the United States 
pursuant to a grant of advance parole is a ``departure'' for 
purposes of section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. 
1182(a)(9)(B)(i)(II). See Lemus-Losa I, 24 I&N Dec. at 376-77. In 
2012, prior to deciding Arrabelly, the BIA affirmed Lemus-Losa I. 
See Matter of Lemus-Losa, 25 I&N Dec. 734 (2012).
---------------------------------------------------------------------------

    In order to appropriately administer the law, the Department must 
have a uniform definition of ``depart'' and ``departure'' to apply. The 
definition contained in the proposed rule is consistent with the INA, 
with other regulations, with historical practice, and with relevant 
case law, except for Arrabally, which represents an unsupported 
outlying view. Accordingly, as a adjunct of the Department's 
consideration of the effect of departures on certain motions, the 
proposed rule would overrule the BIA's decision in Arrabally.

C. Failure To Surrender and Fugitive Disentitlement

    The proposed regulation would provide that the moving party shall 
include in any motion to reopen or reconsider: (1) Whether or not the 
subject of the order of removal, deportation, or exclusion was notified 
to surrender to DHS for removal, deportation, or exclusion; and (2) 
whether the subject, if so ordered, has complied. This rule does not 
propose any restrictions on the format of the surrender notification or 
when the notification must be given; it provides only that the 
immigration judge or BIA will consider all relevant information 
regarding any notification and the corresponding compliance or non-
compliance in determining whether to grant a motion to reopen or to 
reconsider as a matter of discretion.
    When adjudicating the motion, the judge or the BIA ``is required to 
weigh both favorable and unfavorable factors by evaluating all of them, 
assigning weight or importance to each one separately and then to all 
of them cumulatively.'' Franco-Rosendo v. Gonzales, 454 F.3d 965, 966-
67 (9th Cir. 2006) (citing Arrozal v. INS, 159 F.3d 429, 433 (9th 
Cir.1998)). After being given notice of the surrender requirement, an 
alien's failure to surrender would generally be treated as an 
unfavorable factor in this determination, consistent with longstanding 
case law holding that an alien's failure to report for removal 
represents a ``deliberate flouting of the immigration laws'' and 
therefore counts as a ``a very serious adverse factor which warrants 
the denial'' of a

[[Page 75948]]

discretionary motion, such as a motion to reopen or reconsider. Matter 
of Barocio, 19 I&N Dec. 255 (BIA 1985); see Franco-Rosendo, 454 F.3d at 
966-67 (citing cases in support of the proposition).
    In the same vein, this proposed change adapts the fugitive 
disentitlement doctrine, according to which a court dismisses an appeal 
if the subject absconds while it is pending, from the federal court 
system to the immigration courts by explicitly providing that failure 
to surrender is an adverse factor for consideration. The fugitive 
disentitlemlent doctrine has existed ``for well over a century'' in the 
criminal law because it ``serves an important detterence function'' and 
protects ``the enforceability of a court's judgments.'' Martin v. 
Mukasey, 517 F.3d 1201, 1204-05 (10th Cir. 2008); see also Degen v. 
United States, 517 U.S. 820, 823-24 (1996) (explaining the doctrine). 
It has been extended to the immigration context, where ``the 
petitioners are fugitive aliens who have evaded custody and failed to 
comply with a removal order.'' Giri v. Keisler, 507 F.3d 833, 835 (5th 
Cir. 2007); see also Martin, 517 F.3d at 1204; Sapoundjiev v. Ashcroft, 
376 F.3d 727, 728-29 (7th Cir. 2004) (``A litigant whose disappearance 
makes an adverse judgment difficult if not impossible to enforce cannot 
expect favorable action.''); Bar-Levy v. Dep't. of Justice, INS, 990 
F.2d 33, 35 (2d Cir. 1993) (``Although an alien who fails to surrender 
to the INS despite a lawful order of deportation is not, strictly 
speaking, a fugitive in a criminal matter, we think that he is 
nonetheless a fugitive from justice. Like the fugitive in a criminal 
matter, the alien who is a fugitive from a deportation order should 
ordinarily be barred by his fugitive status from calling upon the 
resources of the court to determine his claims.'').
    The Department believes that the proposed requirement to notify the 
immigration judge or the BIA whether the alien has complied with an 
order to surrender would appropriately balance an alien's statutory 
right to file a motion to reopen reconsider with the government's 
interests in ``encourage[ing] voluntary surrenders'' and avoiding ``the 
difficulty of enforcing a judgment against a fugitive.'' Bright v. 
Holder, 649 F.3d 397, 399 (5th Cir. 2011). It is also fully consistent 
with the Department's position for over thirty years that ``the 
incentives for an alien to voluntarily depart from the United States or 
to submit to a deportation order are abated by the availability of 
procedures which provide a seemingly endless opportunity to seek relief 
from deportation'' and that adjudicators should ``decline to reward 
[such] disdain for the law by exercising [their] discretion to reopen 
proceedings.'' Barocio, 19 I&N Dec. at 258.
    In light of the revised approach set forth above, the Department 
does not intend at this time to pursue finalization of either of the 
previous proposed rules regarding the effect of failure to surrender, 
as published at 67 FR at 31157 and 63 FR at 47205.

D. Standards for Motions To Reopen or Reconsider Generally

    The Department proposes to add general standards to further clarify 
the requirements for the adjudication of motions to reopen or 
reconsider by the immigration courts and the BIA.
    Currently, the regulations require that an alien who files a motion 
to reopen in order to submit an application for relief must include the 
application, and any supporting documents, together with the motion. 
See 8 CFR 1003.2(c)(1), 1003.23(b)(3). The proposed rule would provide 
additional guidance regarding the impact that the nature of the relief 
the alien seeks may have on the adjudication of the motion to reopen or 
reconsider. If an alien's motion to reopen or reconsider is premised 
upon relief that the immigration judge or the BIA lacks authority \10\ 
to grant, the judge or the BIA may only grant the motion if another 
agency has first granted the underlying relief. Neither an immigration 
judge nor the BIA may reopen proceedings due to a pending application 
for relief with another agency if the judge or the BIA would not have 
authority to grant the relief in the first instance,\11\ though the 
alien may seek a stay of removal in such a circumstance with DHS 
pursuant to 8 CFR 241.6. In other words, there is neither a legal nor 
an operational basis for the BIA or an immigration judge to reopen 
proceedings in which neither can offer redress to the alien on an 
underlying application, and the inability to offer redress does not 
prejudice the alien because the alien can always apply to DHS for a 
stay of removal while DHS adjudicates the underlying application.
---------------------------------------------------------------------------

    \10\ Recognizing that the word ``jurisdiction'' is one of 
``many, too many meanings,'' Union Pacific Railroad Co. v. 
Brotherhood of Locomotive Engineers, 558 U.S. 67, 81 (2009), and 
that its use in the context of both motions and underlying 
applications may be confusing, the Department believes this point is 
better framed in terms of authority rather than jurisdiction. There 
are many immigration applications which the Department lacks 
authority to adjudicate because such authority is committed to DHS. 
See, e.g., 8 U.S.C. 1255(l)(1) (stating that DHS has exclusive 
authority to grant adjustment of status to an alien with a T visa); 
Matter of Sanchez-Sosa, 25 I&N Dec. 807, 811 (BIA 2012) (``The [DHS] 
has exclusive [authority] over U visa petitions and applications for 
adjustment of status under section 245(m) of the Act.''); Matter of 
Martinez-Montalvo, 24 I&N Dec. 778, 778-89 (BIA 2009) (stating that 
immigration judges have no authority to adjudicate an application 
filed by an arriving alien seeking adjustment of status under the 
Cuban Refugee Adjustment Act of November 2, 1966, with the limited 
exception of an alien who has been placed in removal proceedings 
after returning to the United States pursuant to a grant of advance 
parole to pursue a previously filed application); Matter of Singh, 
21 I&N Dec. 427, 433-34 (BIA 1996) (stating that EOIR lacks 
authority to adjudicate legalization applications pursuant to 
section 245A of the INA).
    \11\ Many reasons militate against granting a motion to reopen 
based on an underlying application over which an immigration judge 
and the Board lack authority. Chief among those reasons is the 
finite nature of the agency's resources, which should be allocated 
to matters over which EOIR adjudicators have authority. Expending 
adjudicative and administrative reources on matters over which the 
agency has no authority results in more unnecessary and time-
consuming continuances, difficulty maintaining open cases that rely 
on outside considerations, and the need to enter orders that simply 
restate another's findings and holdings. See Matter of Yauri, 25 I&N 
Dec. 103, 110-11 (BIA 2009).
---------------------------------------------------------------------------

    This proposed rule is also fully consistent with longstanding 
precedent, discussed below, that both requires an alien to demonstrate 
prima facie eligibility for relief in order to have a motion to reopen 
granted and allows a motion to reopen to be denied as a matter of 
discretion even when prima facie eligibility has been shown. In short, 
this change would codify Matter of Yauri, 25 I&N Dec. 103, 107-10 (BIA 
2009), in chapter V of the regulations and make clear that neither the 
Board nor an immigration judge will exercise discretion to reopen 
proceedings in cases in which neither the Board nor an immigration 
judge has authority over the application the alien is ultimately 
pursuing.\12\
---------------------------------------------------------------------------

    \12\ In Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), the Ninth 
Circuit held that the Board possessed sua sponte authority to reopen 
a proceeding involving an application over which it lacked authority 
and to effectively grant a stay of removal, notwithstanding the 
decision in Yauri. See Singh, 771 F.3d at 652. Singh, however, did 
not address the Board's determination in Yauri that it would not 
exercise its discretion--even acting within its sua sponte 
authority--to reopen cases involving applications over which it 
lacked authority. Compare id. at 653 (``Because the BIA denied 
Singh's motion only for lack of authority, we grant the petition and 
remand to the BIA.''), with Yauri, 25 I&N Dec. at 110 (``Finally, 
and separately from any question of jurisdiction, with regard to 
untimely or number-barred motions to reopen, we conclude that sua 
sponte reopening of exclusion, deportation, or removal proceedings 
pending a third party's adjudication of an underlying application 
that is not itself within our [authority] ordinarily would not be 
warranted as a matter of discretion.''). Singh also did not address 
the availability of a stay of removal from DHS in circumstances in 
which DHS has sole authority over the application at issue. See 8 
CFR 241.6. Consequently, the extent to which the Board has 
discretion to deny motions in support of applications over which it 
has no authority remains unsettled. The proposed rule would codify 
the intent of Yauri and the procedures and standards to be used for 
considering requests for a stay of removal. Additionally, the 
Department notes that it has proposed eliminating sua sponte 
reopening authority by the Board in most instances, Appellate 
Procedures and Decisional Finality in Immigration Proceedings; 
Administrative Closure, 85 FR 52491 (Aug. 26, 2020), undermining 
Singh.

---------------------------------------------------------------------------

[[Page 75949]]

    Similarly, under the proposed rule, if the alien seeks relief that 
the immigration judge or the BIA would have authority to grant, the 
immigration judge or the BIA would be able to grant the motion only if 
the alien first establishes prima facie eligibility for that relief. In 
other words, a lack of prima facie eligibility would be sufficient for 
an immigration judge or the BIA to deny a motion to reopen or 
reconsider. Such prima facie eligibility must include evidence that the 
alien has the relevant approved, current visa, if a visa is required. 
This proposed rule would therefore codify and explicate the same 
longstanding rule widely recognized in case law. See INS v. Abudu, 485 
U.S. 94, 104 (1988) (``There are at least three independent grounds on 
which the BIA may deny a motion to reopen. First, it may hold that the 
movant has not established a prima facie case for the underlying 
substantive relief sought.'').
    The proposed rule would not alter the authority of the Board and 
immigration judges to deny a motion to reopen as a matter of 
discretioneven when the alien has established a prima facie case for 
the underlying substantive relief. See 8 CFR 1003.2(a) (``The Board has 
discretion to deny a motion to reopen even if the party moving has made 
out a prima facie case for relief.''); 1003.23(b)(3) (``The Immigration 
Judge has discretion to deny a motion to reopen even if the moving 
party has established a prima facie case for relief.''); see also INS 
v. Doherty, 502 U.S. 314, 333 (1992) (Scalia, J., concurring in part 
and dissenting in part), (``[T]he Attorney General's power to grant or 
deny, as a discretionary matter, various forms of non-mandatory relief 
includes within it what might be called a `merits-deciding' discretion 
to deny motions to reopen, even in cases where the alien is statutorily 
eligible and has complied with the relevant procedural 
requirements.''); Abudu, 485 U.S. at 104-05 (``[I]n cases in which the 
ultimate grant of relief is discretionary (asylum, suspension of 
deportation, and adjustment of status, but not withholding of 
deportation), the BIA may leap ahead, as it were, over the two 
threshold concerns . . . and simply determine that even if they were 
met, the movant would not be entitled to the discretionary grant of 
relief.''); Mendias-Mendoza v. Sessions, 877 F.3d 223, 227 (5th Cir. 
2017) (quoting and applying Abudu); Poniman v. Gonzales, 481 F.3d 1008, 
1011 (8th Cir. 2007) (same). The provisions would therefore help deter 
and efficiently resolve frivolous motions to reopen or reconsider, 
promoting the ``strong public interest'' in the completion of removal 
proceedings ``as promptly as is consistent with giving the adversaries 
a fair opportunity to develop and present their respective cases.'' 
Abudu, 485 U.S. at 107; cf. INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5 
(1981) (per curiam) (``If INS discretion is to mean anything, it must 
be that the INS has some latitude in deciding when to reopen a case. 
The INS should have the right to be restrictive. Granting such motions 
too freely will permit endless delay of deportation by aliens creative 
and fertile enough to continuously produce new and material facts 
sufficient to establish a prima facie case. It will also waste the time 
and efforts of immigration judges called upon to preside at hearings 
automatically required by the prima facie allegations.'') (quoting 
Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, 
J. dissenting)).
    Consistent with current practice in immigration courts and the 
BIA,\13\ the proposed regulation would also clarify that immigration 
judges and the BIA may not automatically grant a motion to reopen or 
reconsider that is jointly filed, that is unopposed, or that is deemed 
unopposed because a response was not timely filed.\14\ As explained, 
the BIA is vested with broad discretion to grant or deny these motions; 
no authority requires the BIA to grant such a motion when it is jointly 
filed or unopposed, or when no timely response is made. See Doherty, 
502 U.S. at 322-23; see also Abudu, 485 U.S. at 105-06; Jong Ha Wang, 
450 U.S. at 143 n.5. The proposed rule would further specify that 
neither an immigration judge nor the BIA may grant a motion to reopen 
or reconsider for the purpose of terminating or dismissing the 
proceeding, unless the motion satisfies the standards for both the 
motion, including the prima facie requirement discussed above if 
applicable,\15\ and the requested termination or dismissal. See 8 CFR 
1239.2(c), (f); see also Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 
(A.G. 2019) (holding that the authority to dismiss or terminate 
proceedings is constrained by the regulations and is not a ``free-
floating power''). To facilitate this inquiry, the proposed regulation 
provides a definition of ``termination'' and explains that termination 
includes both the termination and the dismissal of proceedings, 
wherever those terms are used in the regulations. Cf. id. at 467 
(``Although `dismissal' and `termination' have distinct meanings and 
different requirements under the regulations, they are similar concepts 
in the context of concluding removal proceedings . . . .'').
---------------------------------------------------------------------------

    \13\ See U.S. Dep't of Justice, Executive Office for Immigration 
Review, Board of Immigration Appeals Practice Manual, ch. 5.11 (Oct. 
19, 2018 update) (``BIA Practice Manual''), https://www.justice.gov/eoir/page/file/1103051/download; U.S. Dep't of Justice, Executive 
Office for Immigration Review, Immigration Court Practice Manual, 
chs. 3.1(b) & (d)(ii), 5.12 (Aug. 2, 2018 update) (``Immigration 
Court Practice Manual''), https://www.justice.gov/eoir/page/file/1084851/download.
    \14\ As explained, the BIA is vested with broad discretion to 
grant or deny these motions; no authority requires the BIA to grant 
such a motion when it is jointly filed or unopposed, or when no 
timely response is made. See Doherty, 502 U.S. at 322-23; see also 
Abudu, 485 U.S. at 105-06 (quoting Jong Ha Wang, 450 U.S. at 143 
n.5).
    \15\ For example, the prima facie requirement discussed above 
would not apply to motions to reopen filed for purposes of dismissal 
pursuant to 8 CFR 239.2(c) and 1239.2(c).
---------------------------------------------------------------------------

    The proposed rule would also offer clarity regarding how the Board 
or an immigration judge should evaluate allegations and arguments made 
in a motion to reopen or motion to reconsider and the evidence 
supporting such a motion. The Board--and, by extension, immigration 
judges--have ``broad discretion'' to weigh the credibility of evidence 
offered in support of a motion to reopen. Dieng v. Barr, 947 F.3d 956, 
961 (6th Cir. 2020). Although the Supreme Court has explained that a 
summary judgment standard is not appropriate for evaluating a motion to 
reopen, and that evidence in favor of the movant need not be accepted 
as true, the regulations provide little guidance as to when allegations 
should be accepted or disregarded. Abudu, 485 U.S. at 109 (``We have 
never suggested that all ambiguities in the factual averments [in a 
motion to reopen] must be resolved in the movant's favor, and we have 
never analogized such a motion to a motion for summary judgment. The 
appropriate analogy is a motion for a new trial in a criminal case on 
the basis of newly discovered evidence, as to which courts have 
uniformly held that the moving party bears a heavy burden.''); Dieng, 
947 F.3d at 963 (``Comparing the BIA's adjudicatory role to that of a 
trial judge reviewing a motion for summary judgment is inappropriate 
where `every delay works to the advantage of the deportable alien who 
wishes merely to remain in the United States.' '' (quoting

[[Page 75950]]

Doherty, 502 U.S. at 323)); see also M.A. v. INS, 899 F.2d 304, 309-10 
(4th Cir. 1990) (en banc) (Wilkinson, J.) (``The term `prima facie 
case' is not a buzzword that requires us to ignore the procedural 
posture of the case . . . . There is nothing incongruous about the 
Board interpreting its regulations to require that a prima facie 
showing in a reopening context be more demanding than the statutory 
standard in an original proceeding.'').
    The proposed rule clarifies that factual assertions that are 
contradicted, unsupported, conclusory, ambiguous, or otherwise 
unreliable should not be accepted as true, consistent with current 
standards. See, e.g., Dieng, 947 F.3d at 963-64 (affidavits that are 
``self-serving and speculative,'' statements concerning changed country 
conditions that are not ``based on personal knowledge,'' and letters 
from petitioners' family members that are ``speculative, and not 
corroborated with objective evidence,'' may be discredited as 
``inherently unbelievable''). Consistent with Abudu, it would further 
make clear that the Board is not required to take all assertions in a 
motion to reopen at face value. Contra Ghahremani v. Gonzales, 498 F.3d 
993, 999 (9th Cir. 2007) (``Our case law establishes, however, that the 
BIA was under an affirmative obligation to `accept as true the facts 
stated in Ghahremani's affidavit [in support of his motion] in ruling 
upon his motion to reopen unless it finds those facts to be inherently 
unbelievable.' '') (quoting Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 
1985)). The proposed rule further clarifies that an adjudicator is not 
required to accept the legal arguments of either party as correct. It 
also codifies longstanding law that assertions made in a filing by 
counsel, such as a motion to reopen or motion to reconsider, are not 
evidence and should not be treated as such. See Matter of Ramirez-
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (holding that counsel's 
``mixed factual and legal'' assertions ``are not evidence'').
    This rulemaking would also make changes to provide clearer 
standards for adjudicating motions to reopen and reconsider. First, the 
rule would relocate language concerning criminal aliens and the 
requirements for such aliens to include information about pending 
criminal prosecutions from 8 CFR 1003.2 and 1003.23 to the new 
regulation at 8 CFR 1003.48. Relocating this language would consolidate 
pertinent information into one section. In addition, the proposed rule 
would add a new requirement regarding disclosures of any convictions 
that occurred between the order of removal and the filing of the motion 
to reopen, to ensure that immigration judges or the Board have all 
relevant information about the alien's circumstances. Further, the 
proposed rule would require the disclosure of any reinstated order of 
removal pursuant to section 241(a)(5) of the Act, 8 U.S.C. 1231(a)(5). 
Without such a requirement, the adjudicator may inappropriately 
consider a motion to reopen that is otherwise prohibited by statute. 
All of these requirements will assist adjudicators in making proper 
decisions based on a current record.
    The proposed rule would also prohibit the Board or an immigration 
judge from granting a motion to reopen or reconsider filed by an alien 
unless the alien has provided appropriate contact information for 
further notification or hearing. This proposal is similar to the 
requirements for a change of venue, 8 CFR 1003.20(c), and ensures that 
proceedings are not reopened only to be delayed because the Board or an 
immigration court lacks a current address for the alien. See Degen, 517 
U.S. at 824 (explaining a court's authority to dismiss an appeal or 
writ of certiorari when the party seeking relief is a fugitive while 
the matter is pending because if ``the party cannot be found, the 
judgment on review may be impossible to enforce''); cf. Sapoundjiev, 
376 F.3d at 729 (``When an alien fails to report for custody, this sets 
up the situation that Antonio-Martinez called `heads I win, tails 
you'll never find me[.]' '') (quoting Antonio-Martinez v. INS, 317 F.3d 
1089, 1093 (9th Cir. 2003)).
    The proposed rule would add a new paragraph in 8 CFR 1003.2(c)(3) 
to align that regulation with both the statutory language in INA 
240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), and the provision 
applicable to immigration judges in 8 CFR 1003.23(b)(4)(i) relating to 
motions to reopen based on changed country conditions. Following INA 
240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), 8 CFR 1003.23(b)(4)(i) 
includes an exception to the general time and number limitations 
applicable to motions to reopen if the motion seeks to file a new 
application for asylum, statutory withholding of removal, or protection 
under the Convention Against Torture based on changed county conditions 
and supported by evidence that is material and was not available and 
could not have been discovered or presented at the previous proceeding. 
It also includes additional language related to stays of removal and 
the implications of finding a prior asylum application to have been 
frivolous. See 8 CFR 1003.23(b)(4)(i). No similar regulation for 
removal proceedings exists for the Board, however.\16\
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    \16\ Two provisions applicable to the Board cross-reference 8 
CFR 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii), but no regulation 
cross-references 8 CFR 1003.23(b)(4)(i). See 8 CFR 1003.2(c)(3) and 
(3)(i). Further, although 8 CFR 1003.2(c)(3)(ii) contains language 
broadly analogous to 8 CFR 1003.23(b)(4)(i), it appears to apply to 
deportation proceedings rather than removal proceedings and, 
accordingly, uses language different from that of the statute 
applicable to removal proceedings. Compare 8 CFR 1003.2(c)(3)(ii) 
(referencing ``withholding of deportation based on changed 
circumstances arising in the country of nationality or in the 
country to which deportation has been ordered'') (emphasis added), 
with INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii) (referencing 
``changed country conditions arising in the country of nationality 
or the country to which removal has been ordered'') (emphasis 
added).
---------------------------------------------------------------------------

    The Department believes that immigration judges and the Board 
should adjudicate motions to reopen removal proceedings related to 
changed country conditions under the same standards. Nothing in the INA 
suggests that the standards should be different. Further, the Board is 
just as likely--if not more so--to consider stay requests in 
conjunction with motions to reopen in this context and to consider the 
implications of a prior finding of frivolousness for a motion to reopen 
as immigration judges are. See, e.g., Matter of H-Y-Z-, 28 I&N Dec. 
156, 160 (BIA 2020) (``Therefore, the subsequent filing of a motion to 
reopen [with the Board], even one that challenges a frivolousness 
finding, has no effect on the statutory bar to immigration benefits. . 
. . This is consistent with the regulation regarding motions to reopen 
before the Immigration Judge. . . .''). Consequently, to harmonize the 
standards applied by both immigration judges and the Board to motions 
to reopen in this context, the Department proposes to insert the 
language of 8 CFR 1003.23(b)(4)(i), which tracks the statutory 
provisions of INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii), into 
regulations applicable to the Board by adding a new paragraph 8 CFR 
1003.2(c)(3)(v).
    In addition, the proposed rule would clarify that an alien who 
files a motion to reopen and applies for asylum or related relief based 
on changed country conditions need not submit a copy of the record of 
proceedings or administrative file with the motion. Finally, the 
proposed rule would delete outdated alternate deadlines in 8 CFR 
1003.23(b), 1003.2(b)(2), and 1003.2(c)(2) for filing motions to reopen 
or reconsider.

[[Page 75951]]

E. Specific Standards for Motions To Reopen Due to Ineffective 
Assistance of Counsel

1. Overview of the Proposed Rule
    As noted in section II.B, although courts have broadly endorsed the 
framework of Lozada in considering motions to reopen based on claims of 
ineffective assistance of counsel, several courts have declined to give 
full effect to the Lozada requirements where, in the court's view, 
compliance is not necessary. 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.''). In addition, courts have adopted varying standards for 
establishing prejudice.
    The proposed rule would therefore establish uniform procedural and 
substantive requirements for the filing of motions to reopen based upon 
a claim of ineffective assistance of counsel which will, in turn, 
provide a uniform standard for adjudicating such motions. The 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) (internal quotation marks omitted). The filing requirements 
described in the proposed rule would also guide an alien alleging 
ineffective assistance of counsel in providing evidence necessary to 
adjudicate the claim. As the Board noted in 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.'' 
Lozada, 19 I&N Dec. at 639. In short, the proposed rule will protect 
aliens from incompetent or unscrupulous attorneys, protect attorneys 
from improper or unfounded allegations of professional misconduct, and 
product the integrity of EOIR's immigration proceedings as a whole.
    The proposed rule would provide standards for filing and 
adjudicating motions to reopen or reconsider based upon a claim of 
ineffective assistance of counsel, generally following the BIA's 
instruction and current requirements under Lozada, 19 I&N Dec. at 639; 
section 240(c)(7) of the Act, 8 U.S.C.1229a(c)(7); and the applicable 
regulations at 8 CFR 1003.2 and 1003.23. The standard for adjudication 
would require such motion to demonstrate that the counsel's conduct was 
ineffective and prejudiced the individual. The proposed rule would 
allow for possible relief due to ineffective assistance of counsel, 
which the rule would define as attorneys or accredited representatives 
under 8 CFR 1292.1(a)(1) and (a)(4), or any other person who 
represented the alien in proceedings before the immigration court or 
the BIA and who the alien reasonably but erroneously believed was 
authorized to do so. In evaluating counsel's conduct, the proposed 
regulation would require that the conduct be unreasonable based on the 
facts of the case, viewed at the time of the conduct at issue. The 
proposed rule would also require the alien to demonstrate prejudice 
based on that conduct.
    The proposed rule would not enumerate specific conduct that amounts 
to ineffective assistance in immigration proceedings; rather, the 
proposed rule would adopt a standard similar to the one rooted in 
Strickland v. Washington, 466 U.S. 668 (1984).\17\ 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.
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    \17\ Although immigration proceedings are civil in nature and 
Strickland applies to criminal proceedings, the use of standards 
imported from Strickland should provide greater protection to aliens 
since criminal defendants possess greater rights and protections 
than aliens in removal proceedings. The Department notes, however, 
that its use of Strickland in this context is simply a policy 
determination for purposes of administering the proposed regulation 
and should not be construed as an assertion that aliens should have 
the same rights afforded to criminal defendants, including the right 
to counsel at government expense.
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    Under the proposed rule, a tactical decision could not amount to 
ineffective assistance if the decision was reasonable when it was made, 
even if it proved unwise in hindsight. See id. at 689 (``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) (``An attorney's 
objectively reasonable tactical decisions do not qualify as ineffective 
assistance.''); cf. Matter of Velasquez, 19 I&N Dec. 377, 383 (BIA 
1986) (stating that attorney's ``decision to concede deportability was 
a reasonable tactical decision'' and thus was binding). Finally, under 
the proposed rule, the Department expects 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 proposed rule would require the individual to establish that he 
or she was prejudiced by counsel's conduct, and an immigration judge or 
the BIA shall consider whether a reasonable probability exists that, 
absent counsel's ineffective assistance, the outcome of the proceedings 
would have been different.\18\ This reasonable probability standard 
well established; adopting it would provide clarity and make more 
uniform the way courts evaluate prejudice. See id. at 694 (``The 
[movant] must show that there is a reasonable probability that, but for 
counsel's unprofessional errors, the result of the proceeding would 
have been different. A reasonable probability is a probability 
sufficient to undermine confidence in the outcome.''). The proposed 
rule would provide that eligibility for relief or protection arising 
after the conclusion of proceedings will typically not affect the 
determination whether the individual was prejudiced during such 
proceedings. Cf. Snethen v. State, 308 NW2d 11, 16 (Iowa 1981) 
(``Counsel need not be a crystal gazer; it is not necessary to know 
what the law will become in the future to provide effective assistance 
of counsel.'').
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    \18\ As with the determination of ineffective assistance of 
counsel, this proposed rule would not enumerate any circumstances 
that necessarily constitute prejudice. See generally Assaad, 23 I&N 
Dec. at 562 (rejecting the argument that counsel's failure to file 
an appeal is per se prejudicial). But see 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). Rather, each case would rest on its particulars, with the 
recognition that some conduct will more typically yield prejudice, 
but that the individual filing the motion always carries the burden 
to establish that prejudice does in fact exist. Additionally, the 
rescission of an in absentia order of removal generally requires 
either a showing of exceptional circumstances or a lack of notice. 
INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C). Although prejudice would 
not be presumed for a motion to rescind an in absentia removal order 
based on ineffective assistance of counsel, the Department expects 
that in the ordinary case an alien who demonstrates ineffective 
assistance of counsel leading to the issuance of an in absentia 
order of removal would also likely demonstrate prejudice.
---------------------------------------------------------------------------

    The proposed rule would require three items to support a motion to 
reopen based on ineffective assistance of counsel. First, it would 
require an affidavit or written statement executed under penalty of 
perjury that details the

[[Page 75952]]

agreement between counsel and the individual. The affidavit or written 
statement must include the actions to be taken by counsel and the 
representations counsel did or did not make regarding such actions. 
Moreover, to ensure that the alien fully understands what he is 
alleging, the affidavit or written statement must also identify who 
drafted it, if the alien did not, and contain an acknowledgment by the 
alien that the affidavit or written statement had been read to the 
alien in a language the alien speaks and understands, and that the 
alien, by signing, affirms that he understands and agrees with the 
language of the affidavit or written statement.
    A copy of any representation agreement must be included with the 
affidavit or written statement, or the individual should explain its 
absence and provide any reasonably available evidence regarding the 
scope of the agreement and reasons for its absence. The proposed rule 
would allow the BIA or an immigration judge to excuse the requirement 
to submit an affidavit or written statement, and accompanying evidence 
regarding the representation agreement, as a matter of discretion in 
the case of a motion filed by a pro se alien.
    Second, the proposed rule would require evidence of the 
individual's notice to counsel informing him the allegations and that a 
motion to reopen based on such allegations will be filed. The 
individual must provide evidence of the date and manner in which he or 
she provided such notice, as well as counsel's response, if any. If 
there were no response, the individual must say so. The proposed rule 
would provide two exceptions to this requirement: When prior counsel is 
deceased, or when the alien exercised reasonable diligence in the 
attempt to locate prior counsel but was unable to do so.
    Third, the proposed rule would require that the alien file a 
complaint with the appropriate disciplinary authorities and with EOIR 
disciplinary counsel. For attorneys in the United States, the alien 
must file a complaint with the disciplinary authority of a State, 
possession, territory, or Commonwealth, or of the District of Columbia, 
that licensed the attorney to practice law.\19\ For accredited 
representatives as defined in 8 CFR part 1292, the individual must file 
a complaint with the EOIR disciplinary counsel pursuant to 8 CFR 
1003.104. For persons whom the individual reasonably but erroneously 
believed to be an attorney or accredited representative as defined in 8 
CFR part 1292, and who was retained for the purpose of representation 
in immigration proceedings, the individual must file a complaint with 
an appropriate federal, State, or local law enforcement agency that has 
authority to address matters involving unauthorized practice of law or 
immigration-related fraud. In all cases, the individual must file a 
complaint with EOIR disciplinary counsel. The individual must include 
with the motion to reopen a copy of the complaint(s) and any subsequent 
related correspondence, unless the counsel is deceased.\20\
---------------------------------------------------------------------------

    \19\ If an attorney is licensed in more than one jurisdiction, a 
complaint need only be filed with the disciplinary authority of one 
jurisdiction.
    \20\ Although Lozada indicated that an alien could file a 
statement as to why no complaint was filed, the Department sees no 
reason why an alien alleging ineffective assistance of counsel would 
not file a complaint, unless counsel was deceased. Indeed, because 
the alleged ineffective assistance necessarily occurred during an 
EOIR proceeding, the Department can think of no logical reason why a 
complaint would not be filed with, at the least, the EOIR 
disciplinary counsel.
---------------------------------------------------------------------------

    In short, the proposed rule codifies the requirements of Lozada and 
reaffirms particular aspects of those requirements that have been 
disregarded to varying degrees by federal circuit courts. It provides a 
uniform standard for assessing prejudice and clear guidance that will 
both aid and protect respondents, practitioners, and adjudicators.\21\
---------------------------------------------------------------------------

    \21\ The proposed rule would not apply to motions to reopen 
proceedings 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 DHS or another 
government agency. Cf. 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). One reason for this limitation is 
that the Board and immigration judges are 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. At the same time, nothing in the proposed rule 
prohibits a respondent from filing a motion requesting that the 
Board reissue a decision in a case in which the respondent's counsel 
missed a deadline for filing a petition for review.
---------------------------------------------------------------------------

2. The Current Proposed Rule's Enhancements to the Previous Proposed 
Rule
    As previously stated, the Department withdraws its previous 
proposed rule regarding motions to reopen based upon ineffective 
assistance of counsel at 81 FR at 49556 in order to address broader 
issues regarding motions to reopen in a more comprehensive manner and 
to consolidate multiple other proposed rulemakings related to such 
motions. The new proposed rule nevertheless retains, either in whole or 
in part, many of the provisions from the previous proposed rule, 
including the standard for adjudication in 8 CFR 1003.48(h)(1) 
(proposed), the standard for evaluating counsel's ineffectiveness in 8 
CFR 1003.48(h)(3) (proposed), the reasonable probability standard for 
prejudice in 8 CFR 1003.48(h)(4) (proposed), and the required items to 
support the motion in 8 CFR 1003.48(h)(5) (proposed).
    The current proposed rule also enhances the previous proposed rule 
in several ways. First, it clarifies the regulation's applicability to 
proceedings before the BIA and the immigration courts by renaming 
subpart C. The previous proposed rule retained subpart C's name, 
``Immigration Court--Rules of Procedure,'' although the rule would have 
applied to proceedings at the BIA and the immigration courts.
    Second, the current proposed rule expands the previous proposed 
rule's definition of ``counsel.'' The previous proposed rule did not 
expressly include the conduct of attorneys retained without 
remuneration, but the proposed rule does. See 8 CFR 1003.48(h)(1)-(4) 
(proposed). Thus, it expands the rule's afforded protections to a 
broader set of individuals, though it would not extend beyond EOIR 
proceedings.
    Third, regarding the requirement to submit the representation 
agreement and an affidavit or written statement detailing the agreement 
between counsel and the individual, the proposed rule provides that the 
BIA or immigration judge may, in their discretion, grant an exception 
if the person is not represented by counsel, explains the absence of 
documentation, and presents other independent evidence to support the 
motion. The BIA or immigration judge may not grant exceptions for the 
affidavit or written statement if the person has retained counsel, but, 
in the absence of a representation agreement, the person may explain 
its absence and provide reasonably available supporting evidence. 
Regarding the notice to counsel, the proposed rule provides specific 
exceptions if counsel is deceased or if the person tried to locate 
previous counsel with reasonable diligence but was unsuccessful.
    Fourth, the earlier proposed rule would have required the 
individual filing the motion to reopen to notify appropriate 
disciplinary authorities, as listed in the regulation. This proposed

[[Page 75953]]

rule maintains that notification requirement in its entirety, but it 
adds a second notification requirement--to notify EOIR disciplinary 
counsel in every case in accordance with the current regulation at 8 
CFR 1003.104. This ensures that all claims of ineffective assistance 
are reviewed for potential disciplinary action. The EOIR Disciplinary 
Program helps the Department ensure fairness and integrity in 
immigration proceedings. Through the program, EOIR regulates the 
professional conduct of immigration attorneys and representatives to 
protect the public, preserve the integrity of immigration proceedings 
and adjudications, and maintain high professional standards for 
practitioners. Consequently, it is crucial that the EOIR Disciplinary 
Counsel be aware of claims of ineffective assistance by practitioners 
so that it may take appropriate action.
    By clarifying and expanding the application of these regulations, 
clarifying exceptions that promote consistency, uniformity, and 
finality in immigration proceedings, and ensuring that claims of 
ineffective assistance are reviewed for potential disciplinary action, 
this proposed rule builds upon the earlier proposed rule. Accordingly, 
and for the reasons discussed above, the Department withdraws its 
previous proposed rule at 81 FR at 49556 and proposes this rule to 
standardize motions to reopen immigration proceedings based upon a 
claim of ineffective assistance of counsel.

F. Motions To Reopen To Submit or Update an Application for Asylum or 
Protection

    Under current regulations, an alien who files a motion to reopen in 
order to submit an application for relief must submit the appropriate 
application and the application's supporting documentation together 
with the motion. 8 CFR 1003.2(c)(1) (``A motion to reopen proceedings 
for the purpose of submitting an application for relief must be 
accompanied by the appropriate application for relief and all 
supporting documentation.''); 8 CFR 1003.23(b)(3) (same). See also, 
e.g., Gen Lin v. Att'y Gen., 700 F.3d 683, 689 (3d Cir. 2012) 
(concluding that the failure to include a new asylum application with 
the motion to reopen was a sufficient basis to deny a petition for 
review); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1064 (9th Cir. 2008) 
(concluding that the BIA ``did not abuse its discretion in determining 
that Romero-Ruiz did not satisfy the procedural requirements'' for 
filing a motion to reopen because, among other things, he failed to 
file an accompanying application for cancellation of removal); Waggoner 
v. Gonzales, 488 F.3d 632, 639 (5th Cir. 2007) (holding that the BIA 
did not abuse its discretion in denying a motion to reopen based on 
changed country conditions when the alien failed to include her 
application for asylum and supporting documentation).
    The proposed rule would further clarify that, if the immigration 
court or the Board grants the motion, the immigration court or the 
Board would further accept the application submitted with the motion to 
reopen. For example, an alien who submits a motion to reopen based on 
changed country conditions is required to submit the accompanying 
asylum application. 8 CFR 1003.2(c)(1), 1003.23(b)(3). Under the 
proposed rule, that new asylum application would be considered filed as 
of the date the immigration court grants the motion to reopen, and the 
alien would not be able to later avoid filing the application.
    This change would foreclose the use of changed country conditions, 
which relate to a claim for asylum or withholding of removal, for the 
purpose of gaining reopening to pursue other claims that could not 
themselves have been a basis for reopening due to time- or number-bars 
ordinarily applicable to motions to reopen. In such circumstances, the 
penalty for filing a false or frivolous asylum application would 
continue to apply. See INA 208(d)(6), 8 U.S.C. 1158(d)(6); 8 CFR 
1208.20. So too would civil monetary penalties for document fraud. See 
INA 274C(a), 8 U.S.C. 1324c(a).

G. Limiting the Scope of Reopened Proceedings to the Issues Upon Which 
Reopening Was Granted

    Under current practice, a grant to reopen a case effectively 
reopens the case for any purpose, regardless of the motion's 
articulated basis. For example, a respondent may file a motion to 
reopen based on changed country conditions that may affect the 
respondent's eligibility for asylum. Under section 240(c)(7)(C)(ii) of 
the Act, 8 U.S.C. 1229a(c)(7)(C)(ii), changed country conditions excuse 
untimely filing of a motion to reopen, while changed personal 
circumstances do not. A respondent seeking relief based on changed 
personal circumstances may therefore move to reopen based on changed 
country conditions, and then, if the motion is granted, withdraw or 
fail to submit the asylum application based on changed country 
conditions, and, instead, pursue an alternative form of relief, such as 
adjustment of status, based on changed personal circumstances. 
Essentially, respondents commonly allege specific grounds that warrant 
reopening a case but then use the reopened proceedings as an 
opportunity to apply for other unrelated forms of relief from removal 
that are otherwise unavailable.
    This practice undermines the Department's commitment to efficient 
and fair case processing because respondents who engage in such 
practices receive additional opportunities to raise unrelated issues or 
apply for relief, thereby circumventing current law and regulations 
providing time-based deadlines and prolonging their cases. Use of an 
asylum claim to reopen a case for other claims treats unfairly those 
aliens who have the same non-asylum claims barred by the time and 
number limitations but who lack an asylum claim with which to shoehorn 
their otherwise barred claims into reopened proceedings. To curb this 
practice, the Department proposes to revise the scope of reopened 
proceedings at 8 CFR 1003.48(d)(3). The proposed rule would limit the 
reopened proceeding to consider only those issues or issues upon which 
reopening or reconsideration was granted, as well as matters directly 
related, except as otherwise provided by statute, regulation, or 
judicial or administrative precedent. Accordingly, the respondent would 
be required to establish in the motion to reopen or reconsider each 
basis upon which the respondent intends to apply for relief.

H. Standards for Evaluating Requests for Discretionary Stays

    The current regulations regarding motions to reopen and motions to 
reconsider provide only that an immigration judge, the BIA, or an 
authorized DHS officer may grant a stay of removal. See 8 CFR 
1003.2(f), 1003.23(b)(1)(v). The current regulations lack detailed 
guidance pertaining to the filing and adjudication of such requests, 
and neither the BIA nor the Attorney General has published a decision 
addressing the appropriate standards for stays of removal.
    The proposed regulation would provide a list of factors that the 
immigration judge or BIA must consider when determining whether to 
grant an alien's requested stay of removal as a matter of discretion: 
The likelihood of success on the merits; the likelihood of irreparable 
injury; harm that the stay may cause to other parties interested in the 
proceeding; and the public interest. These factors are well established 
in existing law and have been set out in decisions regarding the 
consideration of discretionary stays. See, e.g., Nken v.

[[Page 75954]]

Holder, 556 U.S. 418, 425-26 (2009); Sofinet v. INS, 188 F.3d 703, 706 
(7th Cir. 1999); Ignacio v. INS, 955 F.2d 295, 299 (5th Cir. 1992). The 
inclusion of these provisions in the regulations will promote 
consistency in the adjudication of discretionary stay requests.
    The proposed regulation would provide specific instructions 
regarding the requirements for submitting a motion for a discretionary 
stay in conjunction with a motion to reopen or reconsider. These 
provisions in the proposed regulation act as additional tools for case 
management, the importance of which the Attorney General emphasized in 
Matter of L-A-B-R-, 27 I&N Dec. 405, 406 (A.G. 2018) (``Efficiency is . 
. . a common theme in the immigration courts' procedural regulations, 
which promote the `timely' and `expeditious' resolution of removal 
proceedings.''). One such provision would codify in the regulations the 
current EOIR practice that an immigration judge and the BIA may not 
grant a motion for a stay of removal if the alien has not also filed an 
underlying motion to reopen or reconsider. See Immigration Court 
Practice Manual, ch. 8.3; BIA Practice Manual, ch. 6.3.
    Another provision would prohibit an immigration judge or the BIA 
from granting a request for a discretionary stay unless the motion is 
accompanied by proof that the individual initially filed for a stay of 
removal with DHS, the agency ultimately responsible for carrying out an 
order of removal, deportation, or exclusion, pursuant to 8 CFR 241.6; 
DHS must have subsequently denied or failed to respond to the request 
within five business days. Requiring an individual to first file a stay 
request with DHS, and then subsequently be denied or receive no 
response in order to file with EOIR, is a commonsense procedural 
mechanism that ensures an alien multiple opportunities to have a stay 
request considered. It also promotes efficiency, as DHS, the agency 
seeking to remove the alien, is in the best position to evaluate a stay 
request in the first instance. DHS maintains the requisite personnel, 
expertise, and necessary information to handle such requests 
expeditiously because DHS is both the custodian of a removable alien 
and ultimately the executor of an order of removal. Further, a 
requirement that stays should be directed to DHS initially will 
encourage the filing of stay requests at the earliest possible 
opportunity and reduce the likelihood of dilatory gamesmanship in 
filing for a stay at the last moment. Consequently, stay requests are 
most appropriately directed to DHS in the first instance. If that 
request is not approved, however, an individual may still obtain a de 
novo determination from EOIR on a stay request, provided that the 
individual complies with other regulatory requirements.
    The proposed regulation would prohibit an immigration judge or the 
BIA from granting a request unless the opposing party is notified and 
has an opportunity to respond and either affirmatively consents, joins 
the motion, or fails to respond to the request in three business days 
from the date of filing the request. Both parties in immigration 
proceedings are entitled to fair process, and notice to the opposing 
party is a tenet of fair process. Accordingly, to ensure fair 
consideration of all requests and consistency with how it addresses 
other motions, the Department proposes to require notice and an 
opportunity to respond before it will grant any motion for a 
discretionary stay. For genuinely exigent situations, nothing in this 
proposed rule prevents a party for moving for expedited treatment of 
its stay request or for the parties to file a joint request for a stay.
    Ultimately, the proposed rule would emphasize that a discretionary 
stay is an extraordinary remedy. See Nken, 556 U.S. at 437 (Kennedy, 
J., concurring) (``A stay of removal is an extraordinary remedy that 
should not be granted in the ordinary case, much less awarded as of 
right.''). The Department believes that the implementation of 
discretionary stay procedures will ensure that stays are not abused or 
used to circumvent the statutory and regulatory structure for 
proceedings before EOIR. Further, these changes would ensure that 
EOIR's regulations are generally aligned with existing precedents.

IV. 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 would not regulate ``small 
entities'' as that term is defined in 5 U.S.C. 601(6). Only 
individuals, and not entities, are eligible to file motions to reopen 
or to reconsider or to seek a stay of removal.

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. Congressional Review Act

    This proposed rule is not a major rule as defined by section 804 of 
the Congressional Review Act, 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 Order 12866 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). The 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget (``OMB'') has determined that this proposed rule 
is not a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866. It will neither result in an annual effect on 
the economy greater than $100 million nor adversely affect the economy 
or sectors of the economy. It does not pertain to entitlements, grants, 
user fees, or loan programs, nor does it raise novel legal or policy 
issues. It does not create inconsistencies or interfere with actions 
taken by other agencies. Accordingly, this rule is not a significant 
regulatory action subject to review by OMB pursuant to Executive Order 
12866.
    Executive Order 13563 directs 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 certifies that this regulation 
has been drafted in accordance with the principles of Executive Order 
13563.

[[Page 75955]]

    The proposed rule would help ensure the fairness and integrity of 
immigration proceedings by setting out requirements for reopening 
proceedings, allowing for reopening where an individual was genuinely 
subjected to ineffective assistance of counsel and suffered prejudice 
as a result. It would also establish requirements for requests for 
stays of removal. 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 adjudicatory standards used in those proceedings.\22\ At most, 
the Department notes that the proposed rule may result in fewer motions 
to reopen being granted; however, because motions to reopen are 
disfavored already as a matter of law, because motions to reopen are 
inherently fact-specific, because there may be multiple bases for 
denying a motion to reopen, and because the Department does not track 
individual bases for denying motions to reopen, it cannot quantify 
precisely the potential decrease.
---------------------------------------------------------------------------

    \22\ The Department acknowledges that the proposed rule would 
require two additional statements for motions to reopen for 
potential fugitive aliens, one additional statement for a motion to 
reopen filed by an alien subject to a reinstated removal order, and 
the filing of a complaint with EOIR disciplinary counsel for motions 
to reopen based on claims of ineffective assistance of counsel. To 
the extent these additional statements or actions, which largely 
mirror existing requirements, could be said to constitute burdens on 
the parties, such ``burdens'' are de minimis. Moreover, they are 
easily outweighed by the benefits to the Government and the improved 
functioning of the overall immigration system obtained through 
better identification of fugitive aliens, better identification of 
aliens statutorily ineligible to have a motion to reopen granted due 
to a reinstated removal order, and better identification of 
attorneys who have engaged in appropriate practices or provided 
ineffective assistance warranting discipline.
---------------------------------------------------------------------------

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 1001

    Administrative practice and procedure, Immigration.

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, for the reasons set forth in the preamble, and by the 
authority vested in the Director, Executive Office for Immigration 
Review, by the Attorney General Order Number 4910-2020, the Department 
proposes to amend 8 CFR parts 1001 and 1003 as follows:

Title 8 of the Code of Federal Regulations

PART 1001--DEFINITIONS

0
1. The authority citation for part 1001 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 
116 Stat. 2135; Title VII of Pub. L. 110-229.

0
2. Section 1001.1 is amended by adding paragraphs (cc) and (dd) to read 
as follows:


Sec.  1001.1  Definitions.

* * * * *
    (cc) The terms depart or departure, unless otherwise specified, 
refer to the physical departure of an alien from the United States to a 
foreign location. A departure shall not include the physical removal, 
deportation, or exclusion of an alien from the United States under the 
auspices or direction of DHS or a return of the alien to a contiguous 
foreign territory by DHS in accordance with section 235(b)(2)(C) of the 
Act, but shall include any other departure from the United States, 
including a departure outside of the direction of DHS by an alien 
subject to an order of removal, deportation, or exclusion and including 
a departure following the approval of an application for advance 
parole.
    (dd) Unless otherwise specified, the terms terminate and 
termination refer to either termination or dismissal of proceedings 
under 8 CFR 1239.2(f), or termination or dismissal under any other 
provision of law.

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
3. The authority citation 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
4. Section Sec.  1003.2 is amended by:
0
a. Revising paragraphs (b)(2) and (c)(2);
0
b. Adding paragraph (c)(3)(v); and
0
c. Revising paragraphs (d) and (e).
    The additions and revisions read as follows:


Sec.  1003.2  Reopening or reconsideration before the Board of 
Immigration Appeals.

* * * * *
    (b) * * *
    (2) A motion to reconsider a decision must be filed with the Board 
within 30 days after the mailing of the Board decision. A party may 
file only one motion to reconsider any given decision and may not seek 
reconsideration of a decision denying a previous motion to reconsider. 
In removal proceedings pursuant to section 240 of the Act, an alien may 
file only one motion to reconsider a decision that the alien is 
removable from the United States.
* * * * *
    (c) * * *
    (2) Except as provided in paragraph (c)(3) of this section, a party 
may file only one motion to reopen deportation or exclusion proceedings 
(whether before the Board or the immigration judge) and that motion 
must be filed no later than 90 days after the date on which the final 
administrative decision was rendered in the proceeding sought to be 
reopened. Except as provided in paragraph (c)(3) of this section, an 
alien may file only one motion to reopen removal proceedings (whether 
before the Board or the immigration judge) and that motion must be 
filed no later than 90 days after the date on which the final 
administrative decision was rendered in the proceeding sought to be 
reopened.
    (3) * * *
    (v) If the basis of the motion is to apply for asylum under section 
208 of the Act or withholding of removal under section 241(b)(3) of the 
Act or withholding of removal under the Convention Against Torture, and 
is

[[Page 75956]]

based on changed country conditions arising in the country of 
nationality or the country to which removal has been ordered, if such 
evidence is material and was not available and could not have been 
discovered or presented at the previous proceeding. The filing of a 
motion to reopen under this section shall not automatically stay the 
removal of the alien. However, the alien may request a stay and, if 
granted by the Board, the alien shall not be removed pending 
disposition of the motion by the Board. If the original asylum 
application was denied based upon a finding that it was frivolous, then 
the alien is ineligible to file either a motion to reopen or 
reconsider, or for a stay of removal.
    (d) Departure. Any departure by an alien from the United States 
while a motion to reopen or motion to reconsider is pending shall 
constitute a withdrawal of the motion, and the motion shall be denied.
    (e) Judicial proceedings. Motions to reopen or reconsider shall 
state whether the validity of the exclusion, deportation, or removal 
order has been or is the subject of any judicial proceeding and, if so, 
the nature and date thereof, the court in which such proceeding took 
place or is pending, and its result or status.
* * * * *
0
5. Section Sec.  1003.23 is amended by revising the introductory text 
of paragraph (b)(1); and paragraph (b)(1)(I) to read as follows


Sec.  1003.23  Reopening or reconsideration before the immigration 
court.

* * * * *
    (b) * * * (1) In general. 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. 
Subject to the exceptions in this paragraph and paragraph (b)(4), a 
party may file only one motion to reconsider and one motion to reopen 
proceedings. A motion to reconsider must be filed within 30 days of the 
date of entry of a final administrative order of removal, deportation, 
or exclusion. A motion to reopen must be filed within 90 days of the 
date of entry of a final administrative order of removal, deportation, 
or exclusion. Any departure from the United States while a motion to 
reopen or reconsider is pending shall constitute a withdrawal of such 
motion, and the motion shall be denied. The time and numerical 
limitations set forth in this paragraph do not apply to motions by DHS 
in removal proceedings pursuant to section 240 of the Act. Nor shall 
such limitations apply to motions by DHS in exclusion or deportation 
proceedings, when the basis of the motion is fraud in the original 
proceeding or a crime that would support termination of asylum in 
accordance with Sec.  1208.22(e) of this chapter.
    (i) Form and contents of the motion. The motion shall be in writing 
and signed by the affected party or the attorney or representative of 
record, if any. The motion and any submission made in conjunction with 
it must be in English or accompanied by a certified English 
translation. Motions to reopen or reconsider shall state whether the 
validity of the exclusion, deportation, or removal order has been or is 
the subject of any judicial proceeding and, if so, the nature and date 
thereof, the court in which such proceeding took place or is pending, 
and its result or status.
* * * * *

Subpart C--Rules of Procedure

0
6. Revise the heading of subpart C to read as set forth above:
0
7. Add Sec.  1003.48 to subpart C to read as follows:


Sec.  1003.48  Motions to reopen or reconsider; stays.

    (a) In general. The provisions of this section apply to all motions 
to reopen or reconsider filed with either an immigration court or the 
Board on or after [the effective date of this section]. The failure of 
a motion to reopen or reconsider to comply with any provision of this 
section or any other applicable requirement may result in the denial of 
that motion.
    (b) Allegations of fact. (1) Section 1003.1(d)(3)(i) does not apply 
to the Board's consideration of the factual allegations in any 
affidavit or written statement offered to support a motion to reopen or 
reconsider, except to the extent that the facts had previously been 
determined by an immigration judge.
    (i) Allegations of fact contained in a motion to reopen or motion 
to reconsider are not evidence and shall not be treated as evidence. 
Allegations of fact contained in a motion to reopen or motion to 
reconsider that is filed on behalf of the moving party by counsel or an 
accredited representative shall not be relied on as evidence by either 
the Board or an immigration judge. Such allegations made by counsel or 
an accredited representative shall not be accepted as true for purposes 
of adjudicating the motion.
    (ii) Alleged conclusions of law contained in a motion to reopen or 
motion to reconsider are not evidence and shall not be treated as 
evidence nor relied on as evidence by either the Board or an 
immigration judge. Neither the Board nor an immigration judge shall 
accept alleged conclusions of law contained in a motion to reopen or 
motion reconsider as true, but shall conduct its own legal analysis in 
adjudicating the motion.
    (iii) There is no presumption that factual allegations offered in 
support of a motion to reopen or motion to reconsider are true.
    (2) Neither the Board nor an immigration judge shall accept factual 
allegations as true in support of a motion to reopen or motion to 
reconsider if:
    (i) Those allegations are contradicted by other evidence of record;
    (ii) Those allegations are contradicted by evidence described in 
Sec.  1208.12(a);
    (iii) Those allegations are conclusory, uncorroborated, or 
unsupported by other evidence in the record or are otherwise based 
principally on hearsay;
    (iv) Those allegations are made solely by the respondent regarding 
individuals who are not presently within the United States; or
    (v) Those allegations are otherwise inherently unbelievable or 
unreliable.
    (c) Fugitive aliens. In any case in which an exclusion, 
deportation, or removal order is in effect, any motion to reopen or 
reconsider such order shall include a statement by or on behalf of the 
moving party declaring whether the subject of the order has been 
notified to surrender to DHS for exclusion, deportation, or removal 
and, if so ordered, whether the subject has complied with the 
notification to surrender. The alien's failure to comply with a 
notification to surrender may result in the denial of the alien's 
motion.
    (d) Criminal aliens and aliens subject to a reinstated removal 
order. Any motion to reopen or reconsider filed on behalf of an alien 
who has an exclusion, deportation, or removal order in effect shall 
include a statement by or on behalf of the alien declaring whether the 
alien is also the subject of any conviction after the date of the final 
order or any pending criminal proceeding under the Act, and, if so, the 
current status of that conviction or proceeding. Any motion to reopen 
or reconsider filed on behalf of an alien who has an exclusion, 
deportation, or removal order in effect shall include a statement by or 
on behalf of the alien declaring whether that removal order has been 
reinstated pursuant to section 241(a)(5) of the Act.
    (e) Underlying eligibility. (1) Neither an immigration judge nor 
the Board

[[Page 75957]]

shall grant a motion to reopen or reconsider based on an application 
for relief from removal over which the immigration judge or Board lacks 
authority unless that application for relief has been granted by 
another agency, the granted application provides complete relief from 
removal, the motion is not otherwise barred by applicable law, and the 
motion otherwise warrants being granted under applicable law.
    (i) For purposes of this paragraph (e)(1), a grant of an 
application for relief does not include interim relief, prima facie 
determinations, parole, deferred action, bona fide determinations or 
any similar dispositions short of final approval of the application for 
relief.
    (ii) Nothing in this section shall preclude an alien from applying 
for an administrative stay of removal from DHS pursuant to 8 CFR 241.6 
while an application over which the immigration judge or the Board 
lacks authority is pending with DHS.
    (2) Neither an immigration judge nor the Board shall grant a motion 
to reopen or reconsider based on an application for relief or 
protection over which the immigration judge or Board does have 
authority, but for which the alien has not established prima facie 
eligibility for that relief or protection. For purposes of this 
section, for an application for relief that requires an immediately-
available immigrant visa, an alien must establish, in addition to any 
other eligibility requirements, (i) that he has an approved, relevant 
immigrant visa and (ii) that the immigrant visa is in a category not 
subject to a numerical limitation or has a priority date earlier than 
the relevant ``Date for Filing Applications'' listed in the U.S. 
Department of State Visa Bulletin for the month in which the motion is 
filed.
    (3) Except as otherwise provided by statute or regulation, or a 
binding judicial or administrative precedent, further proceedings in a 
case that is reopened or reconsidered pursuant to a respondent's motion 
described in paragraph (e)(1) or (e)(2) of this section shall be 
limited to the issues upon which reopening or reconsideration was 
sought and granted, and issues directly related.
    (4) Nothing in this paragraph (e) shall preclude an immigration 
judge or the Board from granting a motion to reopen or reconsider that 
is jointly filed if the motion otherwise warrants being granted.
    (f) Joint or unopposed motions. A motion to reopen or reconsider to 
which a response is not timely filed may be deemed unopposed, provided 
that neither an unopposed motion nor a joint motion may be 
automatically granted without any further consideration. An immigration 
judge or the Board retains discretion to deny a joint motion or an 
unopposed motion if warranted.
    (g) Termination. A motion to reopen or reconsider and to terminate 
proceedings may be granted only if it satisfies the requirements both 
for reopening or reconsideration and for termination.
    (h) Motions. based on changed country conditions. When filing a 
motion to reopen to apply for asylum, withholding of removal under the 
Act, or protection under the Convention Against Torture, based on 
changed country conditions arising in the country of nationality or the 
country to which removal has been ordered, the alien filing the motion 
does not need to file a copy of his or her record of proceedings or 
administrative file (A-file) with the motion.
    (i) Ineffective assistance of counsel.-- (1) Standard for 
adjudication. The Board or an immigration judge shall adjudicate a 
motion to reopen based upon a claim of ineffective assistance of 
counsel in accordance with applicable law. The alien filing the motion 
must demonstrate that counsel's conduct was ineffective and prejudiced 
the individual. Unless otherwise expressly provided in this paragraph, 
the Board or an immigration judge shall not waive or excuse any 
requirement for a motion to reopen based upon a claim of ineffective 
assistance of counsel.
    (2) Counsel. 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 with or without remuneration, to represent him or 
her in the proceedings before the BIA or an immigration judge and who 
did represent him or her in those proceedings.
    (3) Standard for evaluating counsel's ineffectiveness. A counsel's 
conduct constitutes ineffective assistance of counsel if the conduct 
was objectively unreasonable, based on the facts of the particular 
case, viewed at the time of the conduct.
    (4) Standard for evaluating prejudice. In evaluating whether an 
individual has established that he or she was prejudiced by counsel's 
conduct, the BIA 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 or protection 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.
    (5) Form, contents, and procedure for filing a motion to reopen 
based upon a claim of ineffective assistance of counsel. A motion to 
reopen based upon a claim of ineffective assistance of counsel shall 
include the following items to support the claim of ineffective 
assistance of counsel and that the alien suffered prejudice as a 
result:
    (i) Affidavit or written statement executed under penalty of 
perjury. (A) The alien filing the motion must, in every case, submit an 
affidavit by the alien or a written statement executed by the alien 
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. The 
affidavit or written statement must also identify who drafted it, if 
the alien did not, and contain an acknowledgment by the alien that the 
affidavit or written statement had been read to the alien in a language 
the alien speaks and understands and that the alien, by signing, 
affirms that he or she understands and agrees with the language of the 
affidavit or written statement.
    (B) 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.
    (C) The Board or an immigration judge shall not waive the 
requirement to submit an affidavit or written statement executed under 
penalty of perjury under paragraph (i)(5)(i)(A) or the representation 
agreement or the explanation of the absence of the agreement and 
evidence of the scope of the agreement under paragraph (i)(5)(i)(B), 
except, in an exercise of discretion committed solely to the agency, 
the requirement may be excused in the case of an alien who filed the 
motion pro se and without any assistance from counsel and whose motion 
is accompanied by other independent evidence indicating the

[[Page 75958]]

nature, scope, and alleged deficiency of counsel's representation.
    (ii) Notice to counsel. The alien 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 excuse failure to provide the 
required notice only if the alien establishes that the prior counsel is 
deceased or that the alien has tried with reasonable diligence to 
locate the prior counsel but has been unable to do so.
    (iii) Complaint filed with the appropriate disciplinary authorities 
and with EOIR. (A) The alien 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. In 
all cases the alien must also file a complaint with EOIR disciplinary 
counsel in accordance with Sec.  1003.104. 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 with the appropriate disciplinary 
authorities and with EOIR. The appropriate disciplinary authorities are 
as follows:
    (1) With respect to attorneys in the United States: The 
disciplinary 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. If an attorney is licensed 
in more than one jurisdiction, a complaint need only be filed with one 
jurisdiction.
    (2) With respect to accredited representatives: The EOIR 
disciplinary counsel pursuant to Sec.  1003.104(a).
    (3) With respect to a person described in 8 CFR 1003.48(i)(2)(ii): 
The appropriate federal, State, or local law enforcement agency with 
authority over matters relating to the unauthorized practice of law or 
immigration-related fraud.
    (B) The Board or an immigration judge shall not waive the 
requirement to file a complaint with the appropriate disciplinary 
authorities and with EOIR unless the counsel is deceased.
    (6) Prejudice. The alien filing the motion shall establish that he 
or she was prejudiced by counsel's conduct. The standard for prejudice 
is set forth in paragraph (i)(4) of this section. The Board or an 
immigration judge shall not waive the requirement to establish 
prejudice. Allegations of fact establishing the background and nature 
of prejudice by counsel's conduct shall be contained in the affidavit 
or written statement submitted under penalty of perjury.
    (j) Address. Neither an immigration judge nor the Board shall grant 
a motion to reopen or reconsider filed by an alien unless the alien has 
provided the information in Sec.  1003.20(c) where the alien may be 
reached for further notification or hearing.
    (k) Discretionary stay of removal. (1) A discretionary stay of 
removal is an extraordinary remedy and is not a matter of right. 
Neither the Board nor an immigration judge shall grant a discretionary 
stay of removal except as provided in this section.
    (i) An alien may submit a motion for a discretionary stay of 
removal at any time after an alien becomes subject to a final order of 
removal, provided that such a motion may be filed only while a motion 
to reopen or reconsider is pending before an immigration judge or the 
Board or in conjunction with the filing of a motion to reopen or 
reconsider before an immigration judge or the Board.
    (ii) Neither the Board nor an immigration judge shall grant a 
motion for a discretionary stay of removal without the filing of an 
underlying motion to reopen or reconsider.
    (iii) Neither the Board nor an immigration judge shall grant a 
motion for a discretionary stay of removal unless the underlying motion 
to reopen or reconsider is prima facie grantable.
    (iv) Neither the Board nor an immigration judge shall grant a 
motion for a discretionary stay of removal unless the alien exercised 
reasonable diligence in seeking a stay and filing a motion to reopen or 
reconsider after the circumstances underlying the motion arose
    (v) Neither the Board nor an immigration judge shall grant a motion 
for a discretionary stay of removal unless the alien has first applied 
for a stay of removal with DHS under 8 CFR 241.6 and either (A) that 
application has been denied or (B) the alien has not received a 
decision on the application within five business days after it was 
filed.
    (vi)(A) Neither the Board nor an immigration judge shall grant a 
motion for a discretionary stay of removal unless the opposing party:
    (1) Has been notified and joins or affirmatively consents to the 
motion or
    (2) Has been given three business days from the date of filing to 
respond to the motion.
    (B) Notwithstanding the provisions of Sec.  1003.32, service of a 
motion for a discretionary stay of removal on an opposing party shall 
be simultaneous to the filing of the motion and shall be accomplished 
by the same method by which the motion is filed with an immigration 
court or the Board. A certificate of service shall accompany the filing 
of the motion certifying that service was effectuated on the opposing 
party in an identical manner to the filing of the motion. Neither the 
Board nor an immigration judge shall excuse this service requirement, 
and any motion for a discretionary stay of removal failing to conform 
to this service requirement shall be summarily denied.
    (2) An alien requesting a discretionary stay of removal before the 
immigration court or the Board must submit a motion in writing stating 
the complete case history and all relevant facts. The motion must 
include a copy of the stay application filed with DHS under 8 CFR 241.6 
and the decision on that application, if any. The motion must also 
include a copy of the order of removal that the alien seeks to have 
stayed, if available, or a description of the ruling and reasoning, as 
articulated by the immigration judge or the BIA. If facts are in 
dispute, the alien must provide appropriate evidence.
    (3)(i) Subject to the other provisions of this section, the Board 
or an immigration judge, in the exercise of discretion, may grant a 
stay of removal if consideration of all of the following factors 
supports granting the stay:
    (A) Whether the alien stay applicant has made a strong showing that 
he or she is likely to succeed on the merits of the underlying motion 
to reopen or reconsiderincluding the applicability of any time or 
numbers bars;
    (B) Whether the alien stay applicant will be irreparably injured 
absent a stay;
    (C) Whether issuance of the stay will substantially injure the 
other parties interested in the proceeding; and
    (D) Where the public interest lies.
    (ii) For purposes of paragraph (k)(3)(i) of this section, neither 
an immigration judge nor the Board shall presume that

[[Page 75959]]

the balance of factors weighs in favor of granting a discretionary 
stay.

James R. McHenry III,
Director, Executive Office for Immigration Review, Department of 
Justice.
[FR Doc. 2020-25912 Filed 11-25-20; 8:45 am]
BILLING CODE 4410-30-P