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The Department of Justice (Department) is planning to amend the regulations of the Executive Office for Immigration Review (EOIR) by establishing procedures for the filing and adjudication of motions to reopen removal, deportation, and exclusion proceedings based upon a claim of ineffective assistance of counsel. This proposed rule is in response to Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), in which the Attorney General directed EOIR to develop such regulations. The Department is also planning to propose to amend the EOIR regulations to provide that ineffective assistance of counsel may constitute extraordinary circumstances that may excuse the failure to file an asylum application within one year after the date of arrival in the United States.

Statement of Need:

This regulation is necessary to comply with Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), in which the Attorney General directed EOIR to develop regulations governing claims of ineffective assistance of counsel in proceedings before the immigration judges and the Board of Immigration Appeals. The purpose of this proposed rule is to establish uniform procedural and substantive requirements for the filing of motions to reopen based upon a claim of ineffective assistance of counsel and to provide a uniform standard for adjudicating such motions.

Summary of the Legal Basis:

The summary of the legal basis for the authority for this regulation is set forth in the above abstract.

Alternatives:

The Department will consider any public comments it may receive regarding achievable alternatives that will still accomplish the goal of setting forth a framework for claims of ineffective assistance of counsel that supports the integrity of immigration proceedings.

Anticipated Costs and Benefits:

The Department’s preliminary analysis indicates that the proposed rule would not be economically significant, that is, that the rule will not have an annual effect on the economy of $100 million, or adversely affect in a material way the economy, a sector of the economy, the environment, public health or safety or State, local or tribal governments or communities.

Risks:

Without the proposed changes to the Department’s regulations, the Department will not have complied with the Attorney General’s directive in Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) and the procedural and substantive requirements for filing - and the standards for adjudicating - motions to reopen based upon a claim of ineffective assistance of counsel will lack uniformity.