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DOJ/EOIR RIN: 1125-AA68 Publication ID: Fall 2016 
Title: Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel 
Abstract:

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.

 
Agency: Department of Justice(DOJ)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: uncollected 
CFR Citation: 8 CFR 1003    8 CFR 1208   
Legal 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, 1252, 1254a, 1255, 1282, 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    sec 203 of Pub. L. 105-100, 111 Stat 2196-200    sec 1506 and 1510 of Pub. L. 106-386, 114 Stat 1527-29, 1531-32    sec 1505 of Pub. L. 106-554, 114 Stat 2763A-326-328    title VII of Pub. L. 110-229   
Legal Deadline:  None

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.

Timetable:
Action Date FR Cite
NPRM  07/28/2016  81 FR 49556   
NPRM Comment Period End  09/26/2016 
Final Action  05/00/2017 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: www.regulations.gov   Public Comment URL: www.regulations.gov  
RIN Data Printed in the FR: No 
Agency Contact:
Jean King
General Counsel
Department of Justice
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2600,
Falls Church, VA 22041
Phone:703 305-0470