Original Date Announced

EOIR issues a proposed rule which makes several substantial changes to the rules for motions to reopen and motions to reconsider. Among the many changes this rule proposes:

• Motions filed after a respondent has been removed or has departed the United States may be adjudicated.
• Motions filed before a respondent departs involuntarily are not subject to the departure bar and may be adjudicated.
• Motions filed before a respondent departs voluntarily are subject to the departure bar and are deemed withdrawn.
• Motions must state whether or not the respondent is under a final order of removal and, if the respondent is, indicate whether the respondent complied with that order. Non-compliance will be considered a very serious adverse factor in the adjudication of that motion. Also, motions must disclose if a respondent is subject to a reinstated removal order.
• Motions based on an application for relief that the court lacks the authority to grant must include proof that the relief has been granted. (In other words, an application for an immigration benefit pending before USCIS can no longer support a motion to reopen. By implication, if USCIS does not approve the application within the 90-day window for filing a motion to reopen, reopening will not be available.)
• Motions must disclose any criminal convictions that have occurred since the entry of a final order of removal.
• Where an asylum application has been denied as frivolous, subsequent motions to reopen and stay requests will be denied. (The rule does not speak to whether the underlying frivolous finding can be challenged.)
• Joint and unopposed motions may not be automatically granted.
• If a motion is granted for a specific issue, reopened proceedings are limited to that issue. Respondents may not seek reopening for asylum and then pursue another form of relief.
• Motions cannot be granted unless they provide appropriate contact information for the respondent. (It is not clear, but this change may preclude ‘c/o counsel’ addresses.)
• Travel under advance parole will now be a “departure” for inadmissibility purposes, thus overruling the BIA decision Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012).
• Reopening based on ineffective assistance of counsel will be adjudicated under a “reasonable probability” standard (i.e., motions can only be granted if the case would probably have had a different outcome).
• The standards for ineffective assistance counsel claims, as set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), would be codified and made more stringent. EOIR disciplinary counsel must be notified of any bar complaints.
• Ineffective assistance of counsel complaints may be levied against pro bono attorneys.
• Stay motions may not be granted without an underlying motion to reopen or motion to reconsider.
• Respondent stay motions must have proof that an initial stay request was filed with DHS (whether DHS denied it or did not respond), and stay requests filed with EOIR may not be granted without DHS having up to three days to respond.

[ID #1190]