5.4 - Changes in Representation

(a) Substitution of Practitioner 

       (1) Before the immigration court — When a respondent/applicant wishes to substitute a new practitioner for a prior practitioner, the new practitioner must submit a written or oral motion for substitution of counsel, accompanied by a Form EOIR-28.  See 8 C.F.R. § 1003.17(a)(3).  See Part II, Chapter 2 (Filing with the Immigration Court), Appendix D (Cover Pages).  The motion should contain the following information:

• whether the motion to substitute counsel is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceeding;

• the reason(s) for the substitution of counsel, in conformance with applicable state bar and other ethical rules;

• evidence that the prior practitioner has been notified about the motion for substitution of counsel; and

• evidence of the respondent/applicant’s consent to the substitution of counsel. 

If the motion is in writing, the new practitioner should serve a copy of the motion and executed Form EOIR-28 on the prior practitioner, as well as on the DHS if required.  A Proof of Service of the motion and Form EOIR-28 on the prior practitioner is sufficient to show that the prior practitioner has been notified about the motion to substitute counsel.

In adjudicating a motion for substitution of counsel, the time remaining before the next hearing and the reason(s) given for the substitution are taken into consideration.  Extension requests based on substitution of counsel are not favored.

If a motion for substitution of counsel is granted, the prior practitioner need not file a motion to withdraw.  However, until a motion for substitution of counsel is granted, the original practitioner remains the respondent/applicant’s practitioner of record and must appear at all scheduled hearings.

The granting of a motion for substitution of counsel does not constitute a continuance of a scheduled hearing.  Accordingly, parties must be prepared to proceed at the next scheduled hearing.

     (2) Before the Board – Represented respondent/applicants may substitute a practitioner at their discretion.  When a respondent/applicant wishes to substitute a new practitioner for a prior practitioner, the new practitioner must file a Form EOIR-27.  The new practitioner is expected to serve a copy of the Form EOIR-27 on the prior practitioner as well as DHS if required.  See Part III, Chapter 2.2 (Service).

Upon receipt of the new Form EOIR-27, the Board automatically recognizes the new practitioner as the practitioner of record, and the prior practitioner need not file a motion to withdraw.  However, until such time as a new Form EOIR-27 has been filed, the prior practitioner remains the practitioner of record and is accountable as such.

Extension requests that are based on substitution of counsel are not favored.  See Part III, Chapter 3.7(c) (Extensions).

(b) Withdrawal of Practitioner — 

     (1) Before the immigration court – When a practitioner wishes to withdraw from representing a respondent/applicant, the practitioner must submit a written or oral motion to withdraw.  See 8 C.F.R. § 1003.17(b).  See Part II, Chapter 2 (Filing with the Immigration Court), Appendix D (Cover Pages).  The motion should contain the following information:

• whether the motion to withdraw is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceedings;

• the reason(s) for the withdrawal of counsel, in conformance with applicable ethical rules;

• the last known address of the respondent/applicant;

• a statement and evidence that the practitioner notified or attempted to notify the respondent/applicant of the request to withdraw as counsel, with a recitation of specific efforts made, of (a) pending deadlines; (b) the date, time, and place of the next scheduled hearing; (c) the necessity of meeting deadlines and appearing at scheduled hearings; and (d) the consequences of failing to meet deadlines or appear at scheduled hearings; and

• evidence of the alien’s consent to the practitioner’s withdrawal or a statement of why evidence of such consent is unobtainable.

In adjudicating a motion to withdraw, the time remaining before the next hearing and the reason(s) given for the withdrawal are taken into consideration.

Until a motion to withdraw is granted, the practitioner who filed the motion remains the practitioner of record and must attend all scheduled hearings.

    (2) Before the Board – A practitioner of record seeking withdrawal should file a motion with a cover page labeled “MOTION TO WITHDRAW AS COUNSEL.” See Part III, Chapter 2.2 (Service), Appendix D (Cover Pages).  The motion should contain the following information:

• the last known address of the represented respondent/applicant;

• evidence that the practitioner of record has notified or attempted to notify the alien of the request to withdraw as counsel; and

• evidence that either (a) the respondent/applicant is aware of pending deadlines, existing obligations, and the consequences for failing to comply with those deadlines and obligations, or (b) the practitioner of record attempted to notify the alien of those deadlines and obligations.  See Matter of Rosales, 19 I&N Dec. 655 (BIA 1988).  Withdrawal should be effected in a timely fashion to avoid compromising the interests of the respondent/applicant.

(c) Release of practitioner — 

   (1) Before the immigration court – When an alien elects to terminate representation by a practitioner, the practitioner remains the practitioner of record until the Immigration Judge has granted either a motion for substitution of counsel or a motion to withdraw, as appropriate.  

   (2) Before the Board – If a represented respondent/applicant dismisses his or her practitioner of record and does not retain a new practitioner immediately, the represented respondent/applicant should notify the Board through correspondence with a cover page labeled.  “NOTICE OF DISMISSAL OF PRACTITIONER.” See Appendix D (Cover Pages).  This “dismissal notice” should contain the full name, A-Number, and complete address of the respondent/applicant, as well as the name of the practitioner of record being dismissed.  The dismissal notice should also contain Proof of Service indicating that both the practitioner of record and DHS have been served.  See Part III, Chapter 2.2 (Service).  An updated Change of Address Form (Form EOIR-33/BIA) should accompany the dismissal notice.

If a represented respondent/applicant dismisses one practitioner of record but retains a new practitioner who immediately files a Form EOIR-27, the respondent/applicant need not file a dismissal notice for the first practitioner of record.

If, after a dismissal notice has been filed, a respondent/applicant retains a new practitioner, the new practitioner must file a Form EOIR-27.

(d) Change in firm/organization — In the event that a practitioner departs a law firm or organization but wishes to continue representing the respondent/applicant as the practitioner of record, the practitioner must promptly file a new Form EOIR-28 or Form EOIR-27 as appropriate.  The new Form EOIR-28 or Form EOIR -27 must reflect any change of address information and apprise the immigration court or the Board of the practitioner’s change in affiliation.  The practitioner should check the “new address” box in the address block of the new Form EOIR-28 or Form EOIR-27, which must be served on the opposing party if not filed through ECAS.  The practitioner must also update eRegistry information online prior to submitting a new Form EOIR-28 or Form EOIR-27, as appropriate.

(e) Change in practitioner —