Substitution of Counsel and Form EOIR-28 in Immigration Court
A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. This page explains current Immigration Court procedure and preservation.
A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents.
Core Rule
EOIR-28 substitution of counsel core rule begins with this rule: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. For EOIR-28 substitution of counsel, counsel should address the opposing position. The EOIR-28 substitution of counsel presentation should request an express finding. A EOIR-28 substitution of counsel motion should update the court if facts change.
EOIR-28 substitution of counsel core rule also reflects this point: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. In EOIR-28 substitution of counsel, the record should confirm the ruling on the record. During EOIR-28 substitution of counsel, counsel should make a focused proffer. The judge addressing EOIR-28 substitution of counsel should protect later appellate review.
EOIR-28 substitution of counsel core rule remains subject to this principle: Granting substitution does not itself continue a hearing or extend an existing filing deadline. After EOIR-28 substitution of counsel, counsel should calendar the next obligation. Any dispute about EOIR-28 substitution of counsel should identify the hearing posture. Appellate preservation for EOIR-28 substitution of counsel should cite the controlling source.
Authority
EOIR-28 substitution of counsel authority begins with this rule: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. For EOIR-28 substitution of counsel, counsel should request an express finding. The EOIR-28 substitution of counsel presentation should update the court if facts change. A EOIR-28 substitution of counsel motion should confirm the ruling on the record.
EOIR-28 substitution of counsel authority also reflects this point: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. In EOIR-28 substitution of counsel, the record should make a focused proffer. During EOIR-28 substitution of counsel, counsel should protect later appellate review. The judge addressing EOIR-28 substitution of counsel should calendar the next obligation.
EOIR-28 substitution of counsel authority remains subject to this principle: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. After EOIR-28 substitution of counsel, counsel should identify the hearing posture. Any dispute about EOIR-28 substitution of counsel should cite the controlling source. Appellate preservation for EOIR-28 substitution of counsel should describe the triggering fact.
Trigger
EOIR-28 substitution of counsel trigger begins with this rule: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. For EOIR-28 substitution of counsel, counsel should update the court if facts change. The EOIR-28 substitution of counsel presentation should confirm the ruling on the record. A EOIR-28 substitution of counsel motion should make a focused proffer.
EOIR-28 substitution of counsel trigger also reflects this point: Granting substitution does not itself continue a hearing or extend an existing filing deadline. In EOIR-28 substitution of counsel, the record should protect later appellate review. During EOIR-28 substitution of counsel, counsel should calendar the next obligation. The judge addressing EOIR-28 substitution of counsel should identify the hearing posture.
EOIR-28 substitution of counsel trigger remains subject to this principle: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. After EOIR-28 substitution of counsel, counsel should cite the controlling source. Any dispute about EOIR-28 substitution of counsel should describe the triggering fact. Appellate preservation for EOIR-28 substitution of counsel should attach the relevant record.
Record
EOIR-28 substitution of counsel record begins with this rule: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. For EOIR-28 substitution of counsel, counsel should confirm the ruling on the record. The EOIR-28 substitution of counsel presentation should make a focused proffer. A EOIR-28 substitution of counsel motion should protect later appellate review.
EOIR-28 substitution of counsel record also reflects this point: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. In EOIR-28 substitution of counsel, the record should calendar the next obligation. During EOIR-28 substitution of counsel, counsel should identify the hearing posture. The judge addressing EOIR-28 substitution of counsel should cite the controlling source.
EOIR-28 substitution of counsel record remains subject to this principle: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. After EOIR-28 substitution of counsel, counsel should describe the triggering fact. Any dispute about EOIR-28 substitution of counsel should attach the relevant record. Appellate preservation for EOIR-28 substitution of counsel should state the requested ruling.
Evidence
EOIR-28 substitution of counsel evidence begins with this rule: Granting substitution does not itself continue a hearing or extend an existing filing deadline. For EOIR-28 substitution of counsel, counsel should make a focused proffer. The EOIR-28 substitution of counsel presentation should protect later appellate review. A EOIR-28 substitution of counsel motion should calendar the next obligation.
EOIR-28 substitution of counsel evidence also reflects this point: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. In EOIR-28 substitution of counsel, the record should identify the hearing posture. During EOIR-28 substitution of counsel, counsel should cite the controlling source. The judge addressing EOIR-28 substitution of counsel should describe the triggering fact.
EOIR-28 substitution of counsel evidence remains subject to this principle: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. After EOIR-28 substitution of counsel, counsel should attach the relevant record. Any dispute about EOIR-28 substitution of counsel should state the requested ruling. Appellate preservation for EOIR-28 substitution of counsel should preserve a timely objection.
Hearing Procedure
EOIR-28 substitution of counsel hearing procedure begins with this rule: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. For EOIR-28 substitution of counsel, counsel should protect later appellate review. The EOIR-28 substitution of counsel presentation should calendar the next obligation. A EOIR-28 substitution of counsel motion should identify the hearing posture.
EOIR-28 substitution of counsel hearing procedure also reflects this point: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. In EOIR-28 substitution of counsel, the record should cite the controlling source. During EOIR-28 substitution of counsel, counsel should describe the triggering fact. The judge addressing EOIR-28 substitution of counsel should attach the relevant record.
EOIR-28 substitution of counsel hearing procedure remains subject to this principle: Granting substitution does not itself continue a hearing or extend an existing filing deadline. After EOIR-28 substitution of counsel, counsel should state the requested ruling. Any dispute about EOIR-28 substitution of counsel should preserve a timely objection. Appellate preservation for EOIR-28 substitution of counsel should explain the practical prejudice.
Judge Findings
EOIR-28 substitution of counsel judge findings begins with this rule: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. For EOIR-28 substitution of counsel, counsel should calendar the next obligation. The EOIR-28 substitution of counsel presentation should identify the hearing posture. A EOIR-28 substitution of counsel motion should cite the controlling source.
EOIR-28 substitution of counsel judge findings also reflects this point: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. In EOIR-28 substitution of counsel, the record should describe the triggering fact. During EOIR-28 substitution of counsel, counsel should attach the relevant record. The judge addressing EOIR-28 substitution of counsel should state the requested ruling.
EOIR-28 substitution of counsel judge findings remains subject to this principle: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. After EOIR-28 substitution of counsel, counsel should preserve a timely objection. Any dispute about EOIR-28 substitution of counsel should explain the practical prejudice. Appellate preservation for EOIR-28 substitution of counsel should separate procedure from merits.
Respondent Position
EOIR-28 substitution of counsel respondent position begins with this rule: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. For EOIR-28 substitution of counsel, counsel should identify the hearing posture. The EOIR-28 substitution of counsel presentation should cite the controlling source. A EOIR-28 substitution of counsel motion should describe the triggering fact.
EOIR-28 substitution of counsel respondent position also reflects this point: Granting substitution does not itself continue a hearing or extend an existing filing deadline. In EOIR-28 substitution of counsel, the record should attach the relevant record. During EOIR-28 substitution of counsel, counsel should state the requested ruling. The judge addressing EOIR-28 substitution of counsel should preserve a timely objection.
EOIR-28 substitution of counsel respondent position remains subject to this principle: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. After EOIR-28 substitution of counsel, counsel should explain the practical prejudice. Any dispute about EOIR-28 substitution of counsel should separate procedure from merits. Appellate preservation for EOIR-28 substitution of counsel should address the opposing position.
DHS Position
EOIR-28 substitution of counsel dhs position begins with this rule: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. For EOIR-28 substitution of counsel, counsel should cite the controlling source. The EOIR-28 substitution of counsel presentation should describe the triggering fact. A EOIR-28 substitution of counsel motion should attach the relevant record.
EOIR-28 substitution of counsel dhs position also reflects this point: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. In EOIR-28 substitution of counsel, the record should state the requested ruling. During EOIR-28 substitution of counsel, counsel should preserve a timely objection. The judge addressing EOIR-28 substitution of counsel should explain the practical prejudice.
EOIR-28 substitution of counsel dhs position remains subject to this principle: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. After EOIR-28 substitution of counsel, counsel should separate procedure from merits. Any dispute about EOIR-28 substitution of counsel should address the opposing position. Appellate preservation for EOIR-28 substitution of counsel should request an express finding.
Counsel Strategy
EOIR-28 substitution of counsel counsel strategy begins with this rule: Granting substitution does not itself continue a hearing or extend an existing filing deadline. For EOIR-28 substitution of counsel, counsel should describe the triggering fact. The EOIR-28 substitution of counsel presentation should attach the relevant record. A EOIR-28 substitution of counsel motion should state the requested ruling.
EOIR-28 substitution of counsel counsel strategy also reflects this point: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. In EOIR-28 substitution of counsel, the record should preserve a timely objection. During EOIR-28 substitution of counsel, counsel should explain the practical prejudice. The judge addressing EOIR-28 substitution of counsel should separate procedure from merits.
EOIR-28 substitution of counsel counsel strategy remains subject to this principle: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. After EOIR-28 substitution of counsel, counsel should address the opposing position. Any dispute about EOIR-28 substitution of counsel should request an express finding. Appellate preservation for EOIR-28 substitution of counsel should update the court if facts change.
Timing
EOIR-28 substitution of counsel timing begins with this rule: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. For EOIR-28 substitution of counsel, counsel should attach the relevant record. The EOIR-28 substitution of counsel presentation should state the requested ruling. A EOIR-28 substitution of counsel motion should preserve a timely objection.
EOIR-28 substitution of counsel timing also reflects this point: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. In EOIR-28 substitution of counsel, the record should explain the practical prejudice. During EOIR-28 substitution of counsel, counsel should separate procedure from merits. The judge addressing EOIR-28 substitution of counsel should address the opposing position.
EOIR-28 substitution of counsel timing remains subject to this principle: Granting substitution does not itself continue a hearing or extend an existing filing deadline. After EOIR-28 substitution of counsel, counsel should request an express finding. Any dispute about EOIR-28 substitution of counsel should update the court if facts change. Appellate preservation for EOIR-28 substitution of counsel should confirm the ruling on the record.
Conditions
EOIR-28 substitution of counsel conditions begins with this rule: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. For EOIR-28 substitution of counsel, counsel should state the requested ruling. The EOIR-28 substitution of counsel presentation should preserve a timely objection. A EOIR-28 substitution of counsel motion should explain the practical prejudice.
EOIR-28 substitution of counsel conditions also reflects this point: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. In EOIR-28 substitution of counsel, the record should separate procedure from merits. During EOIR-28 substitution of counsel, counsel should address the opposing position. The judge addressing EOIR-28 substitution of counsel should request an express finding.
EOIR-28 substitution of counsel conditions remains subject to this principle: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. After EOIR-28 substitution of counsel, counsel should update the court if facts change. Any dispute about EOIR-28 substitution of counsel should confirm the ruling on the record. Appellate preservation for EOIR-28 substitution of counsel should make a focused proffer.
Merits Interaction
EOIR-28 substitution of counsel merits interaction begins with this rule: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. For EOIR-28 substitution of counsel, counsel should preserve a timely objection. The EOIR-28 substitution of counsel presentation should explain the practical prejudice. A EOIR-28 substitution of counsel motion should separate procedure from merits.
EOIR-28 substitution of counsel merits interaction also reflects this point: Granting substitution does not itself continue a hearing or extend an existing filing deadline. In EOIR-28 substitution of counsel, the record should address the opposing position. During EOIR-28 substitution of counsel, counsel should request an express finding. The judge addressing EOIR-28 substitution of counsel should update the court if facts change.
EOIR-28 substitution of counsel merits interaction remains subject to this principle: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. After EOIR-28 substitution of counsel, counsel should confirm the ruling on the record. Any dispute about EOIR-28 substitution of counsel should make a focused proffer. Appellate preservation for EOIR-28 substitution of counsel should protect later appellate review.
Appeal Preservation
EOIR-28 substitution of counsel appeal preservation begins with this rule: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. For EOIR-28 substitution of counsel, counsel should explain the practical prejudice. The EOIR-28 substitution of counsel presentation should separate procedure from merits. A EOIR-28 substitution of counsel motion should address the opposing position.
EOIR-28 substitution of counsel appeal preservation also reflects this point: A new practitioner seeking to replace prior counsel must request substitution and submit a new Form EOIR-28. In EOIR-28 substitution of counsel, the record should request an express finding. During EOIR-28 substitution of counsel, counsel should update the court if facts change. The judge addressing EOIR-28 substitution of counsel should confirm the ruling on the record.
EOIR-28 substitution of counsel appeal preservation remains subject to this principle: The new practitioner should provide evidence that prior counsel received notice of the requested substitution and that the respondent consents. After EOIR-28 substitution of counsel, counsel should make a focused proffer. Any dispute about EOIR-28 substitution of counsel should protect later appellate review. Appellate preservation for EOIR-28 substitution of counsel should calendar the next obligation.
Checklist
EOIR-28 substitution of counsel checklist begins with this rule: Granting substitution does not itself continue a hearing or extend an existing filing deadline. For EOIR-28 substitution of counsel, counsel should separate procedure from merits. The EOIR-28 substitution of counsel presentation should address the opposing position. A EOIR-28 substitution of counsel motion should request an express finding.
EOIR-28 substitution of counsel checklist also reflects this point: Current EOIR practice asks the substitution motion to identify the scope of representation and the reason for substitution. In EOIR-28 substitution of counsel, the record should update the court if facts change. During EOIR-28 substitution of counsel, counsel should confirm the ruling on the record. The judge addressing EOIR-28 substitution of counsel should make a focused proffer.
EOIR-28 substitution of counsel checklist remains subject to this principle: Until substitution is granted, the original practitioner remains counsel of record and remains responsible for scheduled hearings. After EOIR-28 substitution of counsel, counsel should protect later appellate review. Any dispute about EOIR-28 substitution of counsel should calendar the next obligation. Appellate preservation for EOIR-28 substitution of counsel should identify the hearing posture.
Primary Legal Authorities and Sources
- 8 U.S.C. §1229a(b)(4)(A) Statutory privilege of representation.
- Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) Right-to-counsel timing precedent.
- Matter of Rosales, 19 I&N Dec. 655 (BIA 1988) Withdrawal-of-counsel precedent.
- 8 C.F.R. §1003.17 Current representation regulation.
- EOIR Policy Manual 5.4 Current substitution and withdrawal guidance.
- EOIR Policy Manual 5.3 Current EOIR-28 guidance.
Frequently Asked Questions
What is the main rule for substitution counsel EOIR-28 immigration court?
When should substitution counsel EOIR-28 immigration court be raised?
What evidence supports substitution counsel EOIR-28 immigration court?
Does substitution counsel EOIR-28 immigration court automatically stop proceedings?
Can substitution counsel EOIR-28 immigration court affect a BIA appeal?
How should counsel preserve substitution counsel EOIR-28 immigration court?
Related INA237.com Guides
Need Help With a Removal Case?
If you have an NTA, immigration court notice, USCIS denial, ICE document, or criminal record relevant to possible removability, keep a complete copy available for review.
Request a Consultation