Professional Conduct for Practitioners, Scope of Representation and Appearances
| Published date | 27 March 2019 |
| Citation | 84 FR 11446 |
| Record Number | 2019-05838 |
| Section | Proposed rules |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 84 Issue 59 (Wednesday, March 27, 2019)
[Federal Register Volume 84, Number 59 (Wednesday, March 27, 2019)]
[Proposed Rules]
[Pages 11446-11448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05838]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 59 / Wednesday, March 27, 2019 /
Proposed Rules
[[Page 11446]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1292
[EOIR Docket No. 18-0301; RIN 1125-AA83]
Professional Conduct for Practitioners, Scope of Representation
and Appearances
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Advance notice of proposed rulemaking with request for comment.
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SUMMARY: The Department of Justice (Department) is evaluating the
possibility of revising the rules and procedures governing
representation and appearance during proceedings before the Executive
Office for Immigration Review's (EOIR) immigration courts and Board of
Immigration Appeals (BIA). The Department is considering whether to
amend those rules to allow for, and identify the nature and scope of,
authorized practitioners' limited representation of aliens before EOIR.
The Department is issuing this advance notice of proposed rulemaking
(ANPRM) to solicit public suggestions for any such potential amendments
to the relevant portions of EOIR's regulations.
DATES: The Department invites written or electronic comments from
members of the public submitted on or before April 26, 2019. Written
comments postmarked on or before that date will be considered timely.
The electronic Federal Docket Management System will accept comments
prior to midnight Eastern Time at the end of that day.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0301 or RIN 1125-AA83, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 18-0301 on your correspondence. This mailing
address may be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Lauren Alder Reid, Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact
Telephone Number (703) 305-0289.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2616, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit written data, views, or
arguments on all aspects of this ANPRM. EOIR also invites comments that
relate to the economic, environmental, or federalism effects that might
result from any regulatory changes related to these matters.
Please note that all comments received are considered part of the
public record and made available for public inspection at
www.regulations.gov. Such information includes personally identifiable
information (such as a person's name, address, or any other data that
might personally identify that individual) that the commenter
voluntarily submits.
If you want to submit personally identifiable information as part
of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
paragraph of your comment and precisely and prominently identify the
information of which you seek redaction.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment and precisely and prominently identify the confidential
business information of which you seek redaction. If a comment has so
much confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted on
www.regulations.gov. Personally identifiable information and
confidential business information provided as set forth above will be
placed in the agency's public docket file, but not posted online. To
inspect the agency's public docket file in person, you must make an
appointment with agency counsel. Please see the FOR FURTHER INFORMATION
CONTACT paragraph above for the agency counsel's contact information
specific to this rule.
II. Background
The Immigration and Nationality Act (INA) provides that aliens
appearing before an immigration judge and on appeal before the BIA
``shall have the privilege of being represented, at no expense to the
Government, by counsel of the alien's choosing who is authorized to
practice in such proceedings.'' INA Sec. 240(b)(4)(A) (8 U.S.C.
1229a(b)(4)(A)); see also INA Sec. 292 (8 U.S.C. 1362). Attorneys in
good standing and accredited representatives approved by EOIR are
eligible to represent respondents in EOIR proceedings, as well as
certain other persons as provided in 8 CFR 1292.1.
In order to represent an alien before EOIR, an attorney or
representative must meet the regulatory requirements, including the
filing of a Notice of Entry of Appearance as Attorney or Representative
before the Immigration Court (Form EOIR-28) or a Notice of Entry of
Appearance as Attorney or Representative before the Board of
Immigration Appeals (Form EOIR-27), as appropriate. See 8 CFR
1003.3(a)(3), 1003.17, 1003.38(g), and part 1292. Representation
continues in the proceedings for which an attorney or representative
enters an appearance before EOIR, whether it is front of the
immigration court or the BIA. The representation continues until and
unless the immigration judge or the BIA, whichever applies, grants an
oral or written motion to withdraw or substitute. See 8 CFR 1003.17(b),
1003.38(g), 1292.4(a).\1\
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\1\ In 2003, the Attorney General redesignated the previous
regulations in 8 CFR parts 3 and 292, relating to EOIR, as 8 CFR
parts 1003 and 1292 in connection with the abolition of the former
Immigration and Naturalization Service and the transfer of its
responsibilities to the Department of Homeland Security. 68 FR 9824
(Feb. 28, 2003). Under the Homeland Security Act, EOIR (including
the BIA and the immigration courts) remains under the authority of
the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). 8 CFR
1292.4(a) (previously 8 CFR 292.4(a)) provides that withdrawal/
substitution of counsel before the BIA is permitted in accordance
with 8 CFR 1003.36 (previously 8 CFR 3.36). However, 8 CFR 3.36
(later 8 CFR 1003.36) was redesignated as 8 CFR 3.38 (later 8 CFR
1003.38) in April 1992. See 57 FR 11568, 11570 (Apr. 6, 1992). Thus,
the correct reference in 8 CFR 1292.4(a) should be to 8 CFR
1003.38(g). Further, the reference to 1003.16 should be understood
as a reference to 1003.17.
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[[Page 11447]]
Historically, EOIR did not permit limited appearances by attorneys
and accredited representatives. That is, prior to a regulatory change
published in 2015, an attorney or accredited representative who entered
an appearance on behalf of a respondent for any purpose was deemed to
be the person's representative for purposes of all of immigration court
or BIA proceedings for which they entered an appearance, including bond
proceedings and removal proceedings.
In 2015, the Department published a final rule to allow
representatives ``to enter an appearance solely to custody and bond
proceedings before the Immigration Court'' by amending 8 CFR
1003.17(a). 80 FR 59500 (Oct. 1, 2015). In response to a comment
seeking a broadening of the limited scope of representation permitted,
the Department noted that the regulations would still require ``a
representative of record to represent an individual in all aspects of
each separate type of proceeding, unless the immigration judge grants a
motion to withdraw or substitute counsel.'' 80 FR 59501. Therefore,
when an attorney or authorized representative enters an appearance
before an immigration court, the appearance may be entered for
representation in ``custody or bond proceedings only, any other
proceedings only, or for all proceedings'' before an immigration judge.
8 CFR 1003.17(a).
In any case appealed to the BIA, the alien may also be represented
by an attorney or representative. See 8 U.S.C. 1362. Representation
before the BIA continues until and unless withdrawal or substitution of
attorney or representative is permitted. See 8 CFR 1003.38(g),
1292.4(a).
In addition to the foregoing regulations dealing with appearances,
the current EOIR regulations also include definitions pertaining to
practice. See 8 CFR 1001.1(i) and (k):
(i) The term practice means the act or acts of any person
appearing in any case, either in person or through the preparation
or filing of any brief or other document, paper, application, or
petition on behalf of another person or client before or with DHS,
or any immigration judge, or the Board.
* * * * *
(k) The term preparation, constituting practice, means the study
of the facts of a case and the applicable laws, coupled with the
giving of advice and auxiliary activities, including the incidental
preparation of papers, but does not include the lawful functions of
a notary public or service consisting solely of assistance in the
completion of blank spaces on printed Service forms by one whose
remuneration, if any, is nominal and who does not hold himself out
as qualified in legal matters or in immigration and naturalization
procedure.
The Department is now considering further revision to EOIR's
regulations governing the rules of practice and the scope of appearance
and representation in proceedings before the immigration courts and the
BIA.
III. Request for Public Comments
Before proposing any specific regulatory text for public comment,
the Department is seeking preliminary input from the public. In
addition to soliciting suggestions and comments in responses to the
specific questions raised in this ANPRM, the Department is particularly
interested in hearing from all those who have a stake in providing,
receiving, or coordinating representation in the immigration court
system. The Department is interested in hearing all views related to
the possibility of expanding procedures for the limited representation
of aliens in proceedings before EOIR.
Question 1: Should the Department permit certain types of limited
representation currently impermissible under regulations? If so, to
what extent? If not, why not?
Question 2: Should limited representation be permitted to allow
attorneys or representatives to appear at a single hearing in
proceedings before EOIR, possibly leaving the respondent without
representation for a subsequent hearing on the same filing? If so, to
what extent? If not, why not?
Question 3: Should limited representation be permitted to allow
attorneys or representatives to prepare or file a pleading,
application, motion, brief, or other document without providing further
representation in the case? If not, why not? If so, should attorneys or
representatives be required to identify themselves as the author of the
document or should anonymity (i.e., ghostwriting) be permitted?
Question 4: If limited representation is permitted in proceedings
before EOIR, should an attorney or representative be required to file a
Notice of Entry of Appearance regardless of the scope of the limited
representation? If so, should a form separate from the EOIR-27 and
EOIR-28 be created for such appearances?
Question 5: If limited representation is permitted, should
attorneys or representatives certify to EOIR, either through a form or
filings made, that the alien has been informed about the limited scope
of the representation?
Question 6: If limited representation is permitted in proceedings
before EOIR, to what extent should such attorneys or representatives
have access to the relevant record of proceedings?
Question 7: To what extent could different approaches for limited
representation impair the adjudicative process or encourage abuse or
other misconduct that adversely affects EOIR, the public, or aliens in
proceedings, or lead to increased litigation regarding issues of
ineffective assistance of counsel?
Question 8: What safeguards, if any, should be implemented to
ensure the integrity of the process associated with limited
representation in proceedings before EOIR, and to prevent any potential
abuse and fraud?
Question 9: What kinds of constraints or legal concerns with
respect to limited representation may arise under state rules of ethics
or professional conduct for attorneys who are members of the bar in the
various states?
Question 10: Should EOIR provide that practitioners, as a condition
of representing aliens in a limited manner, be required to agree to
limit their fees in charging for their services?
Question 11: The Department is interested in gathering other
information or data relating to the issue of expanding limited
appearances in EOIR proceedings. Are there any additional issues or
information not addressed by the Department's questions that are
important for the Department to consider? Please provide as much detail
as possible in your response.
Comments that will provide the most assistance to EOIR will
reference a specific regulatory section, provide draft regulatory
language, explain the reasons for the recommended amendment, and
include data, information, or authority that support the recommended
amendment.
IV. Statutory and Executive Order Review
This ANPRM has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,''
[[Page 11448]]
section 1(b), General Principles of Regulation, and in accordance with
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs.'' The Department has determined that this ANPRM is a significant
regulatory action under Executive Order 12866, section 3(f), and
accordingly this ANPRM has been reviewed by the Office of Management
and Budget. Pursuant to guidance issued by OMB, the requirements of
E.O. 13771 do not apply to this ANPRM.
This action does not propose or impose any requirements. The ANPRM
is being published to seek information from the public regarding the
possibility of revising the rules and procedures governing
representation and appearance during proceedings before EOIR's
immigration courts and the BIA. The requirements of the Regulatory
Flexibility Act (RFA) do not apply to this action because, at this
stage, it is an ANPRM and not a ``rule'' as defined in 5 U.S.C. 601.
Following review of the comments received in response to this ANPRM, if
EOIR decides to proceed with a notice of proposed rulemaking regarding
this matter, EOIR will conduct all relevant analyses as required by
statute or Executive Order.
Dated: March 5, 2019.
James R. McHenry,
Director.
[FR Doc. 2019-05838 Filed 3-26-19; 8:45 am]
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