Rule2022-19882
Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 14, 2022
Effective
November 14, 2022
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
On March 27, 2019, the Department of Justice (the Department) published in the Federal Register an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit public comments regarding whether the Department should allow practitioners who appear before the Executive Office for Immigration Review (EOIR) to engage in limited representation or representation of a noncitizen during only a portion of the case, beyond what the regulations permitted. On September 30, 2020, after reviewing the comments to the ANPRM, the Department published in the Federal Register a Notice of Proposed Rulemaking (NPRM). The NPRM proposed to amend the regulations to allow practitioners the option of entering a limited appearance to assist pro se individuals with drafting, writing, or filing applications, petitions, briefs, and other documents in proceedings before EOIR, as opposed to requiring the practitioner to enter an appearance to become the "practitioner of record" and thereby to accept certain obligations and responsibilities. This final rule responds to comments received in response to the NPRM and adopts the proposed rule with changes as described below. Specifically, this final rule permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61, without requiring the practitioner to become the practitioner of record or to submit a motion to withdraw or substitute after completing the document assistance.
Full Text
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<title>Federal Register, Volume 87 Issue 177 (Wednesday, September 14, 2022)</title>
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[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Rules and Regulations]
[Pages 56247-56259]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19882]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 87, No. 177 / Wednesday, September 14, 2022 /
Rules and Regulations
[[Page 56247]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001 and 1003
[EOIR Docket No. 22-0201; A.G. Order No. 5499-2022]
RIN 1125-AA83
Professional Conduct for Practitioners--Rules and Procedures, and
Representation and Appearances
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: On March 27, 2019, the Department of Justice (the Department)
published in the Federal Register an Advanced Notice of Proposed
Rulemaking (ANPRM) to solicit public comments regarding whether the
Department should allow practitioners who appear before the Executive
Office for Immigration Review (EOIR) to engage in limited
representation or representation of a noncitizen during only a portion
of the case, beyond what the regulations permitted. On September 30,
2020, after reviewing the comments to the ANPRM, the Department
published in the Federal Register a Notice of Proposed Rulemaking
(NPRM). The NPRM proposed to amend the regulations to allow
practitioners the option of entering a limited appearance to assist pro
se individuals with drafting, writing, or filing applications,
petitions, briefs, and other documents in proceedings before EOIR, as
opposed to requiring the practitioner to enter an appearance to become
the ``practitioner of record'' and thereby to accept certain
obligations and responsibilities. This final rule responds to comments
received in response to the NPRM and adopts the proposed rule with
changes as described below. Specifically, this final rule permits
practitioners to provide document assistance to pro se individuals by
entering a limited appearance through new Forms EOIR-60 or EOIR-61,
without requiring the practitioner to become the practitioner of record
or to submit a motion to withdraw or substitute after completing the
document assistance.
DATES: This rule is effective November 14, 2022.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Background
The Immigration and Nationality Act (INA) provides that noncitizens
appearing before an immigration judge ``shall have the privilege of
being represented, at no expense to the Government, by counsel of the
[noncitizen]'s choosing who is authorized to practice in such
proceedings.'' INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA
292, 8 U.S.C. 1362 (``In any removal proceedings before an immigration
judge . . . the person concerned shall have the privilege of being
represented (at no expense to the Government) by such counsel . . . as
[the person concerned] shall choose.''); 8 CFR 1003.16(b) (``The
[noncitizen] may be represented in proceedings before an Immigration
Judge by an attorney or other representative of [the person
concerned's] choice in accordance with 8 CFR part 1292, at no expense
to the government.'').
The Department has promulgated regulations that establish rules of
procedure before the immigration courts and the Board of Immigration
Appeals (BIA), including rules specifying who is authorized to provide
representation and standards of professional conduct governing those
authorized to provide representation. See 8 CFR Subpart A (BIA rules of
procedure); 8 CFR Subpart C (immigration court rules of procedure); 8
CFR Subpart G (rules of professional conduct for practitioners); 8 CFR
1292.1 (describing individuals authorized to provide representation
before EOIR). Under those regulations, individuals authorized to
provide representation--i.e., attorneys, law students, law graduates,
reputable individuals, accredited representatives, and accredited
officials--are known as ``practitioners.'' 8 CFR 1003.101(b); see also
8 CFR 1292.1. In order to become the ``practitioner of record,'' which
authorizes and requires the practitioner to appear before EOIR on
behalf of the respondent, file all documents on behalf of the
respondent, and accept service of process of all documents filed in the
proceedings, practitioners must file a Notice of Entry of Appearance as
Attorney or Representative Before the Board of Immigration Appeals
(Form EOIR-27) or a Notice of Entry of Appearance as Attorney or
Representative Before the Immigration Court (Form EOIR-28). 8 CFR
1003.3(a)(3), 1003.17(a), 1003.38(g), 1292.4(a). When a practitioner
enters an appearance using these forms, that individual is the
practitioner of record in the case for which the appearance form was
filed, unless and until the immigration judge or the BIA grants a
motion to withdraw or substitute. 8 CFR 1003.17(a)(3), 1003.38(g)(3),
1292.4(a).
Prior to a 2015 final rule, an entry of appearance in immigration
court through the filing of a Form EOIR-28 required a practitioner to
represent a noncitizen in all proceedings before the immigration court,
including removal and bond proceedings if the noncitizen was
detained.\1\ See Separate Representation for Custody and Bond
Proceedings, 80 FR 59500 (Oct. 1, 2015). The 2015 final rule allowed
practitioners to enter an appearance to represent a noncitizen in
``custody or bond proceedings only, any other proceedings only, or for
all proceedings.'' 8 CFR 1003.17(a). In sum, a practitioner can enter
an appearance to be a practitioner of record in one of three
capacities: (1) all proceedings, to include removal, deportation,
exclusion, credible and reasonable fear, or any other proceeding type,
and custody or bond; (2) custody or bond proceedings only; or (3) all
proceedings other than custody and bond proceedings. A practitioner who
enters an appearance in one of the three capacities becomes
[[Page 56248]]
the practitioner of record for the designated proceeding(s). That
practitioner then has certain obligations and responsibilities,
including completing written filings, making appearances in court, and
accepting service of documents, unless and until the immigration judge
permits withdrawal or substitution of counsel. See 8 CFR 1003.17(b).
Separate appearances in custody and non-custody proceedings are
permitted under that final rule, and this rule does not alter that. As
has been the case since 2015, a noncitizen remains ``pro se'' in any
type of proceeding in which a practitioner has not entered an
appearance to be the practitioner of record. For example, if a
practitioner entered an appearance to be practitioner of record in
custody or bond proceedings only, the noncitizen would remain ``pro
se'' in all proceedings other than custody or bond proceedings. See 80
FR at 59500 (authorizing a practitioner to enter an appearance solely
for custody or bond proceedings before the immigration court, such that
noncitizen would appear pro se for all other proceedings if no
practitioner has entered an appearance for those other proceedings).
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\1\ The 2015 amendment did not alter the rules for entering an
appearance before the BIA. A separate entry of appearance was
already required when an appeal was filed with the BIA from a
decision of an immigration judge or a District Director decision.
See 8 CFR 1003.38(g).
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For many years, members of the public have requested that the
Department modify EOIR's regulations to allow practitioners to engage
in limited appearances before EOIR on behalf of pro se noncitizens,
without the practitioner being obligated to become the practitioner of
record and represent the noncitizen for the entire proceeding, so that
the practitioner could provide in-person representation for a discrete,
limited part of a proceeding or draft forms or applications beyond what
is already permitted by separate appearances as discussed above. See,
e.g., 84 FR at 11447 (referencing ``a comment seeking a broadening of
the limited scope of representation permitted''). Commenters in support
of allowing such limited appearances contended that doing so would
enable practitioners to provide legal services to a greater number of
noncitizens in immigration proceedings and thereby improve the
efficiency of immigration proceedings. Specifically, the commenters
indicated that the greatest benefit of a limited appearance mechanism
would be to permit practitioners to provide pro se noncitizens with
assistance in the preparation, drafting, and filing of documents,
without obligating those practitioners to become the practitioners of
record, as is required under the current regulations.
The Department agrees and acknowledges the importance of allowing
practitioners to limit their appearance to document assistance to
enhance the efficiency and fairness of immigration proceedings. After
consideration, the Department has determined that permitting limited
appearances to provide document assistance to pro se noncitizens would
be beneficial because it would give practitioners greater flexibility
to assist noncitizens appearing pro se before EOIR, provide increased
access to competent legal services for noncitizens in immigration
proceedings, and aid EOIR in adjudicating cases of pro se noncitizens
who receive document assistance from practitioners. The new rule does
not allow limited appearances for in-person representation, beyond what
is already permitted under separate appearances as described above. See
80 FR at 59500-01; see also Matter of Velasquez, 19 I&N Dec. 377, 384
(BIA 1986).\2\
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\2\ This final rule supersedes the statement in Matter of
Velasquez that ``there is no `limited' appearance of counsel in
immigration proceedings,'' 19 I&N Dec. at 384, because this rule
amends the regulation that Matter of Velasquez relied upon.
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II. Summary of Changes
The final rule expands the circumstances in which practitioners may
assist noncitizens in proceedings before an immigration court and the
BIA by allowing practitioners to enter limited appearances--without
further obligations or responsibilities to the immigration court, the
BIA, or the noncitizen--when only providing assistance with documents
filed in those proceedings. The rule clarifies when practitioners must
file an appearance and the effect of the entry of a particular
appearance. There is no change to the mechanism that causes a
practitioner to become the ``practitioner of record,'' which authorizes
and requires the practitioner to appear before EOIR on behalf of the
respondent, file all documents on behalf of the respondent, and accept
service of process of all documents filed in the proceedings. A
practitioner becomes a practitioner of record only by entering an
appearance using a Form EOIR-27 or Form EOIR-28. Under this rule,
practitioners may also choose to enter a limited appearance on a Form
EOIR-60 or EOIR-61 when only providing document assistance to pro se
noncitizens. Such a limited appearance does not restrict practitioners
from later filing a Form EOIR-27 or EOIR-28 to enter an appearance as
the practitioner of record.
``Document assistance'' is the drafting, completing, or filling in
of blank spaces of a specific motion, brief, form, or other document or
set of documents intended to be filed with the immigration court or
BIA. If they are not otherwise the practitioner of record,
practitioners who engage in document assistance must disclose such
assistance by entering a limited appearance. To facilitate this
process, EOIR has created two new entry of appearance forms: Form EOIR-
60 (Notice of Entry of Limited Appearance for Document Assistance
Before the Board of Immigration Appeals) and Form EOIR-61 (Notice of
Entry of Limited Appearance for Document Assistance Before the
Immigration Court). In addition, practitioners must identify themselves
on the documents with which they assisted and complete the preparer
section on forms with which they assisted.
Unlike an entry of appearance to become the practitioner of record
through the filing of a Form EOIR-27 or EOIR-28, the entry of a limited
appearance for document assistance pursuant to a Form EOIR-60 or EOIR-
61 does not impose any continuing obligations to the noncitizen, the
immigration court, or the BIA on the part of the practitioner. See 8
CFR 1003.17(b)(2), 1003.38(g)(2)(ii). Practitioners who enter a limited
appearance do not become the practitioner of record and, as such, do
not have the authorization, obligation, or responsibility to appear on
behalf of the noncitizen, to otherwise represent the noncitizen before
the immigration court or the BIA, or to move to substitute or withdraw
from the proceeding. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii). A
noncitizen who receives only document assistance from a practitioner
remains pro se unless and until a practitioner files a Form EOIR-27 or
EOIR-28 to become the practitioner of record. See 8 CFR 1003.17(b)(2),
1003.38(g)(2)(ii). Indeed, only when a practitioner enters an
appearance via an EOIR-27 or EOIR-28 and becomes the practitioner of
record will the practitioner receive notice of a noncitizen's upcoming
hearings, be sent filings in the case and be permitted access to the
case file and appear in person on the noncitizen's behalf.
As explained infra, the final rule amends the definitions of
``practice'' and ``preparation'' in order to provide greater clarity
and specificity to those terms. Further, the final rule clarifies the
duty to enter an appearance and any disciplinary consequences
associated with failing to enter the proper appearance, whether through
a Form
[[Page 56249]]
EOIR-27, EOIR-28, EOIR-60, or EOIR-61, are not determined by whether
the practitioner is engaging in ``practice'' or is engaging in
``preparation.'' Practitioners enter an appearance through Form EOIR-27
or Form EOIR-28 when they seek to become the practitioner of record and
to take on the responsibilities and obligations attendant to that
status. Practitioners enter a limited appearance through Form EOIR-60
or Form EOIR-61 when they only assist with documents intended to be
filed with EOIR, regardless of whether the practitioners' work related
to those documents constitutes ``practice'' or ``preparation.''
As noted below and as was already the case, all practitioner
conduct--not just conduct that requires a practitioner to enter an
appearance as the attorney of record--may be subject to EOIR's
disciplinary rules. See 8 CFR 1003.101(b); 8 CFR 1003.102. Accordingly,
practitioners who provide assistance that requires an appearance on
Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 are subject to EOIR's Rules
of Professional Conduct. The final rule amends the disciplinary rules
to amend practitioners' obligations to enter an appearance on the
appropriate Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 and obligations
regarding the drafting and signing of documents. Such amendments are
discussed further below.
Given that only ``practitioners'' may enter an appearance before
EOIR, the changes made in this final rule regarding the circumstances
in which a practitioner must enter an appearance do not apply to non-
practitioners. Non-practitioners continue to be permitted to assist
noncitizens with the ``preparation'' of documents, which consists
solely of filling in blank spaces on printed forms with information
provided by the applicant or petitioner that are to be filed with or
submitted to EOIR, only where such acts do not include the exercise of
professional judgment to provide legal advice or legal services.\3\
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\3\ Some commenters raised the concern that this rulemaking will
not achieve the Department's goals of preventing fraud by
individuals not authorized to practice immigration law if EOIR's
appearance and disciplinary rules only apply to practitioners. While
the disciplinary rules have always only applied to practitioners,
complaints of non-practitioner fraud will continue to be
investigated by EOIR's Fraud and Abuse Prevention Program. See EOIR,
Fraud and Abuse Prevention Program, available at <a href="https://www.justice.gov/eoir/fraud-and-abuse-prevention-program">https://www.justice.gov/eoir/fraud-and-abuse-prevention-program</a> (last
updated Mar. 4, 2020). Additionally, permitting limited appearances
for document assistance will likely increase the capacity of
practitioners that will be able to assist noncitizens and as such,
noncitizens will likely be less inclined to seek out the services of
non-practitioners who may be acting unscrupulously and should be
solely limited to ``preparation'' of documents.
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In summary, the final rule establishes or reaffirms that
practitioners: (1) must enter an appearance on Form EOIR-27 or Form
EOIR-28 to become the practitioner of record and thereby be authorized
and required to appear for hearings or arguments on behalf of a
noncitizen before the immigration courts or the BIA, to file documents
on behalf of a noncitizen, and to accept service of process on behalf
of a noncitizen of all documents filed in a proceeding; (2) must enter
a limited appearance on Form EOIR-60 or Form EOIR-61 when they provide
document assistance to a pro se noncitizen, regardless of whether the
assistance involves ``practice'' (i.e., factual or legal analysis in
drafting or completion of a document) or simply ``preparation'' (i.e.,
filling in the blank spaces of a pre-printed form with information
provided by the noncitizen); and (3) are not required to enter an
appearance as described above when solely providing legal advice or
engaging in a legal consultation pertaining to a noncitizen but not
assisting with documents or appearing before EOIR on behalf of the
noncitizen, even though such conduct constitutes ``practice.'' The
final rule also reaffirms that non-practitioners cannot file an
appearance or engage in ``practice'' under any circumstances and are
limited to engaging in ``preparation.''
III. Comments and Responses
The comment period for the NPRM closed on October 30, 2020. The
Department received 41 comments. Non-governmental organizations, legal
advocacy groups, non-profit organizations, and religious organizations
submitted the majority of these comments, and individual commenters
submitted the remainder. The Department provided an additional 60-day
notice and comment period for the proposed Notices of Entry of Limited
Appearance for Document Assistance, Forms EOIR-60 and EOIR-61. See
Agency Information Collection Activities; Proposed Collection; Comments
Requested; Notice of Entry of Limited Appearance for Document
Assistance Before the Board of Immigration Appeals; and Notice of Entry
of Limited Appearance for Document Assistance Before the Immigration
Court, 86 FR 48443 (Aug. 30, 2021). No comments were received during
that comment period. Both in response to the results of the public
solicitations for comments and as the result of further consideration,
the Department has revised the proposed rule as discussed below.
Below, the Department has summarized the comments and explained the
changes the Department has made in response. The comments are addressed
by topic rather than by reference to a specific commenter to prevent
confusion due to overlapping comments and multiple subjects raised in
some of the submissions.
Some commenters asserted that the rule did not adequately explain
the goals and reasons for the proposed changes, why the Department was
departing from existing practice of prohibiting limited appearances,
that the revised definitions of ``practice'' and ``preparation'' were
arbitrary and capricious, as well as vague, and that the Department did
not consider the effect of the rule on various service-provider
programs. They stated that these concerns rise to a violation of the
Administrative Procedure Act (APA) and the U.S. Constitution. The
Department believes that the reasoning for the proposed changes was
sufficiently set forth in both the ANPRM and NPRM, and that the NPRM
adequately addressed these issues as well as the rule's expected impact
on the public. Nevertheless, the Department provides further
explanation and clarification to address these concerns herein.
A. Entering an Appearance
The Department received many comments expressing confusion or
demonstrating a lack of clarity in the proposed rule as to when the
proposed rule would require filing an entry of appearance. The comments
reflected confusion about the scope of the definitions of ``practice,''
``preparation,'' and ``representation''; the effect of filling out a
form's ``preparer section'' on the obligation to enter an appearance;
and the obligations, if any, of practitioners after the practitioner
finishes providing document assistance.
Additionally, the Department received many comments that the
proposed definitions of ``practice,'' ``preparation,'' and
``representation'' as defined in the NPRM could be interpreted by
practitioners to create additional barriers to representation and have
the overall effect of providing fewer noncitizens with legal assistance
in immigration proceedings.\4\
[[Page 56250]]
Specifically, commenters stated that the NPRM drastically expands the
``practice'' definition to include nearly any interactions
practitioners have with pro se noncitizens because typically all
interactions between practitioners and pro se noncitizens include
provision of legal advice or the exercise of legal judgment. The
proposed rule defined ``representation'' as including any form of
``practice'' because it stated in its text that ``representation before
EOIR includes practice.'' See Professional Conduct for Practitioners--
Rules and Procedures, and Representation and Appearances, 85 FR 61640,
61651 (Sept. 30, 2020) (emphasis in original). Commenters expressed
concern that this expanded definition could discourage representation
because any form of ``practice''--including the provision of legal
advice that does not include document assistance--would require the
entry of an appearance and thereby diminish the opportunity for pro se
noncitizens to receive legal assistance or advice. Commenters alleged
that nonprofit providers in particular, who already have limited
resources, would limit the scope of their services so as not to engage
in ``representation.''
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\4\ One commenter recommended that the Department pursue
universal federally funded representation in immigration proceedings
in lieu of this rule and to combat such potential chilling effect on
representation. This recommendation is beyond the Department's scope
of rulemaking authority under current law.
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Considering these comments and the concerns raised, the Department
has amended the regulatory provisions related to entry of appearances
before the immigration courts and the BIA, see 8 CFR 1003.17,
1003.38(g), as well as the definitions of ``practice'' and
``preparation,'' see 8 CFR 1001.1(i), (k). The final rule eliminates
the reference to ``represented'' at 8 CFR 1003.17(a) and 1003.38(g) and
does not otherwise rely on the definitions of ``representation'' or
``practice'' to determine when an entry of appearance pursuant to a
Form EOIR-27 or Form EOIR-28 is required, as the proposed rule did.
Given the changes the final rule makes to the entry of appearance
regulations, the Department has determined that revisions to the
existing definition of ``representation'' at 1001.1(m) are not needed.
See 8 CFR 1001.1(m) (``The term representation . . . includes practice
and preparation as defined in paragraphs (i) and (k) of this
section''). The definition will remain unchanged because
``representation'' is a term used elsewhere in the EOIR regulations,
namely, the rules of professional conduct and the rules governing who
can provide representation. See 8 CFR 1003.102(o) (disciplinary
sanctions may be imposed if a practitioner ``[f]ails to provide
competent representation,'' which ``requires the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the
representation''); 8 CFR 1292.1 (defining who is authorized to provide
representation). The changes in this final rule are intended to clarify
that practitioners may provide legal advice (i.e., engage in certain
forms of ``practice''), including, for example, engaging in
consultations with unrepresented noncitizens at a self-help clinic or
legal orientation program, without creating an obligation to enter a
full appearance as practitioner of record or otherwise represent the
noncitizen in proceedings before EOIR.
The final rule requires an entry of appearance in two
circumstances: (1) when a practitioner wants to become the practitioner
of record, which authorizes and requires the practitioner to appear
before EOIR on behalf of the respondent, file all documents on behalf
of the respondent, and accept service of process of all documents filed
in the proceedings,\5\ 8 CFR 1003.17(a), 1003.38(g)(1); and, (2) when a
practitioner provides document assistance only and does not want to
become the practitioner of record, 8 CFR 1003.17(b), 1003.38(g)(2).
Practitioners who want to become a practitioner of record must enter an
appearance on either Form EOIR-27 or Form EOIR-28. See 1003.17(a),
1003.38(g). Practitioners who only provide document assistance and do
not want to become the practitioner of record must enter a limited
appearance for document assistance on Form EOIR-60 or Form EOIR-61. See
1003.17(b). Practitioners can provide document assistance to pro se
noncitizens by drafting, completing, or filling in of blank spaces of a
specific motion, brief, form, or other document or set of documents
intended to be filed with EOIR. In order to avoid any confusion as to
what kinds of document assistance require the filing of a limited
appearance form, when practitioners engage in any document assistance
for pro se noncitizens, they must complete a Form EOIR-60 or Form EOIR-
61, regardless of whether the practitioners' conduct with respect to
the documents constitutes ``practice'' or ``preparation.''
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\5\ In immigration court proceedings, a practitioner can enter
an appearance and become the practitioner of record for ``custody or
bond proceedings only, any other proceedings only, or for all
proceedings.'' 8 CFR 1003.17(a).
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1. Entry of Appearance as Practitioner of Record
Under the current rules, it is unclear whether it is the
practitioner or some other triggering event, such as engaging in
``practice'' or ``preparation,'' that determines when an entry of
appearance is required. While the final rule makes no changes to the
actions practitioners take to become the practitioner of record--
namely, the requirement to enter an appearance on Form EOIR-27 or Form
EOIR-28--it does remove any reference to ``represented'' in order to
eliminate any perception that all acts constituting ``practice,''
``preparation,'' or ``representation'' determine the entry of such
appearance. The final rule revises 1003.17(a) and 1003.38(g) to make
clear that practitioners become practitioners of record, regardless of
whether they are engaging in ``practice'' or ``preparation'' or
otherwise meeting the definition of ``representation,'' when they seek
authorization to and wish to take on the responsibilities and
obligations of that role, which includes appearing at hearings, filing
documents on behalf of a noncitizen, and accepting service on behalf of
a noncitizen. Practitioners are not authorized to engage in these
activities or have these obligations unless they have entered an
appearance on Form EOIR-27 or Form EOIR-28.
2. Entry of Limited Appearance for Document Assistance
When a practitioner's services to a pro se noncitizen are limited
to document assistance, and they are not practitioner of record before
the immigration court or the BIA, practitioners are required to enter a
limited appearance on Form EOIR-60 or Form EOIR-61. See generally 8 CFR
1003.17(b), 1003.38(g)(2). ``Document assistance'' is described at
1003.17(b) (and in 1003.38(g)(2) with some minor variation) as
``assistance to a pro se respondent with the drafting, completion, or
filling in of blank spaces of a specific motion, brief, form, or other
document or set of documents intended to be filed'' with the
immigration court or BIA. Regardless of whether the practitioners'
document assistance constitutes ``practice'' or ``preparation,''
practitioners must complete the applicable entry of appearance form for
a limited appearance when they provide any document assistance. See id.
While discussing available forms of relief based on a particular
noncitizen's circumstances and providing legal advice about how to
complete an application for relief to be filed at an immigration court
constitute ``practice,'' such actions would not necessarily constitute
document assistance unless the practitioner also assisted with
drafting, completion, or filling in the applications for relief. In
addition to submitting the Form EOIR-60 or Form EOIR-61, practitioners
who have
[[Page 56251]]
engaged in document assistance are required to complete the ``preparer
section'' of any form for which assistance was provided and to disclose
that they drafted a document, such as a motion or brief, by placing
their name and signature on the document. 8 CFR 1003.17(c),
1003.38(g)(3). A limited appearance form is only required when
providing document assistance to a pro se noncitizen, and it is not
required of the practitioner of record who has already submitted a Form
EOIR-27 or EOIR-28.
3. Scope of Conduct: ``Practice'' and ``Preparation''
As described above, the Department received many comments
expressing concern that the proposed rule's definitions of ``practice''
and ``preparation'' could dissuade practitioners from entering
appearances to assist pro se noncitizens. The Department acknowledges
that the NPRM's definitions of ``practice'' and ``preparation,'' when
read in conjunction with the NPRM's requirements for entry of an
appearance, had the unintended consequence of causing confusion about
the type of conduct that requires an entry of appearance, for both
limited appearances for document assistance and to become the
practitioner of record, whether for removal proceedings, custody
proceedings, or both. Therefore, the final rule does not rely on these
definitions for determining when an entry of appearance is required for
either a limited appearance or to become the practitioner of record.
See, e.g., 8 CFR 1003.17(a), (b). Nonetheless, the final rule clarifies
and simplifies the definitions of ``practice'' and ``preparation''
because these definitions explain the kind of conduct in which only
practitioners can engage (i.e., practice), and the kind of conduct in
which both practitioners and non-practitioners can engage (i.e.,
preparation). Despite the difference between the terms, the Department
makes clear in the final rule that practitioners who engage in any
document assistance, whether ``practice'' or ``preparation,'' must
complete a Form EOIR-60 or EOIR-61. See 1003.17(b), 1003.38(g)(2).
a. ``Practice''
Commenters voiced concern with the NPRM's definition of
``practice'' and the interaction of that definition with the proposed
rule's entry of appearance requirements. They expressed concern that
the terms ``exercise of legal judgment'' and ``legal advice'' in the
NPRM's definition of ``practice'' indicated that nearly any action a
practitioner takes on behalf of a noncitizen would require an entry of
appearance. Specifically, they indicated that this broad definition of
``practice'' could cause any form of education, orientation, or
discussion with a pro se noncitizen to be considered ``practice'' and
to trigger the obligation to file an entry of appearance. They also
asserted that some conduct that was described as ``practice'' should
not require entry of an appearance.\6\
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\6\ For example, some commenters expressed apprehension that the
proposed rule would end ``Friend of the Court'' programs, in which
participants assist the immigration court in person without entering
an appearance by providing information about particular noncitizens.
Contrary to this claim, the final rule does not affect the ability
of a person to appear as amicus curiae in immigration proceedings
because amicus curiae appear as an aid to the court and not as a
practitioner. See EOIR Director's Memorandum 22-06, Friend of the
Court, May 5, 2022, available at <a href="https://www.justice.gov/eoir/page/file/1503696/download">https://www.justice.gov/eoir/page/file/1503696/download</a>.
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As described above, although some actions constituting ``practice''
may require the entry of an appearance, the final rule does not rely on
the definition of ``practice'' in determining when an appearance must
be filed. The final rule revises 1003.17(a) and 1003.38(g) to make
clear that practitioners become the practitioners of record, pursuant
to the filing of a Form EOIR-27 or Form EOIR-28, when they seek
authorization to take on the responsibilities and obligations of that
role, which includes appearing at hearings, filing documents on behalf
of a noncitizen, and accepting service on behalf of a noncitizen. The
final rule further clarifies that the entry of a limited appearance
pursuant to the filing of a Form EOIR-60 or EOIR-61 is required only
when a practitioner is engaged in document assistance--described in
1003.17(b) as ``assistance to a pro se respondent with the drafting,
completion, or filling in of blank spaces of a specific motion, brief,
form, or other document or set of documents intended to be filed''--
with the immigration court or BIA. Thus, a limited appearance must
accompany any document assistance provided by a practitioner that is at
least ``preparation,'' regardless of whether it may also constitute
``practice.'' 8 CFR 1003.17(b), 1003.38(g)(2).
The final rule does not adopt the language from the NPRM for the
definition of ``practice.'' See 85 FR at 61651. Instead, it defines
``practice'' as ``exercising professional judgment to provide legal
advice or legal services related to any matter before EOIR,'' with a
non-exhaustive description of conduct that constitutes practice in
order to further clarify the meaning of this language. 8 CFR 1001.1(i).
The description in the final rule includes a range of conduct: giving
legal advice, drafting and filing documents on behalf of another person
before EOIR, and appearing in person on behalf of another person before
EOIR. Id. Based on that description of conduct, examples of
``practice'' include, but are not limited to, the following actions if
taken by a practitioner: engaging in a consultation with an individual
about forming an attorney-client relationship for assistance in
immigration proceedings, or otherwise providing legal advice;
discussing available forms of relief based on a particular noncitizen's
circumstances; providing legal advice about how to complete an asylum
application to be filed at an immigration court; drafting a motion to
reopen on behalf of a noncitizen that is intended to be filed with the
BIA; and appearing before an immigration judge in person on behalf of a
noncitizen in removal proceedings.
The rule maintains a broad definition of ``practice'' for a
specific reason: all practitioner conduct that constitutes
``practice''--not just conduct that requires entry of an appearance--
may be subject to EOIR's Rules of Professional Conduct and state rules
regulating attorney conduct. See, e.g., 8 CFR 1003.101. For example,
practitioners may be in violation of the EOIR Rules of Professional
Conduct or state rules for providing a noncitizen with erroneous advice
regarding the available forms of relief that the noncitizen relied on
to their detriment. Therefore, practitioners should be mindful that
even if entry of an appearance is not required, their actions might
nonetheless be subject to other provisions of the regulations or other
rules.
As discussed above, the terms ``practice'' and ``preparation'' do
not determine when an appearance must be entered to become the
practitioner of record; practitioners may engage in some conduct
constituting ``practice'' or ``preparation'' without having to enter an
appearance to become the practitioner of record. Moreover, even if
engaging in ``practice'' or ``preparation,'' the practitioner may only
be required to enter a limited appearance if such conduct constitutes
document assistance as described in 1003.17(b) and 1003.38(g)(2). For
example, if a practitioner is leading a legal orientation session to a
group of pro se noncitizens, and in doing so, merely explains available
forms of immigration relief to them, the practitioner is not required
to enter an appearance of any kind. However, if a practitioner assists
a pro
[[Page 56252]]
se noncitizen in drafting an asylum application after the presentation
concludes, the practitioner must enter a limited appearance.
b. ``Preparation''
Commenters indicated that the proposed rule's definition of
``preparation'' could result in practitioners not providing assistance
to pro se noncitizens. They suggested that the definition could
discourage practitioners from taking any action that constitutes
``preparation'' that could also be considered ``practice'' (i.e., the
``exercise of professional judgment'' or ``provision of legal advice''
in identifying and completing forms) and thus, require entry of an
appearance under the NPRM's definitions. For example, commenters stated
that they would be less willing to ask basic questions of noncitizens
to assist them in completing forms or to solicit information in order
to guide them in selecting applications for relief, if it would require
an entry of appearance as practitioner of record and bind them to
further obligations to the noncitizen or EOIR.
The final rule does not adopt the language of the proposed rule and
retains part of the language of the existing regulatory definition of
``preparation,'' stating that ``preparation'' consists ``solely of
filling in blank spaces on printed forms.'' \7\ The rule makes clear
that such action does not include the ``exercise of professional
judgment to provide legal advice or legal services''; instead, the
provision of legal advice or services is included under the definition
of ``practice,'' to explicitly distinguish ``preparation'' from
``practice.'' See 8 CFR 1001.1(i), (k).
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\7\ Additionally, in response to commenters' request, the final
rule removes references to the Department of Homeland Security (DHS)
in the ``preparation'' definition, as DHS is a separate agency with
its own definitions. See 8 CFR 1.2. The final rule retains existing
pre-NPRM regulatory language regarding non-practitioner preparation
and the requirement that any fees for such assistance be nominal and
that the non-practitioner cannot hold themselves out as qualified in
legal matters or immigration or naturalization procedures. See 8 CFR
1001.1(k).
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The Department believes that the commenters' concerns have been
sufficiently addressed. As noted, supra, an entry of appearance to
become the practitioner of record and to seek authorization to take on
the associated responsibilities and obligations is not dictated by the
terms ``practice'' or ``preparation.'' The entry of limited appearances
for document assistance does not bind practitioners to provide further
assistance, which should encourage rather than deter practitioners from
providing assistance to noncitizens.\8\ While a practitioner will
always be required to enter a limited appearance when engaged in
``preparation'' (i.e., the ministerial act of filling in the blanks of
printed forms), doing so does not bind the practitioner to further
obligations to the noncitizen or EOIR. Even if practitioners engage in
``practice'' when providing document assistance, they are only required
to enter a limited appearance per a Form EOIR-60 or EOIR-61.
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\8\ Some commenters indicated that it is unfair to require only
practitioners engaging in ``preparation'' to complete an entry of
limited appearance form if non-practitioners engaging in the exact
same conduct are not obligated to do so. The Department disagrees.
Practitioners have specific legal and ethical obligations due to
their status as practitioners. Indeed, the final rule requires
completion of a Form EOIR-60 or EOIR-61 in order to have the
practitioner attest that they understand that EOIR's Rules of
Professional Conduct govern their conduct. See Forms EOIR-60 and
EOIR-61. Non-practitioners are limited to engaging in conduct that
is exclusively ``preparation,'' which is a narrow segment of conduct
because the preparation of most forms requires engaging in
``practice.'' Moreover, non-practitioners engaging in preparation of
forms are still required to complete the preparer section of the
forms, when applicable. EOIR's Fraud and Abuse Prevention Program
will continue to be investigate reports of non-practitioners
engaging in services beyond those authorized (i.e., engaging in the
unauthorized practice of law), including those kinds of conduct
defined as ``practice'' in this rule. See EOIR, Fraud and Abuse
Prevention Program, available at <a href="https://www.justice.gov/eoir/fraud-and-abuse-prevention-program">https://www.justice.gov/eoir/fraud-and-abuse-prevention-program</a> (last updated Mar. 4, 2020).
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For example, practitioners, without further obligation, may
permissibly assist a pro se noncitizen in completing a change of
address form (Form EOIR-33) and engage in ``preparation,'' provided
that the practitioner completes a limited appearance form.\9\ Without
further obligation to become the practitioner of record, practitioners
may also assist pro se noncitizens in completing asylum applications
and provide legal advice on how to present claims on the form, even
though they are engaging in ``practice'' and ``preparation.''
Practitioners doing so are required to complete a Form EOIR-60 or EOIR-
61 to be filed with the application and to complete the preparer
section of the form. Conversely, if a practitioner is merely reading an
administrative form to the applicant, in English or in the applicant's
primary language, an entry of appearance would not be required.
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\9\ The Form EOIR-60 and Form EOIR-61 are estimated to take no
more than 6 minutes to complete.
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4. Form EOIR-60 and Form EOIR-61
In contemplating changes to the manner of entry of appearance forms
as suggested by the proposed rule, some commenters stated that
completing an additional appearance form for actions that did not
previously require an appearance form is too burdensome, especially
when they must also complete the ``preparer section'' of a form. After
careful deliberation, the Department determined that the informational
needs of requiring such disclosure far outweigh the burden imposed on
practitioners.
The goals of this rulemaking include providing greater flexibility
to practitioners to be able to assist noncitizens appearing pro se
before EOIR; providing increased access to legal assistance for such
noncitizens, while adding protections to reduce the risk of individuals
being victimized by ``ghostwriting'' and fraud; and ensuring
practitioners are abiding by EOIR's Rules of Professional Conduct. The
Department determined that identification of practitioners through the
submission of an entry of limited appearance form, plus the additional
requirements regarding the ``preparer section'' on forms and disclosure
of assistance on other documents through name and signature, will
reduce the risk to the public of unscrupulous individuals that
currently prey on vulnerable noncitizens through ``ghostwriting.'' For
example, the Department believes that, by increasing flexibility for
practitioners who wish to provide varying types of assistance to
noncitizens in proceedings before EOIR, the pool of individuals engaged
in legitimate practices and available to assist noncitizens will
expand, leaving less room for bad actors. Such requirements will also
hold practitioners accountable for the document assistance they perform
pursuant to the final rule.
Ghostwriting is a practice that occurs when an unidentified
individual, whether a practitioner or non-practitioner, assists a
noncitizen with or drafts pleadings, applications, petitions, motions,
briefs, or other documents that are filed with EOIR. Ghostwritten
documents can contain false or fraudulent information, sometimes
unbeknownst to the noncitizen, and often present substandard,
incomplete, inaccurate, or boilerplate work products. Ghostwriting is
often a means for unscrupulous or unqualified individuals and other bad
actors to deceive and mislead noncitizens and EOIR or, with the
acquiescence of noncitizens, ghostwriting may be a means to perpetuate
fraud and undermine proceedings.
As described in the NPRM, ghostwriting is harmful to parties and
undermines the integrity of proceedings, candor to the tribunal, and
[[Page 56253]]
accountability. See 85 FR at 61647; see also, e.g., Villagordoa Bernal
v. Rodriguez, No. 16-cv-152-CAS, 2016 WL 3360951, at *7 (C.D. Cal. June
10, 2016) (``[T]he parties are reminded that ghostwriting of pro se
filings is, of course, inappropriate and potentially sanctionable
conduct.'') (citing Ricotta v. Calif., 4 F. Supp. 2d 961, 986 (S.D.
Cal. 1998))); Tift v. Ball, No. 07-cv-276-RSM, 2008 WL 701979, at *1
(W.D. Wash. Mar. 12, 2008) (``It is therefore a violation for attorneys
to assist pro se litigants by preparing their briefs, and thereby
escape the obligations imposed on them under Rule 11.''); Laremont-
Lopez v. SE Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79
(E.D. Va. 1997) (explaining that ghostwriting causes confusion
regarding representation, interferes with the administration of
justice, constitutes a misrepresentation to the court under Rule 11,
and while ``convenient for counsel,'' disrupts the proper conduct of
proceedings).
Importantly, under the final rule, allowing practitioners to enter
an appearance for document assistance without further obligation to act
on behalf of a pro se noncitizen should expand noncitizens' access to
practitioner assistance. Indeed, commenters indicated that they would
be able to provide more services to noncitizens if limited appearances
for document assistance were permitted. Unqualified or unethical
individuals and other bad actors should have a reduced ability to
operate in immigration proceedings through ``ghostwriting'' because
practitioners who may have been dissuaded from providing assistance if
they could not limit their role to document assistance will be more
willing to engage in a limited appearance, thereby furthering the
ability of noncitizens to find authorized and competent practitioners
who are willing to identify themselves and provide assistance.
Identification will also enable noncitizens, EOIR, and other
authorities to hold practitioners accountable for the quality and
substance of the limited documentary assistance work they perform.
These benefits far outweigh the burdens of having to complete the
entry of a limited appearance form, which is estimated to take only 6
minutes to complete, and the other disclosure requirements of the final
rule. See infra Section V.H. Paperwork Reduction Act of 1995 (further
explaining the benefits of these regulatory changes). Indeed, as
described below, the new limited appearance forms are less burdensome
than the revisions to the appearance forms the Department proposed in
the NPRM. In contrast to the originally proposed forms, the new Forms
EOIR-60 and Form EOIR-61 do not include the proposed information
collection that would have required signature by the noncitizen and
disclosure of fees charged by a practitioner.
Given the benefits of identifying practitioners who provide only
document assistance before EOIR, the Department agrees with the
commenters that separate appearance forms for the entry of a limited
appearance are more appropriate than attempting to modify the existing
appearance forms to capture this unique type of appearance. Further,
the Department recognizes that revising the Form EOIR-27 and Form EOIR-
28 to encompass substantially different circumstances could cause
confusion over the practitioner's representation status. Thus, the
Department created the Form EOIR-60 and Form EOIR-61 for practitioners'
entry of a limited appearance rather than revising Form EOIR-27 and
Form EOIR-28. These new forms provide the most efficient means for EOIR
to track the identity of practitioners who have entered a limited
appearance for document assistance, as distinct from those who have
entered an appearance as practitioner of record.
Some commenters indicated that the Department did not allow the
public an opportunity to comment on the draft forms contemplated for
limited appearances. Pursuant to the Paperwork Reduction Act of 1995,
agency discussion of the information collection and the provision of
instructions for providing public comments in the associated rulemaking
is sufficient to provide the required public notice. See 44 U.S.C.
3506(c)(2)(A) (listing considerations for which an agency must solicit
public comment on proposed information collections). The NPRM contained
such information and described the intended changes to the Forms EOIR-
27 and EOIR-28. See 85 FR at 61647. However, after consideration of the
public comments that recommended separate forms for entering a limited
appearance in balance with the agency's needs, the Department decided
to proceed in line with that recommendation. In order to provide the
public with the opportunity to comment on that decision, the Department
published a 60-day notice in the Federal Register on August 30, 2021,
that the Department was inviting public comments ahead of its
submission to the Office of Management and Budget for review and
approval. See 86 FR 48443. The public comment period closed on October
29, 2021. No public comments were received.
5. Requirements of Form EOIR-60 and Form EOIR-61
When a Form EOIR-60 or Form EOIR-61 is completed, the final rule
provides that it must not be filed as a standalone document. 8 CFR
1003.17(b)(1), 1003.38(g)(2)(i). Rather, a single Form EOIR-60 or Form
EOIR-61 must be filed with the immigration court or the BIA,
respectively, with the document on which a practitioner has provided
assistance. If a practitioner prepares, drafts, or completes a set of
documents that are filed together, a single Form EOIR-60 or Form EOIR-
61 may be completed to accompany that set of documents. Id. As provided
in this rule, the practitioner must also complete the preparer section
of any forms, if applicable, and must identify the practitioner by name
and signature on any motions or briefs being submitted. 8 CFR
1003.17(c), 1003.38(g)(3). Noncitizens may file the entry of a limited
appearance and assisted documents themselves or may arrange for an
individual, such as the practitioner who assisted, to file the
documents in accordance with EOIR filing policies. See, e.g., EOIR,
Immigration Court Practice Manual Ch. 3.1(a), available at <a href="https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual">https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual</a>
(last updated Dec. 16, 2021) (explaining how documents may be filed
with EOIR, either through the U.S. Postal Service or by courier, or
electronically where permitted and/or required, and that ``[h]and-
delivered filings should be brought to the Immigration Court's public
window during that court's filing hours''). After any such initial
filing of a document or set of documents with a Form EOIR-60 or EOIR-
61, a subsequent filing of a document or set of documents in which a
practitioner provided document assistance must be accompanied by a
separate Form EOIR-60 or Form EOIR-61. 8 CFR 1003.17(b)(1),
1003.38(g)(2)(i).
The Form EOIR-60 and Form EOIR-61 requires the practitioner to
provide the following data: practitioner's name; contact information;
bar number (``BAR#'') or EOIR identification number (``EOIR ID#''),\10\
as applicable; and a
[[Page 56254]]
description of the underlying document(s) for which assistance was
provided. The practitioner's signature attests that they explained the
scope of their limited assistance to the pro se noncitizen,\11\ that
they are an authorized and qualified ``practitioner,'' and that they
understand that they are bound by EOIR's Rules of Professional Conduct.
The Department has taken steps to minimize any burden imposed on
practitioners by deleting the ``certification by the pro se
respondent'' and ``fees charged'' fields as proposed by the NPRM. See
85 FR at 61645. The Department agrees with commenters that the
information regarding fees is unnecessary because such information is
not captured on the Form EOIR-27 or Form EOIR-28 and because excessive
or unethical legal fees are regulated through EOIR's Rules of
Professional Conduct and similar state rules and standards. The
Department estimates that the Forms EOIR-60 or EOIR-61 are expected to
take no more than 6 minutes to complete.
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\10\ In response to a commenter's question regarding
registration to practice before EOIR, the regulations at 8 CFR
1292.1(f) already authorize the registration of ``attorneys and
accredited representatives . . . as a condition of practice before
immigration judges or the Board of Immigration Appeals.'' Under the
registration procedures established pursuant to these regulations,
practitioners who are attorneys or accredited representatives are
already required to complete the electronic registration process
prior to entering an appearance before EOIR, regardless of whether
that appearance is limited to providing document assistance.
\11\ Relatedly, the Department is cognizant of potential
difficulties raised by the public in completing document assistance
with noncitizens who are detained. However, those difficulties exist
independently of the final rule. In fact, if a practitioner is able
to provide underlying document assistance to a detained noncitizen,
then they will be able to explain the scope of their limited
appearance--as required by the attestation on the Form EOIR-60 and
EOIR-61--at the same time. Similar to the current entry of
appearance forms EOIR-27 and EOIR-28, the noncitizen's signature is
not required on the EOIR-60 and EOIR-61, further minimizing the
burden of entering a limited appearance.
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6. Noncitizen Retains Pro Se Status
In cases where a practitioner enters a limited appearance for
document assistance, the noncitizen remains pro se and unrepresented in
the EOIR proceedings. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii).
Through the submission of the Form EOIR-60 or Form EOIR-61, the
practitioner is not transformed into the practitioner of record, and
thus, is not required to appear in immigration court or before the BIA
on the noncitizen's behalf, will not receive service of process of any
case filings, and will not be provided with access to the record of
proceedings.\12\ See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii).
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\12\ Commenters urged that access to the record of proceedings
should be allowed for practitioners entering limited appearances.
However, the Department decided that existing access procedures
properly balance access with security and confidentiality and should
remain unchanged given the discrete scope of a limited appearance
for document assistance. This is particularly so, given that
practitioners engaging in limited appearances do not have the same
obligations as those intending to be practitioner of record. Thus,
the final rule makes no changes to existing record of proceedings
access procedures. See, e.g., EOIR, Immigration Court Practice
Manual, Ch. 1.6(c) (last updated Feb. 14, 2022) (explaining access
procedures). Alternatively, practitioners who are not the
practitioner of record in a case may obtain the record of proceeding
from the noncitizen--who may make an electronic request by email
directly to the immigration court or BIA for a copy--or
practitioners may submit a Freedom of Information Act (FOIA) request
to EOIR that includes signed written consent from the noncitizen who
is the subject of the record of proceeding. See e.g., id., at Ch.
12.2 (describing the process for making a request directly with the
immigration court or BIA or through the FOIA process).
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B. Rules of Professional Conduct
Many commenters indicated that the NPRM's proposed revisions to the
disciplinary rule, 8 CFR 1003.102(t), to delete the ``pattern or
practice'' requirement, and instead include language that indicates
that failure to file an appearance form even one time could result in
disciplinary action, is problematic because a single mistake should not
be sufficient to institute disciplinary action. Moreover, they raised
concerns regarding the proposed revisions to 8 CFR 1003.102(u), which
would penalize the drafting of documents that are later filed with
EOIR. Commenters stated that, due to the proposed provision's ambiguity
about the scope of ``drafting,'' disciplinary action could be based on
templates or example briefs that organizations provide to pro se
noncitizens but are completed later in time without the assistance of a
practitioner. Practitioners are concerned that they could be
disciplined for substandard quality of such filings when they did not
actually assist in completing them.
The Department agrees that 8 CFR 1003.102(t) should include
language to clarify that a single instance of failing to file an
appropriate entry of appearance form does not lead to disciplinary
action. Therefore, the final rule amends 8 CFR 1003.102(t) to allow
discipline of any practitioner who ``repeatedly'' fails to sign and
file the appropriate entry of appearance form. ``Repeatedly,'' rather
than ``pattern or practice,'' is an easily understood standard that is
used for other grounds for discipline. See 8 CFR 1003.102(l)
(``[r]epeatedly fails to appear . . .''); 1003.102(u) (``[r]epeatedly
files notices, motions, briefs, or claims that reflect little or no
attention to the specific factual or legal issues . . .'').
``Repeatedly'' serves to clarify that only a practitioner who fails to
file the proper appearance form on more than one occasion is subject to
discipline. Additionally, based on the changes in this final rule--to
both the definitions of ``practice'' and ``preparation'' and the
provisions of 8 CFR 1003.17 and 1003.38--references to ``practice'' and
``preparation'' in the current 8 CFR 1003.102(t) have been removed as
unnecessary to effectively describe the conduct subject to disciplinary
action.\13\
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\13\ The terms ``practice'' and ``preparation'' as included in
current 8 CFR 1003.102(t) were, in part, the subject of a Federal
lawsuit, Northwest Immigration Rights Project (NWIRP) v. Garland,
No. 2:17-cv-00716 (W.D. Wash.). To the extent commenters have raised
concerns that the proposed rule violates a Settlement Agreement
entered in that litigation, such concerns are unfounded as the final
rule satisfies the aims of the Settlement Agreement. See generally
Notice of Settlement and Filing of Settlement Agreement, NWIRP v.
Barr, No. 2:17-cv-00716 (W.D. Wash. Apr. 17, 2019) (permitting
Department to aim to promulgate regulations allowing practitioners
to provide pro se noncitizens with document assistance without
requiring practitioner to enter appearance as practitioner of record
and to require identification of such practitioners to EOIR with the
option of disciplinary procedures for failing to do so).
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The final rule also amends 8 CFR 1003.102(u) to subject
practitioners to discipline if they repeatedly ``draft'' notices,
motions, briefs or claims that are filed with DHS or EOIR that rely on
boilerplate language and reflect little or no attention to the specific
facts or legal issues applicable to a client's case. This ground of
discipline currently focuses on practitioners who repeatedly ``file''
such documents. See 65 FR 39526, June 27, 2000, as amended at 73 FR
76923, Dec. 18, 2008, 81 FR 92362, Dec. 19, 2016 (8 CFR 1003.102(u)).
Given that practitioners can permissibly draft documents for pro se
noncitizens under the changes to the final rule that permit a limited
appearance for document assistance, the Department determined that it
is necessary to amend this ground to hold practitioners accountable for
the quality of their assistance on such documents. 8 CFR 1003.102(u).
The applicability of this provision should not depend on whether
documents drafted by a practitioner under this rule are ``filed'' by
the practitioner or are ``filed'' by the noncitizen after receiving the
practitioner's documentary assistance.
Commenters' concern about being subject to discipline for documents
completed and filed by pro se noncitizens without practitioner
assistance is unfounded. The use of template documents or form
pleadings, drafted by a practitioner but later completed and filed by
pro se noncitizens who add case-specific information without any
assistance by the practitioner, need not be accompanied by a Form EOIR-
60 or Form EOIR-61 or the practitioner's name and signature. Because
the practitioner who created the template or form pleading did not
provide
[[Page 56255]]
assistance with the drafting of the case-specific content of the
document filed by the noncitizen, the practitioner would not be
responsible for such document.\14\
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\14\ However, the template itself or the provision of such a
template may implicate other disciplinary rules depending on the
facts and circumstances. For example, if the template is legally
deficient in some manner, disciplinary rules may be at issue.
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Further, the final rule creates a separate ground for discipline at
8 CFR 1003.102(w), which requires practitioners to sign documents in
conformity with EOIR rules and any form instructions. This provision
builds on and provides further clarity to the prohibition on
practitioners failing to sign pleadings, applications, motions, or
other filings that was previously included at 8 CFR 1003.102(t)(2).
C. Miscellaneous Changes
Finally, the final rule makes changes to 8 CFR 1003.2 and 1003.3 to
include references to when the new entry of appearance form, Form EOIR-
60, must be utilized in filings regarding reopening before the BIA and
when the form must be filed with a Notice of Appeal before the BIA,
respectively. This clarification is necessary to inform practitioners
that any document assistance with respect to filings regarding
reopening before the BIA or a Notice of Appeal before the BIA falls
under the scope of 8 CFR 1003.38 and thus requires an entry of
appearance.
Additionally, the final rule moves (without change) the definition
of the term ``practitioner'' from EOIR's Rules of Professional Conduct,
see 8 CFR 1003.101(b), to the list of generally applicable definitions
section. The Department is moving this term for clarity since the
provisions at 8 CFR 1003.17 and 1003.38 regarding entry of appearances
apply to all types of practitioners.
IV. Notice-and-Comment Requirements
The NPRM provided for a 30-day notice and comment period as
required pursuant to 5 U.S.C. 553. The proposed rule provided
sufficient detail and rationale to permit interested parties to comment
meaningfully. Indeed, the Department received a number of substantive
comments recommending changes to the rule that have, in fact, been
adopted in certain respects. For example, pursuant to the public input
received, the final rule eliminates the proposed requirements to
disclose fees and obtain a signed written attestation from the
noncitizen and creates separate forms for entering a limited
appearance. Despite the discussion of the relevant issues in the NPRM,
some commenters contended that the 30-day comment period for this rule
was insufficient because there were significant equities at stake, this
rule was not time-sensitive, and the COVID-19 pandemic made it
difficult to respond properly to the proposed rule on a short
timeframe.
While the APA does not require a minimum specific length of time
for the comment period, the Department believes the 30-day comment
period was clearly sufficient given the limited set of issues addressed
in the NPRM and the volume and detail of comments received. See 5
U.S.C. 553(b), (c). Moreover, the Department provided an additional 60-
day notice and comment period to comment on the proposed entry of
limited appearance Forms EOIR-60 and EOIR-61, which reflected that the
disclosure of fees and attestation from the noncitizen were not being
required. No comments were received regarding those forms during that
comment period.
The revisions to ``practice'' and ``preparation,'' at 8 CFR
1001.1(i) and (k), maintain the general framework of the definitions in
the proposed rule, and also provide additional clarity about their
scope. The changes to the regulatory text are within the scope of the
notice provided by the NPRM, and the adopted changes are consistent
with the public comments received. Therefore, the final rule is a
logical outgrowth of the proposed agency action described in the NPRM
See, e.g., Environmental Defense Center v. U.S. E.P.A., 344 F.3d 832,
851-52 (9th Cir. 2003); American Water Works Ass'n v. E.P.A., 40 F.3d
1266, 1274 (D.C. Cir. 1994). Thus, the purpose of the NPRM was
adequately stated and the interested parties could reasonably have
anticipated the final rulemaking from the NPRM and the comments
received.
V. Regulatory Requirements
A. Administrative Procedure Act
This final rule is being published with a 60-day delayed effective
date, greater than the minimum 30-day period required by the
Administrative Procedure Act. 5 U.S.C. 553(d).
B. Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. Though many
practitioners may qualify as small entities under the Regulatory
Flexibility Act, the burdens of this rule will typically be limited to
the submission of forms identifying their personal participation, a
requirement estimated to require 6 minutes of time in each instance.
Practitioners who wish to represent noncitizens in person as
practitioner of record in immigration proceedings are already required
to submit a Form EOIR-27 or EOIR-28, and all individuals who prepare an
application form or other form for a noncitizen are already required to
disclose such preparation if the form requires it. This rule will
require practitioners who provide document assistance to noncitizens to
submit a Form EOIR-60 or EOIR-61, if they elect not to become the
practitioner of record to represent them in EOIR proceedings. However,
most, if not all, such practitioners are well-versed in submitting a
similar Form EOIR-27 or EOIR-28 for entry of appearance in cases in
which they do represent a noncitizen in proceedings before EOIR. The
new Forms EOIR-60 or EOIR-61 are similar in nature to the existing
appearance forms, and therefore, should be simple to complete. They are
not expected to take more than 6 minutes to complete and will only
involve providing information that the practitioner providing
assistance already knows well--i.e., their own contact information and
identification of the documents they assisted with.
The Department has also determined that the needs of requiring such
disclosure far outweigh the burden imposed on practitioners. The goals
of this rulemaking include providing greater flexibility to
practitioners to be able to assist noncitizens appearing pro se before
EOIR and increasing access to legal assistance for such noncitizens
because practitioners who may have been dissuaded from providing
assistance if they could not limit their role to document assistance
will be more willing to engage in a limited appearance. The Department
expects that this rulemaking will increase the number of competent
practitioners willing to identify themselves to EOIR. These changes, in
turn, will likely diminish the risk of individuals being exploited by
unaccountable ``ghostwriting'' because unqualified and unethical
individuals should have a reduced ability to operate in immigration
proceedings. Finally, the enhanced identification provisions of the
rulemaking will ensure that practitioners are abiding by EOIR's Rules
of Professional Conduct by allowing EOIR to hold practitioners
accountable for the quality and substance of their work.
In order to achieve these goals, EOIR must have a means of
accurately
[[Page 56256]]
identifying practitioners providing document assistance under the terms
of this rule. The Department recognizes that requiring practitioners to
complete an entry of limited appearance form does impose a burden on
practitioners, and the Department has taken steps to minimize that as
much as possible, without sacrificing the requirements necessary to
safeguard noncitizens from unscrupulous actors. Therefore, even though
there will be an impact on practitioners, the Department believes that
the needs far outweigh the burden.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (as adjusted for inflation), and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
D. Congressional Review Act
This rule is not a major rule as defined by section 804 of the
Congressional Review Act. However, the Department will be submitting
the required reports under the Congressional Review Act to the
Government Accountability Office and to the House and Senate.
E. Executive Orders 12866 and 13563
The Office of Information and Regulatory Affairs (OIRA) has
determined that this rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866 (Regulatory Planning and Review).
Accordingly, this rule has been submitted to the Office of Management
and Budget (OMB) for review. This rule has been drafted and reviewed in
accordance with Executive Order 12866's section 1(b), Principles of
Regulation, and in accordance with section 1(b) of Executive Order
13563 (Improving Regulation and Regulatory Review), General Principles
of Regulation.
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility.
As discussed above, practitioners who wish to act as practitioner
of record for noncitizens in person in immigration proceedings are
already required to submit Form EOIR-27 or EOIR-28 and all individuals
who prepare an application form for a noncitizen are already required
to disclose such preparation if the form requires it. Although this
rule will require practitioners who provide document assistance to
noncitizens but elect not to become the practitioner of record to
represent them in court, to submit a Form EOIR-60 or EOIR-61, most, if
not all, such practitioners are well-versed in submitting a similar
Form EOIR-27 or EOIR-28 for cases in which they represent a noncitizen
in proceedings before EOIR.
Moreover, the limited appearance form, which substantially mirrors
existing forms, will not add any significant time burden. The new Forms
EOIR-60 or EOIR-61 are similar in nature to the existing appearance
forms and are not expected to take more than 6 minutes to complete.
They only involve providing information that the practitioner providing
assistance already knows well--i.e., their own contact information and
basic details about the limited appearance by identifying the documents
for which they provided assistance. Any costs to practitioners will be
solely in relation to completing the limited appearance form and
explaining the scope of their assistance to the noncitizen. The
practitioner may, but is not required to, separately serve the form on
DHS or EOIR. Rather, the practitioner may provide the form to the pro
se noncitizen for them to file and serve with the underlying document.
Thus, for the reasons explained above and in the NPRM, the expected
costs of this rule are likely to be de minimis.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the Federal government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Department has determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act of 1995
The Department of Justice, through EOIR, has submitted an
information collection request to OMB for review and clearance in
accordance with review procedures of the Paperwork Reduction Act of
1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing
regulations, 5 CFR part 1320. The Department, through EOIR, previously
submitted this rulemaking, including a request for a new information
collection (ICR Ref. No. 202111-1125-001), to the Office of Management
and Budget (OMB) for review and approval in accordance with the
Paperwork Reduction Act of 1995. This proposed information collection
was previously published in the Federal Register at 86 FR 48443 (Aug.
30, 2021), allowing for a 60-day comment period. OMB assigned OMB
Control Number 1125-0021 to this collection. Further comments are
encouraged and will be accepted for 30 days from the date of
publication of this rulemaking. Written comments and recommendations
for the proposed information collection should be sent within 30 days
of publication of this notice to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information collection by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function.
The Department received comments related to the proposed
information collections associated with this rulemaking. In the
proposed rule, the Department stated that it would revise Form EOIR-26,
Notice of Appeal from a Decision of an Immigration Judge; Form EOIR-27;
and Form EOIR-28, to allow for limited appearances as contemplated in
this rule. See 85 FR at 61650. However, after further deliberation, the
Department has decided to pursue a new information collection request
(ICR) containing two new standalone forms for limited appearances
related to document assistance for pro se noncitizens. The Department
appreciates commenters' recommendation that the Department create
separate forms for the entry of a limited appearance before the
immigration courts and the BIA. The commenters' concerns that amending
the existing entry of appearance forms would cause confusion that could
lead to the misuse of the collection were valid. Thus, EOIR has created
the Forms
[[Page 56257]]
EOIR-60, Notice of Entry of Limited Appearance for Document Assistance
Before the Board of Immigration Appeals, and EOIR-61, Notice of Entry
of Limited Appearance for Document Assistance Before the Immigration
Court. The forms will be made available on EOIR's website, in a
fillable .pdf format. This rule implements new requirements for
practitioners to enter a limited appearance when assisting a pro se
noncitizen with documents intended to be filed with EOIR. This
information collection is necessary to allow a practitioner to notify
the BIA or the Immigration Court that the practitioner is entering a
limited appearance to assist a pro se noncitizen with a legal filing or
other document intended to be filed with EOIR. In completing the form,
practitioners must confirm that they have explained the scope of their
limited assistance to the noncitizen and the form must be filed with
the associated documents. The form creates no continuing obligation on
the part of the practitioner, and because of this, a new form must be
filed with each document submission. EOIR currently uses appropriate
information technology to reduce burdens and improve data quality,
agency efficiency, and responsiveness to the public. Under this rule,
EOIR will continue to do so to the maximum extent practicable and will
explore implementing technology to facilitate information collections.
Under the current regulation, it is estimated that it takes a total
of 6 minutes to complete an entry of appearance form. At this time, it
is difficult for EOIR to estimate the total receipts it will receive
for this new collection. Pursuant to the NPRM, EOIR estimated the total
receipts would be at least as many receipts as received for the other
two forms for the entry of appearance before the Immigration Court
(Form EOIR-28) and the Board of Immigration Appeals (Form EOIR-27).
These forms are used for practitioners who wish to appear on behalf of
a noncitizen in pending proceedings and remain the practitioner of
record to which all obligations and responsibilities attach. Forms
EOIR-28 and EOIR-27 are not used for limited appearance purposes, but
EOIR expects that at least some of those practitioners will enter
limited appearances to assist noncitizens with document filings.
Therefore, in order to not underestimate the burden, EOIR will assume
that it will receive as many entries for limited appearances as it does
for full appearances. Therefore, the total number of submissions of the
Forms EOIR-60 and EOIR-61 are expected to be 841,029 (the total
receipts for the EOIR-27 (53,816) and EOIR-28 (787,213) for FY2019 as
provided in the NPRM). The total public burden of these revised
collections is estimated to be 84,102.9 burden hours annually (for Form
EOIR-27, 53,816 noncitizens (FY 2019) x 1 response per noncitizen x 6
minutes per response = 5,381.6 burden hours) + (for Form EOIR-28,
787,213 noncitizens (FY 2019) x 1 response per noncitizen x 6 minutes
per response = 78,721.3 burden hours) = 84,102.9 burden hours).
Following the new ICR's review and approval by the Office of
Information and Regulatory Affairs (OIRA), the Department will publish
notice of the new forms in the Federal Register. Following that
publication, use of the new standalone form will be mandatory as
outlined in 8 CFR 1003.17(a)(2) and 1003.38(g)(1)(ii).
List of Subjects
8 CFR Part 1001
Administrative practice and procedure, Immigration.
8 CFR Part 1003
Administrative practice and procedure, [Noncitizens], Immigration,
Legal services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, parts 1001 and
1003 of title 8 of the Code of Federal Regulations are amended as
follows:
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.
0
2. In Sec. 1001.1, revise paragraphs (i) and (k) and add paragraph
(ff) to read as follows:
Sec. 1001.1 Definitions.
* * * * *
(i) The term practice means exercising professional judgment to
provide legal advice or legal services related to any matter before
EOIR. Practice includes, but is not limited to, determining available
forms of relief from removal or protection; providing advice regarding
legal strategies; drafting or filing any document on behalf of another
person appearing before EOIR based on an analysis of applicable facts
and law; or appearing on behalf of another person in any matter before
EOIR.
* * * * *
(k) The term preparation means the act or acts consisting solely of
filling in blank spaces on printed forms with information provided by
the applicant or petitioner that are to be filed with or submitted to
EOIR, where such acts do not include the exercise of professional
judgment to provide legal advice or legal services. When this act is
performed by someone other than a practitioner, the fee for filling in
blank spaces on printed forms, if any, must be nominal, and the
individual may not hold himself or herself out as qualified in legal
matters or in immigration and naturalization procedure.
* * * * *
(ff) The term practitioner means an attorney as defined in
paragraph (f) of this section who does not represent the Federal
Government, or a representative as defined in paragraph (j) of this
section.
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for part 1003 continues to read as follows:
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,
1254a, 1255, 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;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
4. In Sec. 1003.2, revise paragraph (g)(1) to read as follows:
1003.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(g) * * *
(1) English language, entry of appearance, and proof of service
requirements. A motion and any submission made in conjunction with a
motion must be in English or accompanied by a certified English
translation. If a party other than DHS is represented, any motion or
related filing by that party must be accompanied by a Form EOIR-27,
Notice of Entry of Appearance as Attorney or Representative Before the
Board, pursuant to 8 CFR 1003.38(g)(1). If a party other than DHS is
pro se and receives document assistance from a practitioner with a
motion or related filing pursuant to 8 CFR 1003.38(g)(2), a Form EOIR-
60 must be filed with the motion or related filing. In all cases, the
motion must include proof of service on the opposing party of the
motion and all attachments. If the moving party is not DHS, service of
the motion must be made upon the DHS office in which the
[[Page 56258]]
case was completed before the immigration judge.
* * * * *
0
5. In 1003.3, revise paragraph (a)(3) to read as follows:
1003.3 Notice of appeal.
(a) * * *
(3) General requirements for all appeals. The appeal must be
accompanied by a check, money order, or fee waiver request in
satisfaction of the fee requirements of Sec. 1003.8. If the respondent
or applicant is represented, pursuant to 8 CFR 1003.38(g)(1), a Form
EOIR-27, Notice of Entry of Appearance as Attorney or Representative
Before the Board, must be filed with the Notice of Appeal. If the
respondent or applicant receives document assistance from a
practitioner with the appeal, pursuant to 8 CFR 1003.38(g)(2), a Form
EOIR-60 must be filed with the Notice of Appeal. The appeal and all
attachments must be in English or accompanied by a certified English
translation.
* * * * *
0
6. Revise Sec. 1003.17 to read as follows:
1003.17 Entry of appearance.
(a) Entering an appearance using Form EOIR-28. A practitioner must
enter an appearance in proceedings before an immigration court using
Form EOIR-28 to perform the functions of and become the practitioner of
record. The practitioner of record is authorized and required to appear
in immigration court on behalf of the respondent, file all documents on
behalf of the respondent, and accept service of process of all
documents filed in the proceedings. The practitioner may enter an
appearance to be the practitioner of record for all proceedings before
the immigration court, or for custody and bond proceedings only, or for
all proceedings other than custody and bond proceedings. A
practitioner's entry of appearance in only a custody or bond proceeding
shall be separate and apart from an entry of appearance in any
proceeding other than custody or bond before the immigration court. The
Form EOIR-28 must indicate whether the practitioner's entry of
appearance is for all proceedings, for custody and bond proceedings
only, or for all proceedings other than custody and bond proceedings.
(1) Filing Form EOIR-28. The practitioner must file a copy of the
Form EOIR-28 with the immigration court and serve a copy on DHS as
required by 8 CFR 1003.32. The practitioner must file and serve a Form
EOIR-28 even if the practitioner has previously filed a separate Notice
of Entry of Appearance with DHS for appearances before DHS or
previously entered a limited appearance using Form EOIR-61 in
connection with document assistance under paragraph (b) of this
section.
(2) Effect of Filing Form EOIR-28. A practitioner who enters an
appearance using Form EOIR-28 is the practitioner of record and must
appear in immigration court on behalf of the respondent, file all
documents on behalf of the respondent, and accept service of process of
all documents filed in the proceedings, consistent with 8 CFR 1292.5.
Filing a Form EOIR-28 provides the practitioner with access to the
record of proceedings during the course of proceedings. A respondent
shall be considered represented for the proceedings in which an EOIR-28
has been filed.
(3) Withdrawal or substitution. A practitioner who enters an
appearance on behalf of a respondent before the immigration court by
filing a Form EOIR-28 remains the practitioner of record unless an
immigration judge permits withdrawal or substitution during proceedings
upon oral or written motion submitted without fee.
(b) Entering a limited appearance for document assistance using
Form EOIR-61. A practitioner who provides assistance to a pro se
respondent with the drafting, completion, or filling in of blank spaces
of a specific motion, brief, form, or other document or set of
documents intended to be filed with the immigration court, regardless
of whether such assistance is considered ``practice'' or
``preparation'' as defined in 8 CFR 1001.1, must disclose such limited
assistance to the immigration court using Form EOIR-61, unless pursuant
to paragraph (a) the practitioner has filed a Form EOIR-28 to become
the practitioner of record.
(1) Filing Form EOIR-61. A Form EOIR-61 must not be filed as a
standalone document. The single Form EOIR-61 must be filed with the
immigration court at the same time as the document or set of documents
with which the practitioner assisted. Any subsequent filing of a
document or set of documents with which a practitioner assisted must be
accompanied by a new Form EOIR-61.
(2) Effect of Filing Form EOIR-61. A practitioner who enters a
limited appearance using Form EOIR-61 is not the practitioner of
record, is not required to appear on behalf of respondent before the
immigration court, and is not required to submit a motion to withdraw
or substitute. The submission of a Form EOIR-61 does not create
additional ongoing obligations between the practitioner, the
respondent, and EOIR. An appearance through Form EOIR-61 does not
provide the practitioner with access to the record of proceedings. A
respondent who received assistance pursuant to this paragraph is not
represented, remains pro se, and is subject to service of process of
all documents filed in the proceedings, consistent with 8 CFR 1292.5.
(c) Completing an appearance form, proof of qualification,
disclosure requirements, and identification. The practitioner must
properly complete and sign any Form EOIR-28 or Form EOIR-61, as
required by the form instructions. A practitioner's personal appearance
or signature on the Form EOIR-28 or Form EOIR-61 constitutes an
attestation that the person is authorized and qualified to appear as a
practitioner in accordance with Sec. 1292.1. Further proof that the
practitioner meets the qualifications of a practitioner as defined in
Sec. 1292.1 may be required. The completion of a Form EOIR-28 or Form
EOIR-61 in connection with an application or form that requires
disclosure of the preparer does not relieve a practitioner from
complying with the particular disclosure requirements of the
application or form. Notwithstanding the completion of a Form EOIR-28
or Form EOIR-61, the practitioner must identify themselves by name,
accompanied by their signature, on any document filed or intended to be
filed with the immigration court pursuant to an appearance under
paragraph (a) or (b).
0
7. In Sec. 1003.38, revise paragraph (g) to read as follows:
Sec. 1003.38 Appeals
* * * * *
(g) In proceedings before the Board on behalf of a respondent, a
practitioner must enter an appearance using Form EOIR-27 or Form EOIR-
60.
(1) Entering an appearance using Form EOIR-27. In proceedings
before the Board, in order to become the practitioner of record, which
authorizes and requires the practitioner to appear before the Board on
behalf of the respondent, file all documents on behalf of the
respondent, and accept service of process of all documents filed in the
proceedings, a practitioner must enter an appearance using Form EOIR-
27.
(i) Filing Form EOIR-27. The practitioner must file a copy of the
Form EOIR-27 with the Board and serve a copy on DHS as required by 8
CFR 1003.32. The practitioner must file and serve a Form EOIR-27 even
if the practitioner has previously filed a separate Notice of Entry of
Appearance with DHS for appearances before DHS
[[Page 56259]]
or a Form EOIR-28 with the immigration court, or has previously entered
a limited appearance using a Form EOIR-60 in connection with document
assistance under paragraph (g)(2) of this section.
(ii) Effect of filing Form EOIR-27. A practitioner who enters an
appearance using Form EOIR-27 is the practitioner of record and must
appear before the Board on behalf of the respondent, file all documents
on behalf of the respondent, and accept service of process of all
documents filed in the proceedings, consistent with 8 CFR 1292.5.
Filing a Form EOIR-27 provides the practitioner with access to the
record of proceedings during the course of proceedings. A respondent
shall be considered represented for the proceedings in which a Form
EOIR-27 has been filed.
(iii) Withdrawal or substitution. A practitioner who enters an
appearance on behalf of a respondent before the Board by filing a Form
EOIR-27 remains the practitioner of record unless the Board permits
withdrawal or substitution during proceedings only upon written motion
submitted without fee.
(2) Entering a limited appearance for document assistance using
Form EOIR-60. A practitioner who provides assistance to a pro se
respondent with the drafting, completion, or filling in of blank spaces
of a motion, brief, form, or other specific document or set of
documents intended to be filed with the Board, regardless of whether
such assistance is considered ``practice'' or ``preparation'' as
defined in Sec. 1001.1, must disclose such limited assistance to the
Board using Form EOIR-60, unless pursuant to paragraph (g)(1) the
practitioner has filed a Form EOIR-27 to become the practitioner of
record.
(i) Filing Form EOIR-60. A Form EOIR-60 must not be filed as a
standalone document. The single Form EOIR-60 must be filed with the
Board at the same time as the document or set of documents with which
the practitioner assisted. Any subsequent filing of a document or set
of documents with which a practitioner assisted must be accompanied by
a new Form EOIR-60.
(ii) Effect of Filing Form EOIR-60. A practitioner who enters a
limited appearance using Form EOIR-60 is not the practitioner of
record, is not required to appear before the Board, and is not required
to submit a motion to withdraw or substitute. The submission of a Form
EOIR-60 does not create additional ongoing obligations between the
practitioner, the respondent, and EOIR. An appearance through Form
EOIR-60 does not provide the practitioner with access to the record of
proceedings. A respondent who received assistance pursuant to this
paragraph is not represented, remains pro se, and is subject to service
of process of all documents filed in the proceedings, consistent with 8
CFR 1292.5.
(3) Completing an appearance form, proof of qualification,
disclosure requirements, and identification. The practitioner must
properly complete and sign any Form EOIR-27 or Form EOIR-60, as
required by the form instructions. A practitioner's personal appearance
or signature on the Form EOIR-27 or Form EOIR-60 constitutes a
representation that the person is authorized and qualified to appear as
a practitioner in accordance with 8 CFR 1292.1. Further proof that the
practitioner meets the qualifications of a practitioner as defined in 8
CFR 1292.1 may be required. The completion of a Form EOIR-27 or Form
EOIR-60 in connection with an application or form that requires
disclosure of the preparer does not relieve a practitioner from
complying with the particular disclosure requirements of the
application or form.
Notwithstanding the filing of a Form EOIR-27 or Form EOIR-60, the
practitioner must identify themselves by name, accompanied by their
signature, on any document filed or intended to be filed with the Board
pursuant to an appearance under paragraph (g)(1) or (2) of this
section.
0
8. In Sec. 1003.101, revise paragraph (b) to read as follows:
Sec. 1003.101 General provisions.
* * * * *
(b) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. Attorneys employed by the Department of
Justice shall be subject to discipline pursuant to Sec. 1003.109.
Nothing in this regulation shall be construed as authorizing persons
who do not meet the definition of practitioner to represent individuals
before the Board and the immigration courts or the DHS.
* * * * *
0
9. Amend Sec. 1003.102 by:
0
a. Removing the words ``Immigration Court'' in paragraphs (d) and (j)
and adding in their place the words ``immigration court'';
0
b. Removing the words ``Immigration Courts'' in paragraph (f)(2)(i) and
adding in their place the words ``immigration courts'';
0
c. Revising paragraphs (t) and (u); and
0
d. Adding paragraph (w).
The revisions and addition read as follows:
Sec. 1003.102 Grounds.
* * * * *
(t) Repeatedly fails to submit a signed and completed entry of
appearance using the appropriate form in compliance with applicable
rules and regulations, including 8 CFR 292.4(a), 1003.17, and 1003.38;
(u) Repeatedly drafts notices, motions, briefs, or claims that are
filed with DHS or EOIR that reflect little or no attention to the
specific factual or legal issues applicable to a client's case, but
rather rely on boilerplate language indicative of a substantial failure
to competently and diligently represent the client;
* * * * *
(w) Repeatedly fails to sign any pleading, application, motion,
petition, brief, or other document prepared, drafted, or filed with DHS
or EOIR. The practitioner's signature must be in the practitioner's
individual name and must be handwritten or electronically in conformity
with the rules and instructions of the applicable system.
Dated: September 9, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-19882 Filed 9-13-22; 8:45 am]
BILLING CODE 4410-30-P
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</html>Indexed from Federal Register on September 14, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.