[Federal Register Volume 60, Number 219 (Tuesday, November 14, 1995)]
[Proposed Rules]
[Pages 57200-57201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28011]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
8 CFR Parts 292 and 292a
[EOIR: 109N; AG Order No. 1196-95]
RIN 1125-ZA00
Executive Office for Immigration Review; Representation and
Appearance
AGENCY: Department of Justice.
ACTION: Request for public comment.
-----------------------------------------------------------------------
SUMMARY: This request for comment seeks input regarding possible
changes in the qualifications required of an organization before it may
be recognized by the Executive Office for Immigration Review (EOIR) to
represent persons before the Immigration and Naturalization Service
(Service), the Board of Immigration Appeals (Board), and the
Immigration Court. Specifically, comments are requested regarding
whether the requirement that recognized organizations may charge only
``nominal fees'' should be changed.
DATES: Comments must be submitted on or before December 14, 1995.
ADDRESSES: Comments may be submitted to General Counsel, Executive
Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls
Church, VA 22041.
FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration
Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041,
telephone: (703) 305-0470.
SUPPLEMENTARY INFORMATION:
Background
Under the present version of 8 CFR 292.2, non-profit religious,
charitable, social service, or similar organization may designate
representatives to practice before the Service, the Immigration Court,
and the Board if the organization has applied for and received
recognition from the Board. To gain such recognition, an organization
must establish to the satisfaction of the Board that--
(1) It charges only nominal fees for its services and assesses no
excessive membership dues, and
(2) It has adequate knowledge, information, and experience to
represent its clients in immigration matters.
The requirement that a recognized organization may charge only
nominal fees has been a requirement for recognition by the Board since
1975. The requirement has existed to ensure that recognized
organizations are in fact charitable, are serving low-income or
indigent clients, and are not representing their clients for profit.
The term ``nominal fees'' has not been specifically defined, but
rather interpretation has been left to a case-by-case analysis.
However, the Board has stated that the ``imposition of nominal fees was
not intended as a means through which an organization could fund
itself.'' Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386
(BIA 1986). The Board has also stated that the fact that an
organization's fees are ``substantially less than those charged by law
firms is not a proper standard for consideration since such
organizations are not law firms.'' Id. Beyond this, little concrete
guidance regarding the meaning of nominal fees has been provided in the
20 years since the term first appeared in the regulation.
Traditionally, however, the term has been narrowly construed to permit
recognized organizations to charge only minimal amounts for their
services.
The nominal fees restriction has been criticized by some as
constituting a barrier to affordable, quality legal services to poor
aliens. It has been asserted that some organizations, well-qualified to
represent aliens, do not even attempt to gain recognition from the
Board because of the nominal fee restriction, and that many other
recognized organizations are unable to meet the demand for their
services due to the financial constraints imposed by the nominal fees
restriction.
On the other hand, other groups have suggested that an increase in
nominal fees charged by recognized organizations may place them in
competition with members of the bar for clients who can afford legal
services. This arguably exceeds the scope of the ``recognized
organization'' program, which was intended to address the needs for pro
bono representation. It also creates certain issues with respect to
oversight by the Board of the performance and fee charging policies of
recognized organizations.
The issues raised by the nominal fees regulation have recently
become the focus of additional attention. Many recognized organizations
have stated that they are losing funding as charitable contributions
dwindle and sentiment against providing legal aid to aliens grows. A
number of organizations have informed EOIR that they have closed
completely or have scaled back their immigration programs. At the same
time, some organizations assert, the need for services to low-income
aliens has been steadily growing. The perceived hardship imposed by the
nominal fee restriction on both
[[Page 57201]]
recognized organizations and their clients has been the impetus for a
renewed effort to change or eliminate the restriction.
Request for Comments
The concerns outlined above have led EOIR to formally request
comments on possible changes to the nominal fee and accreditation
provisions of 8 CFR 292.2. The outlined concerns are not considered to
be comprehensive, and those responding are invited to address these and
any additional areas of concern they may have regarding the nominal fee
issue. For example, EOIR also seeks comments on the following:
1. Should the nominal fee restriction be retained, but more broadly
interpreted, so as to permit higher fees to be charged?
2. If the nominal fee restriction is changed, or is eliminated from
the regulation, what should replace it?
3. Should recognized organizations be able to fund themselves, in
whole or in part, through imposition of fees? If so, what would be an
appropriate level of such funding?
4. What safeguards should exist to ensure that recognized
organizations are in fact operating in the best interests of their
clientele and not for profit?
A concern that is frequently raised in discussing change or
elimination of the nominal fee requirement is that the requirement
guards against the proliferation of unregulated immigration consultants
or ``notarios,'' who are operating for profit, and who frequently
provide poor advice or otherwise take advantage of their clients. The
concern is that if larger fees may be charged by recognized
organizations, more unscrupulous organizations may apply for and gain
recognition by the Board. Those arguing in favor of changing the
regulation, on the other hand, contend that such questionable
organizations are more likely to exist where there are inadequate
quality legal services available. They argue that these organizations
take advantage of the fact that many aliens cannot afford lawyers, that
legal services are not available, and that aliens therefore turn to
unqualified and sometimes dishonest organizations for advice and help.
Parties on each side of this argument, however, agree that if the
nominal fee regulation is changed or eliminated, some safeguards should
be put in place to carefully regulate the recognition of organizations
before the Board. Comments are requested regarding how best to do this.
The following are ideas on which comments are invited:
(a) Should an organization be required to show that it has both
non-profit and tax-exempt status, within the meaning of the Internal
Revenue Code?
(b) Should an organization be required to show that it serves only
low-income clients? Should the term low-income be defined, and if so,
how?
(c) Should an organization be required to provide, as part of the
application for recognition, proof of where they receive their funding?
Once recognized, should they also be required to provide annual reports
which include the sources of their revenue, their fee schedules, their
income guidelines, and proof that they serve only, or primarily, low-
income clients?
(d) Should an organization be required to vary its fees depending
on ability to pay?
(e) Should there be formal procedures requiring recognized
organizations to show continuing compliance with any applicable
regulation? Should recognized organizations be required to be re-
recognized periodically, as is the case with accredited
representatives?
(f) In requests for reaccreditation of accredited representatives
of recognized organizations, should there be a requirement that
Immigration Judges before whom the representative practices be
consulted? Should the local bar be notified of reaccreditation
applications, with opportunity to comment?
(g) Should there be formal procedures for filing complaints against
recognized organizations or accredited representatives? Should the
regulation provide that any attorney or advocate may report suspected
abuse?
5. Should the regulation regarding lists of free legal services, at
8 CFR part 292a, be amended to allow including organizations and/or
individuals who provide low cost legal services? Should private
attorneys be permitted to have their names on this list, provided their
fees are within the range accepted:
As mentioned above, EOIR welcomes all comments regarding any of the
concerns identified in this notice as well as any other comments
regarding possible changes in the qualifications required of an
organization for recognition by EOIR to represent persons before the
Service, the Board, and the Immigration Court.
Dated: November 6, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-28011 Filed 11-13-95; 8:45 am]
BILLING CODE 4410-01-M