[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