[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Proposed Rules]
[Pages 40551-40555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19732]


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[[Page 40552]]

DEPARTMENT OF JUSTICE

8 CFR Parts 3, 103, 212, 235, 236, 242, 287, 292, 292a

[EOIR No. 113P; A.G. Order No. 2046-96]
RIN 1125-AA14


Executive Office for Immigration Review; List of Free Legal 
Services

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule transfers the responsibility for 
maintaining the list of free legal services in deportation proceedings 
from the Immigration and Naturalization Service (INS) to the Executive 
Office for Immigration Review, Office of the Chief Immigration Judge. 
This rule also proposes to amend the regulations governing the list by 
permitting attorneys who provide free legal services to indigent aliens 
to apply to be included on the list of free legal services. The rule 
also amends 8 CFR Part 103 by transferring appellate jurisdiction to 
the Board of Immigration Appeals from the Associate Commissioner for 
Examinations, INS, for appeals from decisions on applications relative 
to the list of free legal services and from decisions on removals from 
such a list.

DATES: Written comments must be received on or before October 4, 1996.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Margaret M. Philbin, General Counsel, Executive Office for 
Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, 
Virginia 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: This proposed rule amends 8 CFR Parts 3 and 
292a by transferring the responsibility for maintaining the list of 
free legal services in deportation proceedings from the Immigration and 
Naturalization Service (INS) to the Executive Office for Immigration 
Review (EOIR), Office of the Chief Immigration Judge. Because EOIR will 
be assuming this new responsibility, this regulatory provision will be 
moved from 8 CFR Part 292a to 8 CFR Part 3, which pertains specifically 
to EOIR. This list of free legal services is given to aliens who have 
been placed in deportation proceedings in Immigration Court. 
Accordingly, the list will only include organizations and attorneys, 
qualified pursuant to this rule, who can represent aliens in such 
proceedings before the Board and the Immigration Courts.
    This list of free legal services is not to be confused with the 
Roster of Recognized Organizations and Accredited Representatives 
(Roster) maintained by the Board pursuant to Sec. 292.2(e). The Roster 
includes the names of accredited representatives who are authorized to 
practice before the Service alone or the Service and the Board 
(including practice before the Immigration Court).
    This proposed rule has been drafted in response to a May 1994 
Inspector General's (IG) report on the Case Hearing Process before 
EOIR. The IG's report focused, inter alia, on regulatory and procedural 
changes which would improve the effectiveness and timeliness of 
immigration proceedings. One of the recommendations in the report 
suggested that the responsibility for maintaining the referral lists of 
pro bono legal services be transferred from INS to EOIR. The IG report 
noted that EOIR is responsible for the recognition of non-profit 
religious, charitable, and social organizations and the accreditation 
of its representatives who provide legal services to aliens for nominal 
fees. In light of these agency responsibilities and the frequent 
contact of immigration judges with the legal services community, the IG 
report concluded that EOIR is the appropriate entity to develop and 
maintain these referral lists of pro bono legal services.
    This rule also proposes to amend the present regulation by 
permitting attorneys who provide free legal services to indigent aliens 
to apply to be included on the list of free legal services. Section 
242B(b)(2) of the Immigration and Nationality Act, as amended, requires 
the Attorney General to provide for lists (updated not less often than 
quarterly) of persons who have indicated their availability to 
represent pro bono aliens in immigration proceedings. Enabling 
attorneys to apply to be included on the list of free legal services 
will enhance the opportunities for indigent aliens to find free legal 
counsel.
    This proposed rule also amends 8 CFR Part 103 by transferring 
appellate jurisdiction to the Board of Immigration Appeals from the 
Associate Commissioner for Examinations, INS, for appeals from 
decisions on applications relative to the list of free legal services 
and from decisions on removals from such a list. In addition, the rule 
proposes to amend 8 CFR Parts 212, 235, 236, 242, and 287 by removing 
all references to Part 292a and replacing them with references to Part 
3. Finally, this proposed rule amends 8 CFR Part 292 by clarifying that 
representatives authorized to practice before the Board are also 
authorized to practice before the Immigration Court.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. The Attorney General has 
determined that this rule is not a significant regulatory action under 
Executive Order 12866, and accordingly this rule has not been reviewed 
by the Office of Management and Budget. This rule has no Federalism 
implications warranting the preparation of a Federalism Assessment in 
accordance with Executive Order No. 12612. The rule merits the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order No. 12988.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Lawyers, 
Organizations and functions (Government agencies), Reporting and 
recordkeeping requirements.

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 287

    Immigration, Law enforcement officers.

8 CFR Part 292

    Administrative practice and procedure, Immigration, Lawyers,

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Reporting and recordkeeping requirements.

8 CFR Part 292a

    Aliens, Legal services.

    For the reasons set forth in the preamble, and under the authority 
of 8 U.S.C. 1103, 1252b, chapter I of Title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 
28 U.S.C. 509, 510, 1746; Sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 
1949-1953 Comp., p. 1002.

    2. Section 3.1 is amended by adding a new paragraph (b)(11) to read 
as follows:


Sec. 3.1  General.

* * * * *
    (b) * * *
    (11) Decisions on applications from organizations or attorneys 
requesting to be included on a list of free legal services and removal 
therefrom pursuant to this part 3.
* * * * *
    3. Subpart D is added and reserved and a new Subpart E is added to 
read as follows:

Subpart D--[Reserved]

Subpart E--List of Free Legal Services

Sec.
3.61  List.
3.62  Qualifications.
3.63  Applications.
3.64  Approval and denial of applications.
3.65  Removal of an organization or attorney from list.

Subpart D--[Reserved]

Subpart E--List of Free Legal Services


Sec. 3.61  List.

    (a) The Chief Immigration Judge, or his or her designee, shall 
maintain a current list of free legal services, to be updated not less 
than quarterly, for the purpose of providing aliens in immigration 
proceedings with such a list. Organizations and attorneys may be 
included on the list of free legal services if they qualify under one 
of the following categories:
    (1) Organizations recognized under Sec. 292.2 of this chapter that 
meet the qualifications set forth in Sec. 3.62(a) and whose 
representatives, if any, are authorized to practice before the Board 
(including practice before the Immigration Court);
    (2) Organizations not recognized under Sec. 292.2 of this chapter 
that meet the qualifications set forth in Sec. 3.62(b);
    (3) Bar associations that meet the qualifications set forth in 
Sec. 3.62(c); and
    (4) Attorneys, as defined in Sec. 1.1(f) of this chapter, who meet 
the qualifications set forth in Sec. 3.62(d).
    (b) The listing of an organization qualified under this subpart is 
not equivalent to recognition under Sec. 292.2 of this chapter.


Sec. 3.62  Qualifications.

    (a) Organizations recognized under Sec. 292.2. An organization that 
is recognized under Sec. 292.2 of this chapter that seeks to have its 
name appear on the list maintained by the Chief Immigration Judge, or 
his or her designee, must have on its staff:
    (1) An attorney, as defined in Sec. 1.1(f) of this chapter, or
    (2) At least one accredited representative as defined in 
Sec. 292.1(a)(4) of this chapter who is authorized to practice before 
the Board (including practice before the Immigration Court).
    (b) Organizations not recognized under Sec. 292.2. An organization 
that is not recognized under Sec. 292.2 of this chapter which seeks to 
have its name appear on the list maintained by the Chief Immigration 
Judge, or his or her designee, must declare that:
    (1) It is established in the United States;
    (2) It provides free legal services to indigent aliens; and
    (3) It has on its staff, or retains at no expense to the alien, an 
attorney, as defined in Sec. 1.1(f) of this chapter, who is available 
to render such free legal services by representation in immigration 
proceedings.
    (c) Bar associations. A bar association that provide a referral 
service of attorneys who render pro bono assistance to aliens in 
immigration proceedings may apply to have its name appear on the list 
maintained by the Chief Immigration Judge, or his or her designee.
    (d) Attorneys. An attorney, as defined in Sec. 1.1(f) of this 
chapter, who seeks to have his or her name appear on the list 
maintained by the Chief Immigration Judge, or his or her designee, must 
declare that he or she provides free legal services to indigent aliens 
and that he or she is willing to represent indigent aliens in 
immigration proceedings. An attorney under this section may not receive 
any direct or indirect remuneration from indigent aliens, except that 
the attorney may be regularly compensated by the firm or organization 
with which he or she is associated.


Sec. 3.63  Applications.

    (a) Generally. In order to qualify to appear on the list maintained 
by the Chief Immigration Judge, or his or her designee, under this 
subpart, an organization or attorney must file an application 
requesting to be placed on the list of free legal services. This 
application must be filed with the Office of the Chief Immigration 
Judge, along with proof of service on the Court Administrator of the 
Immigration Court having jurisdiction over each locality where the 
organization or attorney provides free legal services. Each submission 
shall be identified by the notation ``Application for Free Legal 
Services List'' on the envelope.
    (b) Organizations not recognized under Sec. 292.2. An organization 
which is not recognized under Sec. 292.2 of this chapter must submit a 
declaration signed by an authorized officer of the organization which 
states that the organization complies with all of the qualifications 
set forth in Sec. 3.62(b).
    (c) Attorneys. An attorney must:
    (1) Submit a declaration which states that:
    (i) He or she provides free legal services to indigent aliens;
    (ii) He or she is willing to represent indigent aliens in 
immigration proceedings; and
    (iii) He or she is not under any order of any court suspending, 
enjoining, restraining, disbarring, or otherwise restricting him or her 
in the practice of law; and
    (2) Which includes the attorney's bar number, if any, from each bar 
of the highest court of the state, possession, territory, or 
commonwealth in which he or she is admitted to practice law.
    (d) Changes in address or status. Organizations and attorneys 
referred to in this subpart are under a continuing obligation to notify 
the Chief Immigration Judge, or his or her designee, in writing within 
ten business days, of any change of address, telephone number, or 
status. Failure to notify the Chief Immigration Judge, or his or her 
designee of any such changes may result in the name of the organization 
or attorney being removed from the list.


Sec. 3.64  Approval and denial of applications.

    The Court Administrator of the Immigration Court having 
jurisdiction over each locality where the organization or attorney 
provides free legal services shall forward a recommendation for 
approval or denial of each application submitted by an organization or 
attorney, and the reasons therefore, to the Chief Immigration Judge, or 
his or her

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designee. The Chief Immigration Judge, or his or her designee, shall 
have the authority to approve or deny an application submitted by an 
organization or an attorney pursuant to Sec. 3.63. If an application is 
denied, the organization or attorney shall be notified of the decision 
in writing, at the organization's or attorney's last known address, and 
shall be given a written explanation of the grounds for such denial. A 
denial must be based on the failure of the organization or attorney to 
meet the qualifications and/or comply with the procedures set forth in 
this subpart. The organization or attorney shall be advised of its 
right to appeal this decision to the Board of Immigration Appeals in 
accordance with Sec. 3.1(b) and Sec. 103.3(a)(1)(ii) of this chapter.


Sec. 3.65  Removal of an organization or attorney from list.

    (a) Involuntary removal. If the Chief Immigration Judge, or his or 
her designee, believes that an organization or attorney qualified under 
this subpart no longer meets the qualifications set forth in this 
subpart, he or she shall promptly notify the organization or attorney 
in writing, at the organization's or attorney's last known address, of 
his or her intention to remove the name of the organization or attorney 
from the list of free legal services. The organization or attorney may 
submit within 30 days from the date the notice was served. The 
organization or attorney must establish by clear, unequivocal, and 
convincing evidence that its name should not be removed from the list. 
If, after consideration of any answers submitted by the organization or 
attorney, the Chief Immigration Judge, or his or her designee, 
determines that the organization or attorney no longer meets the 
qualifications set forth in this subpart, the Chief Immigration Judge, 
or his or her designee, shall promptly remove the name of the 
organization or attorney from the list of free legal services, the 
removal of which will be reflected in the next quarterly update, and 
shall notify the organization or attorney of such removal in writing, 
at the organization's attorney's last known address. The organization 
or attorney shall be advised of its right to appeal this decision to 
the Board of Immigration Appeals in accordance with Sec. 3.1(b) and 
Sec. 103.3(a)(1)(ii) of this chapter.
    (b) Voluntary removal. Any organization or attorney qualified under 
this subpart may, at any time, submit a written request to have its 
name removed from the list of free legal services. Such a request shall 
be honored and the name of the organization or attorney shall promptly 
be removed from the list of free legal services, the removal of which 
will be reflected in the next quarterly update.

PART 103--POWERS AND DUTIES OF SERVICES OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    4. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.


Sec. 103.1  [Amended]

    5. Section 103.1 is amended by removing and reserving paragraph 
(f)(3)(iii)(U).

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    6. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; and 8 CFR part 2.


Sec. 212.6  [Amended]

    7. In Sec. 212.6, paragraph (d)(1) is amended in the third sentence 
by removing the word ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    8. The authority citation for part 235 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 
1226, 1227, 1228, 1252.


Sec. 235.6  [Amended]

    9. In Sec. 235.6, paragraph (a) is amended in the fourth sentence 
by removing the word ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.

PART 236--EXCLUSION OF ALIENS

    10. The authority citation for part 236 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.


Sec. 236.2  [Amended]

    11. Sec. 236.2, paragraph (a) is amended in the third sentence by 
removing the work ``programs'' and adding ``provided by organizations 
and attorneys'' in its place and be revising the reference to ``part 
292a of this chapter'' to read ``part 3 of this chapter''.

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    12. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.


Sec. 242.1  [Amended]

    13. In Sec. 242.1, paragraph (c) is amended in the fourth sentence 
by removing the word ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.


Sec. 242.2  [Amended]

    14. Sec. 242.2, paragraph (c)(2) is amended in the third sentence 
by removing the work ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to part 292a of this chapter'' to read ``part 3 of this 
chapter''.
    15. In Sec. 242.2, paragraph (d) is amended in the fourth 
sentence by removing the word ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.


Sec. 242.16  [Amended]

    16. In Sec. 242.16, paragraph (a) is amended in the first sentence 
by removing the word ``programs'' and adding ``provided by 
organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.


Sec. 242.24  [Amended]

    17. In Sec. 242.24, paragraph (g) is amended in the first and 
second sentences by revising the phrase ``found on the free legal 
services list'' to read ``or attorney found on the list of free legal 
services maintained in accordance with part 3 of this chapter''.

PART 287--FIELD OFFICERS; POWERS AND DUTIES

    18. The authority citation for part 287 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8 
CFR part 2.


Sec. 287.3  [Amended]

    19. In Sec. 287.3, the sixth sentence is amended by removing the 
word ``programs'' and adding ``provided by

[[Page 40555]]

organizations and attorneys'' in its place and by revising the 
reference to ``part 292a of this chapter'' to read ``part 3 of this 
chapter''.

PART 292--REPRESENTATION AND APPEARANCES

    20. The authority citation for part 292 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1252b, 1362.

    21. Section 292.2 is amended by revising the first sentence in 
paragraph (a) introductory text to read as follows:


Sec. 292.2  Organizations qualified for recognition; requests for 
recognition; withdrawal of recognition; accreditation of 
representatives; roster.

    (a) Qualifications of organizations. A non-profit religious, 
charitable, social service, or similar organization established in the 
United States and recognized as such by the Board may designate a 
representative or representatives to practice before the Service alone 
or the Service and the Board (including practice before the Immigration 
Court). * * *
* * * * *

PART 292A--[REMOVED]

    22. Part 292a is removed.

    Dated: July 27, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-19732 Filed 8-2-96; 8:45 am]
BILLING CODE 4410-01-M