[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Rules and Regulations]
[Pages 9071-9075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5039]


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DEPARTMENT OF JUSTICE

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

[EOIR No. 113F; A.G. Order No. 2070-97]
RIN 1125-AA14


Executive Office for Immigration Review; List of Free Legal 
Services Providers

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This final rule transfers the responsibility for maintaining 
the list of organizations providing free legal services in immigration 
proceedings from the Immigration and Naturalization Service (INS) to 
the Executive Office for Immigration Review (EOIR), Office of the Chief 
Immigration Judge, and amends the regulations by permitting attorneys 
who provide free legal services to indigent aliens to apply to be 
included on the list. The rule also amends the regulations by 
transferring appellate jurisdiction from the Associate Commissioner for 
Examinations, INS, to the Board of Immigration Appeals for appeals from 
decisions on applications to be included on the list of free legal 
services providers and from decisions on removals from such a list. 
Finally, this rule will further implementation of section 604(d)(4) of 
the recently enacted Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 by requiring that the list of free legal 
services providers maintained by the Chief Immigration Judge include a 
list of persons who have indicated their availability to represent 
aliens in asylum proceedings on a pro bono basis.

EFFECTIVE DATE: March 31, 1997.

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: On August 5, 1996, the Executive Office for 
Immigration Review published a proposed rule in the Federal Register 
(61 FR 40552) amending 8 CFR parts 3 and 292a by transferring the 
responsibility for maintaining the list of entities that will provide 
free legal services in immigration proceedings from INS to EOIR, Office 
of the Chief Immigration Judge. This list of organizations and 
attorneys, qualified pursuant to this rule, who can represent aliens in 
immigration proceedings before the Board of Immigration Appeals and the 
Immigration Courts is given to aliens who are parties in immigration 
proceedings in an Immigration Court. This rule amends 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 providers.
    In response to the above rulemaking, EOIR received two comments. 
One commenter noted that there may be areas where Immigration Courts 
are

[[Page 9072]]

located but where no organizations or attorneys are available to 
represent aliens on a pro bono basis. The commenter suggested that the 
Immigration Courts should also maintain lists of private attorneys who 
regularly practice before each of the Courts. Such lists could be 
distributed to aliens in need of counsel, and any licensed attorney 
would be able to place his or her name on the lists.
    However, EOIR has promulgated this rule in order to enhance the 
opportunities for indigent aliens to find free legal counsel by 
providing them with a list of organizations and attorneys who are 
willing to represent them on a pro bono basis. Moreover, the statutory 
basis to formulate and maintain such lists requires that the lists be 
maintained for this purpose. See 8 U.S.C. 1252(b)(2). Therefore, this 
suggestion will not be adopted.
    The same commenter also inquired as to whether an attorney must 
accept a certain number of pro bono cases in order to be included on 
the list of free legal services providers, and whether an attorney 
would be prohibited from accepting any cases, or a certain percentage 
of cases, for a fee. EOIR does not believe it is necessary or advisable 
to require an attorney to accept a specific number or percentage of 
cases on a pro bono basis in order to be included on the list of free 
legal services providers. Nor will an attorney included on the list be 
precluded from accepting cases for a fee. An attorney included on the 
list may continue serving a wide range of paying clients as long as he 
or she agrees to represent indigent aliens on a pro bono basis. 
However, if it comes to EOIR's attention that an attorney who is 
included on the list is not, in fact, accepting cases on behalf of 
indigent aliens on a pro bono basis, the regulation provides that the 
Chief Immigration Judge, or his or her designee, may remove the 
attorney's name from the list after giving the attorney notice and an 
opportunity to answer. Moreover, this issue is subject to further 
review if necessary to eliminate any abuses.
    The other commenter expressed concern that the proposed rule 
provided that only an organization that has on its staff, or retains at 
no expense to the alien, an attorney who is available to render free 
legal services, or a bar association that provides a referral service 
of attorneys who render pro bono assistance, may apply to be included 
on the list of free legal services providers, while organizations other 
than bar associations that provide referral services for indigent 
aliens could not apply to be included on the list. The commenter 
therefore suggested that the rule be amended to include additional 
organizations that provide referral services for indigent aliens.
    While the purpose of this regulation is to enhance the 
opportunities for indigent aliens to find free legal counsel by 
expanding the list of organizations and attorneys who are willing to 
represent them on a pro bono basis, EOIR also recognizes the need to 
ensure that only organizations with bona fide referral services be 
included on the list. Therefore, the rule has been amended to allow 
organizations that operate referral services to apply to be on the list 
and to allow the Chief Immigration Judge to exercise his or her 
discretion in ruling on such applications.
    Finally, this rule furthers implementation of section 604(d)(4) of 
the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996, Pub. L. 104-208, by having the list of free legal services 
providers maintained by the Chief Immigration Judge include a list of 
persons who have indicated their availability to represent aliens in 
asylum proceedings on a pro bono basis.
    Although the rule requires that an organization or attorney file an 
application requesting to be placed on the list of free legal services 
providers, there is no specific application form being used for this 
request at the present time. Further, any organization that is on the 
current list of free legal services providers will not need to apply at 
this time to be included on the new list. All organizations on the 
current list will be contacted by the Office of the Chief Immigration 
Judge, or his or her designee, to determine if they intend to remain on 
the list and to verify identifying information, such as address and 
telephone number. Any organizations that cannot be reached will not be 
included on the new list.
    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 No. 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 section 6 of 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, 
Reporting and recordkeeping requirements.

8 CFR Part 292a

    Aliens, Legal services.

    Accordingly and under the authority of 8 U.S.C. 1103, chapter I of 
title 8 of the Code of Federal Regulations is 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 authorities.

* * * * *
    (b) * * *

[[Page 9073]]

    (11) Decisions on applications from organizations or attorneys 
requesting to be included on a list of free legal services providers 
and decisions on removals therefrom pursuant to Sec. 3.65.
* * * * *

Subpart D [Added and Reserved]

    3. Subpart D is added and reserved.
    4. A new Subpart E is added to read as follows:

Subpart E--List of Free Legal Services Providers

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 E--List of Free Legal Services Providers


Sec. 3.61  List.

    (a) The Chief Immigration Judge shall maintain a current list of 
organizations and attorneys qualified under this subpart which provide 
free legal services. This list, which shall be updated not less than 
quarterly, shall be provided to aliens in immigration proceedings. The 
Chief Immigration Judge may designate an employee or employees to carry 
out his or her responsibilities under this subpart. Organizations and 
attorneys may be included on the list of free legal services providers 
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 
and Immigration Courts;
    (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 of free legal services providers maintained by 
the Chief Immigration Judge 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 and Immigration Courts.
    (b) Organizations not recognized under Sec. 292.2. An organization 
that is not recognized under Sec. 292.2 of this chapter that seeks to 
have its name appear on the list of free legal services providers 
maintained by the Chief Immigration Judge 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 provides 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 
of free legal services providers maintained by the Chief Immigration 
Judge. Any other organization that provides such a referral service may 
also apply to have its name appear on the list of free legal services 
providers, and may, in the sole discretion of the Chief Immigration 
Judge, be included on the list.
    (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 of free 
legal services providers maintained by the Chief Immigration Judge must 
declare in his or her application 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 pro bono. An attorney under 
this section may not receive any direct or indirect remuneration from 
indigent aliens for representation in immigration proceedings, although 
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 of free 
legal services providers maintained by the Chief Immigration Judge 
under this subpart, an organization or attorney must file an 
application requesting to be placed on the list. 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 must be 
identified by the notation ``Application for Free Legal Services 
Providers List'' on the envelope, and must also indicate if the 
organization or attorney is willing to represent indigent aliens in 
asylum proceedings.
    (b) Organizations recognized under Sec. 292.2. An organization that 
is 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(a).
    (c) Organizations not recognized under Sec. 292.2. An organization 
that 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).
    (d) Attorneys. An attorney must:
    (1) Submit a declaration that 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 pro bono; 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) Include 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.
    (e) Changes in addresses or status. Organizations and attorneys 
referred to in this subpart are under a continuing obligation to notify 
the Chief Immigration Judge, in writing, within ten business days, of 
any change of address, telephone number, or qualifying or professional 
status. Failure to notify the Chief Immigration Judge of any such 
change 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 an organization or attorney 
provides free legal services shall forward a recommendation for 
approval or denial of each application submitted by the organization or 
attorney, and the reasons therefor, to the Chief Immigration Judge. The 
Chief Immigration Judge 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

[[Page 9074]]

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 to comply with the procedures set forth in 
this subpart. The organization or attorney shall be advised of its, his 
or her 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 believes 
that an organization or attorney included on the list of free legal 
services providers 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. The organization or attorney may submit an answer within 
30 days from the date the notice is served. The organization or 
attorney must establish by clear, unequivocal, and convincing evidence 
that the organization's or attorney's name should not be removed from 
the list. If, after consideration of any answer submitted by the 
organization or attorney, the Chief Immigration Judge determines that 
the organization or attorney no longer meets the qualifications set 
forth in this subpart, the Chief Immigration Judge shall promptly 
remove the name of the organization or attorney from the list of free 
legal service providers, 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 or attorney's last known 
address. Organizations and attorneys shall be advised of their 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, 
his or her name removed from the list of free legal service providers. 
Such a request shall be honored, and the name of the organization or 
attorney shall promptly be removed from the list, the removal of which 
will be reflected in the next quarterly update.

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

    5. 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]

    6. 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

    7. 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; 8 CFR part 2.


Sec. 212.6  [Amended]

    8. 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

    9. 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]

    10. 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

    11. 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]

    12. In Sec. 236.2, paragraph (a) 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 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

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

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


Sec. 242.1  [Amended]

    14. 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]

    15. In Sec. 242.2, paragraph (c)(2) 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''.
    16. 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]

    17. In Sec. 242.16, paragraph (a) is amended in the first sentence 
by removing the word ``programs'' and adding ``providing 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]

    18. 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 providers maintained in accordance with part 3 of this 
chapter''.

PART 287--FIELD OFFICERS; POWERS AND DUTIES

    19. 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]

    20. In Sec. 287.3, the sixth sentence is amended 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''.

[[Page 9075]]

PART 292--REPRESENTATION AND APPEARANCES

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

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

    22. Section 292.22 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]

    23. Part 292a is removed.

    Dated: February 24, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-5039 Filed 2-27-97; 8:45 am]
BILLING CODE 4410-30-M