[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Proposed Rules]
[Pages 75160-75164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32019]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001, 1292

[EOIR No. 138P; AG Order 2700-2003]
RIN 1125-AA39


Executive Office for Immigration Review Attorney/Representative 
Registry

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the regulations pertaining to 
appearances by attorneys and representatives before the Executive 
Office for Immigration Review (EOIR). This proposed rule authorizes the 
Director, EOIR, or his designee to register attorneys and 
representatives as

[[Page 75161]]

a condition of practicing before immigration judges and the Board of 
Immigration Appeals. The proposed rule also provides that the Director 
or his designee will establish registration procedures including a 
requirement for electronic registration, and may administratively 
suspend from practice before EOIR any practitioner who fails to provide 
certain registration information.

DATES: Written comments must be submitted on or before March 1, 2004.

ADDRESSES: Please submit written comments to Charles Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2600, Falls Church, Virginia 22041. To ensure proper 
handling, please reference RIN No. 1125-AA39 on your correspondence. 
The public may also submit comments electronically to EOIR at 
[email protected]. When submitting comments 
electronically, you must include RIN No. 1125-AA39 in the subject box.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not 
a toll-free call).

SUPPLEMENTARY INFORMATION: This proposed rule would authorize the 
Director, Executive Office for Immigration Review (``EOIR''), or his 
designee to register all attorneys and representatives 
(``practitioners'') entering appearances before immigration judges and 
the Board of Immigration Appeals (``Board'') as a condition of 
practicing before EOIR. The Director or his designee also would be 
authorized under the proposed rule to establish procedures for 
registration. Following an initial registration period, practitioners 
would need to include their registration identification (``UserID'') on 
any new entry of appearance (i.e., the filing of Forms EOIR-27 or EOIR-
28).

Reasons for Issuing This Proposed Rule

    The Department is updating and integrating its immigration court 
and Board databases, and designing an electronic case access and filing 
system, to comply with the Government Paperwork Elimination Act 
(``GPEA''), to achieve the Department's vision for improved immigration 
adjudication processing, and to meet the public expectations for 
electronic government. 44 U.S.C. 3504 note. The GPEA provides that the 
Office of Management and Budget (``OMB'') must ensure that no later 
than October 21, 2003, executive agencies provide for the option of 
electronic submission of information, when practicable, as a substitute 
for paper.
    The practitioner registration process contemplated by the 
Department for EOIR will initially enable EOIR to distribute a unique 
UserID to all practitioners. The UserIDs will be a core component in a 
redesigned case tracking system, ensuring a single, unique 
identification for each practitioner appearing before immigration 
judges and the Board. Application of the unique UserID will reduce 
system errors in scheduling matters and will provide improved notice to 
practitioners. In conjunction with a UserID, passwords will also be 
issued to practitioners to permit them to maintain and update 
registration information electronically (via the Internet) and, in the 
future, to access the EOIR electronic filing system for submission and 
retrieval of documents.

Procedures for Registering With EOIR

    EOIR will implement an on-line registration process that will be 
mandatory for practitioners. For practitioners without access to the 
Internet, a dedicated Practitioner Workstation will be made available 
at each public EOIR facility, including the immigration courts and 
Board clerk's office. For the initial registration, practitioners must 
complete an electronic registration that includes the following 
information: Full name, date of birth, last four digits of social 
security number, mailing addresses, and e-mail address. Only one e-mail 
address will be permitted; however, multiple mailing addresses may be 
used by practitioners with multiple office locations. Registrants will 
also be required to submit limited background data, such as bar 
admissions (for attorneys) and the recognized organization with which 
the individual is associated (for accredited representatives), in order 
to demonstrate that they meet the regulatory requirements for 
authorization to practice before EOIR.
    Upon completion of the registration process, the EOIR registration 
system will send a password and a verification of registration to the 
practitioner's e-mail address. Registrants who have completed only the 
initial registration requirements (full name, date of birth, last four 
digits of social security number, mailing addresses, and e-mail 
address) will be prompted electronically to complete registration. In 
such cases, both e-mail and mail notices will be generated to the 
addresses entered in the initial registration, allowing a two-week 
deadline for completing the full registration process.

Required Registrants

    All attorneys and representatives, as defined by 8 CFR 1001.1(f) 
and (j), will be required to register with EOIR as a condition of 
representing individuals before the immigration judges and the Board. 
Law firms or other similar entities will not be issued a UserID. 
Practitioners working on behalf of a law firm (including attorneys, law 
graduates, and law students) or other entity (such as accredited 
representatives employed by recognized organizations) must individually 
register with EOIR.

Registration Deadline

    Using a number of media, EOIR will provide practitioners with 
advance notice of the deadline for registering and obtaining a UserID. 
During the transition period to the newly integrated EOIR case 
management system, procedures will be in place to permit practitioners 
to associate existing cases with their new UserID and password. The 
Department contemplates that the full development of the system will 
take substantial time, and the system will be activated initially to 
permit an ``open season'' for registration before making compliance 
with registration requirements mandatory. Therefore, EOIR will provide 
a minimum of 60 days advance publicity of the availability of the 
system before adherence to the registration system's requirements will 
become mandatory for practitioners.

Practitioners Who Do Not Have an E-Mail Address

    An e-mail address will be a required field in the Registration 
Form. If an e-mail address is not entered, a registration system prompt 
will request that practitioners re-enter their e-mail address. A second 
system prompt will ask if the practitioner possesses an e-mail address. 
If the practitioner does not have an e-mail address, a message will be 
displayed that the system will send the notice automatically to the 
practitioner's physical address using the United States Post Office's 
e-mail postal addressing capabilities. EOIR will assume the cost of 
mailing this notice.

Entry of Appearance Requires a UserID

    After the effective date of the final registration regulation, 
practitioners will be required to have a UserID to file an Entry of 
Appearance in a case. If a practitioner appears in person at any public 
office of EOIR to file an Entry of Appearance but does not have a 
UserID, the staff will direct the practitioner to a

[[Page 75162]]

Practitioner Workstation in the public area of the Board's clerk's 
office or the immigration court on which he or she may register and 
receive a UserID.
    The practitioner will enter all information he or she has available 
and will be permitted to choose a UserID. The registration system will 
accept the full or initial registration data, and send the practitioner 
an e-mail message containing a password.
    If an unregistered practitioner mails an Entry of Appearance to the 
Board clerk's office or immigration court, with or without other 
documents (pleadings, etc.), the clerk's office or court staff may 
reject the Entry of Appearance and return it for completion of the 
registration process. The clerk's office staff will process any 
accompanying documents as if they had been filed by the unregistered 
practitioner's client acting on his or her own behalf.

Failure To Register or Failure To Complete the Registration Process

    Practitioners who fail to register will not be allowed to represent 
clients before the immigration judges or the Board.
    Practitioners who only complete an initial registration will be 
notified by e-mail (or United States mail, if appropriate) of the two-
week deadline for completing registration. If registration is not 
completed by that deadline, a second notice setting an additional two-
week deadline will be sent to the same practitioner address(es), 
warning of administrative suspension from practice before EOIR if 
registration is not completed timely. A third notice will inform the 
practitioner that his or her right to practice before immigration 
judges and the Board has been suspended administratively until 
registration is completed. Copies of this notice will be sent to all 
identifiable clients with matters before EOIR. Additionally, the 
practitioner's UserID and password that EOIR provided during initial 
registration will be deactivated.

Extraordinary Circumstances

    After the effective date of the final regulation, and under 
extraordinary and rare circumstances, an immigration judge may permit 
an unregistered practitioner to appear at a single hearing by 
registering before the immigration judge. For example, an unregistered 
practitioner unfamiliar with immigration practice before immigration 
judges and the Board, or an unregistered practitioner hired immediately 
before a hearing commences, may be permitted to appear before an 
immigration judge. However, the immigration judge must secure the 
required practitioner's registration information on the record 
proceedings, in addition to the practitioner's Notice of Appearance on 
Form EOIR-28. The immigration judge will also instruct the practitioner 
to register on-line immediately after the hearing. At the time the Form 
EOIR-28 information that is received during the hearing is entered into 
the case management information system, the EOIR staff will inquire of 
the system whether the practitioner has completed registration pursuant 
to the immigration judge's instructions. If not, EOIR staff will enter 
into the database the practitioner's information previously secured by 
the immigration judge. The system will then create a permanent UserID 
for the practitioner, using an algorithm based on last name and first 
name, and assign a password. An e-mail message will notify the 
practitioner of the UserID and password. As previously noted, a 
practitioner without an e-mail address will be notified at the 
practitioner's physical address using the United States Post Office's 
e-mail postal addressing capabilities. Thereafter, the practitioner 
will be able to modify the password but not the UserID.

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.
    As described more fully below in the Executive Order 12866 
certification, the Department estimates that approximately 26,000 
attorneys and representatives will electronically register. It is not 
known how many of these attorneys and representatives are ``small 
entities'' as defined by the Regulatory Flexibility Act. There is no 
fee to register. Consequently, the Department believes the costs to 
practitioners to electronically register with EOIR will be nominal.
    Practitioners will greatly benefit under this registration process 
by paving the way to future access to an electronic EOIR case access 
and filing system. Moreover, the future ability to electronically file 
a Notice of Appearance will reduce the practitioner's costs.

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, 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 12866

    The proposed rule is considered by the Department of Justice to be 
a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, the 
regulation has been submitted to the Office of Management and Budget 
for review.
    The rule establishes procedures for attorneys and representatives 
to enroll formally with EOIR as a condition of representing aliens 
before immigration judges and the Board. Requiring practitioners to 
register electronically with EOIR is a necessary precursor to 
implementing an electronic case access and filing system.
    Under the registration process, EOIR will be able to determine 
whether a practitioner is authorized to represent aliens before 
immigration judges or the Board. EOIR will also distribute to each 
authorized registrant a unique EOIR UserID and password that will 
permit future access to an electronic filing system for submission and 
retrieval of information and documents pertaining to administrative 
immigration proceedings.
    An on-line registration process will be required for practitioner 
registration. For practitioners without access to the Internet, a 
dedicated Practitioner Workstation will be made available at each 
public facility of EOIR.
    For the initial registration, practitioners must complete an 
electronic registration in which they must provide the following 
information: full name, date of birth, last four digits of social 
security number, mailing addresses, and e-mail address. Registrants 
will also be required to submit limited background data, such as bar 
admissions (for attorneys) and the

[[Page 75163]]

recognized organization with which the individual is associated (for 
accredited representatives).
    The Department estimates that approximately 26,000 attorneys and 
representatives will electronically register, a process that will take 
approximately 10 minutes for each registrant. There is no fee to 
register. Consequently, the Department believes the costs to 
practitioners to electronically register with EOIR will be nominal.
    Practitioners will greatly benefit under this registration process 
by paving the way to future access to an electronic EOIR case access 
and filing system. The future system will allow practitioners to 
electronically submit and retrieve information pertaining to 
administrative immigration proceedings.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national 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.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Paperwork Reduction Act

    The United States Department of Justice has submitted a request for 
approval of a new information collection instrument to the Office of 
Management and Budget for review in accordance with the Paperwork 
Reduction Act of 1995. The proposed new information collection is 
published in this document to obtain comments from the public and 
affected agencies. Comments are encouraged and will be accepted for 
sixty days in conjunction with the proposed rule. This process is in 
accordance with 5 CFR. 1320.10.
    If you have any comments, especially on the estimated public burden 
or associated response time, or suggestions, or need a copy of the 
proposed new information collection instrument with instructions or 
additional information, please contact the Department as noted above. 
Written comments and suggestions from the public and affected agencies 
concerning the proposed new information collection instrument are 
encouraged.
    Your comments should address one or more of the following four 
points: (1) Whether the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility; (2) the accuracy of the 
agency's estimate of the burden of the collection of information, 
including the validity of the methodology and assumptions used; (3) how 
the Department could enhance the quality, utility, and clarity of the 
information to be collected; and (4) how the Department could minimize 
the burden of the collection of information on those who are to 
respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses).
    The new information collection instrument sponsored by the 
Department will apply to practitioners and has been designated as 
``Practitioner Registration Before the Executive Office for Immigration 
Review.'' The new collection will be administered through electronic 
means exclusively (Internet and/or dedicated terminals at EOIR 
locations).
    The collected information will be used to (1) determine whether or 
not a responding attorney or representative, as defined by 8 CFR 
1001.1(f) and (j) (as amended herein), meets the regulatory criteria to 
be authorized to represent aliens before EOIR (Board of Immigration 
Appeals or immigration judges) and (2) distribute a unique EOIR UserId 
and password to each registrant that will permit future access to an 
electronic EOIR filing system for submission and retrieval of 
information and documents pertaining to administrative immigration 
proceedings.
    The Department estimates an average response time for the new 
information collection instrument at 10 minutes per response, with a 
total number of respondents at 26,000 individuals. The total public 
burden associated with the new collection is 4,333 burden hours.

List of Subjects

8 CFR Part 1001

    Administrative practice and procedure, Aliens, Definitions, 
Immigration, Legal Services, Organization and functions (Government 
agencies).

8 CFR Part 1292

    Administrative practice and procedure, Immigration, Lawyers, 
Reporting and recordkeeping requirements.
    Accordingly, for the reasons set forth in the preamble, 8 CFR Parts 
1001 and 1003 are proposed to be amended as follows:

PART 1001--DEFINITIONS

    1. The authority citation for part 1001 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 6 U.S.C. 521, 522; 8 CFR part 2.

    2. In Sec.  1001.1, revise paragraphs (f) and (j) to read as 
follows:


Sec.  1001.1  Definitions.

* * * * *
    (f) The term attorney means any person who is a member in good 
standing of the bar of the highest court of any State, possession, 
territory, Commonwealth, or the District of Columbia, and is not under 
any order of any court suspending, enjoining, restraining, disbarring, 
or otherwise restricting him in the practice of law, and who is 
registered to practice with the Executive Office for Immigration Review 
pursuant to 8 CFR 1292.1.
* * * * *
    (j) The term representative means a person who is entitled to 
represent others as provided in 8 CFR 1292.1(a) (2), (3), (4), (5), 
(6), and 1292.1(b) and who is registered to practice with the Executive 
Office for Immigration Review pursuant to 8 CFR 1292.1.
* * * * *

[[Page 75164]]

PART 1292--REPRESENTATIVES AND APPEARANCES

    3. The authority citation for part 1292 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1302, 1359; 6 U.S.C. 521, 522.

    4. Section 1292.1 is amended by adding a new paragraph (f) to read 
as follows:


Sec.  1292.1  Representation of others.

* * * * *
    (f) Registration requirement for attorneys and representatives. The 
Director or his designee is authorized to register, and establish 
procedures for registering, attorneys and representatives, as defined 
by 8 CFR 1001.1(f) and (j), as a condition of practice before 
immigration judges or the Board of Immigration Appeals. Such 
registration procedures will include a requirement for electronic 
registration. The Director or his designee may administratively suspend 
from practice before the immigration judges and the Board any attorney 
or representative who fails to provide the following required 
registration information: practitioner name, address(es), date-of-
birth, last four digits of social security number, e-mail address (if 
applicable) and bar admission information (if applicable). After such a 
system has been established, an immigration judge may, under 
extraordinary and rare circumstances, permit an unregistered 
practitioner to appear at one, and only one, hearing if the immigration 
judge first acquires from the attorney or representative, on the 
record, the required registration information. An unregistered 
practitioner who is permitted to appear at a hearing in such 
circumstances shall complete the electronic registration process 
immediately after the hearing at which he or she is permitted to 
appear.

    Dated: December 22, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-32019 Filed 12-29-03; 8:45 am]
BILLING CODE 4410-30-P