[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Rules and Regulations]
[Pages 5225-5230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2149]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 / 
Rules and Regulations  

[[Page 5225]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

8 CFR Parts 1 and 292

RIN 1601-AA58
[Docket No. DHS-2009-0077]


Professional Conduct for Practitioners: Rules, Procedures, 
Representation, and Appearances

AGENCY: Office of the Secretary, DHS.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations governing representation and appearances by, and 
professional conduct of, practitioners in immigration practice before 
its components to: Conform the grounds of discipline and procedures 
regulations with those promulgated by the Department of Justice (DOJ); 
clarify who is authorized to represent applicants and petitioners in 
cases before DHS; remove duplicative rules, procedures, and authority; 
improve the clarity and uniformity of the existing regulations; make 
technical and procedural changes; and conform terminology. This rule 
enhances the integrity of the immigration adjudication process by 
updating and clarifying the regulation of professional conduct of 
immigration practitioners who practice before DHS.

DATES: Effective date: This interim rule is effective March 4, 2010.
    Comments: Written comments must be submitted on or before March 4, 
2010.

ADDRESSES: Comments may be submitted, identified by DHS Docket No. DHS-
2009-0077, by the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Rachel A. McCarthy, Disciplinary Counsel, Office of 
the Chief Counsel, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 70 Kimball Avenue, Room 103, S. 
Burlington, VT 05403. To ensure proper handling, please reference DHS 
Docket No. DHS-2009-0077 on correspondence. This mailing address may 
also be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Rachel A. McCarthy, Disciplinary 
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103, 
S. Burlington, VT 05403.

FOR FURTHER INFORMATION CONTACT: Rachel A. McCarthy, Disciplinary 
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration 
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103, 
S. Burlington, VT 05403, telephone (802) 660-5043 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim rule. DHS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this rule. 
Comments that will provide the most assistance to DHS in developing 
these procedures will reference a specific portion of the rule, explain 
the reason for any recommended change, and include data, information, 
or authority that support such recommended change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. DHS-2009-0077 for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Background

    DHS regulates immigration practitioners before U.S. Citizenship and 
Immigration Services (USCIS), U.S. Immigration and Customs Enforcement 
(ICE), and U.S. Customs and Border Protection (CBP). DOJ, through the 
Executive Office for Immigration Review (EOIR), regulates immigration 
practitioners before the Board of Immigration Appeals (Board) and the 
immigration courts. When DHS was established in 2003, DOJ duplicated 
the regulations on professional conduct for practitioners in the new 
chapter V in 8 CFR.
    DOJ updated its rules on Professional Conduct for Practitioners--
Rules of Procedures, and Representation and Appearances. 73 FR 44178 
(July 30, 2008) (proposed rule); 73 FR 76914 (Dec. 18, 2008) (final 
rule). This interim final rule conforms DHS regulations to the DOJ 
regulations to maintain a unified, consistent practice; clarifies 
existing regulations; and eliminates references to procedural matters 
that are solely within the authority of DOJ.
    In preparing this interim final rule, DHS reviewed the DOJ proposed 
rule, the four public comments submitted on the DOJ proposed rule, and 
the DOJ final rule. DHS is adopting this interim final rule for the 
reasons stated in the DOJ final rule and also considered its experience 
in administering the practitioner discipline process.

III. Changes Made by This Rule

    This interim final rule amends DHS regulations at 8 CFR parts 1 and 
292 to:
     Clarify who is authorized to represent applicants and 
petitioners before USCIS, ICE, and CBP;
     Conform the rules governing the authority of DHS to 
investigate complaints;
     Conform disciplinary charges against practitioners who 
appear before DHS with the regulations promulgated by DOJ;
     Improve the clarity and uniformity of the existing rules; 
and
     Incorporate miscellaneous technical and procedural changes 
necessitated by the creation of DHS.
    Definition of attorney. This rule amends the definition of 
``attorney'' at 8 CFR 1.1(f), to conform with DOJ's definition at 8 CFR 
1001.1(f), by adding the requirement that an attorney must be eligible 
to practice law in the bar of any State, possession, territory, or 
Commonwealth of the United States, or of the District of Columbia, in 
addition to the other requirements for attorneys

[[Page 5226]]

set forth in that regulation. State bar rules uniformly require 
licensed attorneys to maintain an active status in order to practice 
law; however, there has been some confusion as to the applicability of 
that requirement in determining eligibility to appear as a 
representative before DHS.
    Definition of practice. This rule amends the definition of the term 
``practice'' at 8 CFR 1.1(i) to reflect the creation of DHS, the 
transfer of the functions of the former Immigration and Naturalization 
Service (INS), and to update the definition to eliminate references to 
representational activities that occur before DOJ.
    Definition of preparation. This rule amends the definition of the 
term ``preparation'' at 8 CFR 1.1(k) to reflect the creation of DHS and 
the transfer of the functions of the former INS to DHS.
    Definition of representation. This rule amends the definition of 
the term ``representation'' at 8 CFR 1.1(m) to reflect the creation of 
DHS, the transfer of the functions of the former INS, and to eliminate 
the reference to representational activities that occur before DOJ.
    Representation of others. This rule amends 8 CFR 292.1(a) to 
include a reference to the limitations on appearances in application 
and petition proceedings in 8 CFR 103.2(a)(3) and amends 8 CFR 
292.1(a)(2) to clarify that law students and law graduates as defined 
under 8 CFR 1292.1(a)(4) appearing before DHS must be students or 
graduates of accredited law schools in the United States. There have 
been many instances of graduates of foreign law schools attempting to 
represent parties in DHS proceedings under this provision and this 
clarification is necessary to ensure that only eligible individuals are 
permitted to appear as representatives in immigration proceedings. This 
rule also amends 8 CFR 292.1(a)(2) and (6) to reflect the creation of 
DHS and the transfer of the functions of the former INS.
    Grounds of discipline. This rule adopts the grounds of discipline 
in 8 CFR 1003.102 in their entirety and applies those grounds of 
discipline to practitioners before DHS. 8 CFR 292.3(b). Under this 
provision, DHS may seek disciplinary sanctions against a practitioner 
who falls within one or more of the categories enumerated in 8 CFR 
1003.102, as revised by DOJ. By adopting all of the grounds of 
discipline, this rule clarifies that 8 CFR 1003.102(k) and (l) apply as 
grounds for discipline by DHS as well as EOIR. This change will 
encourage practitioners to timely appear for scheduled interviews and 
other case-related meetings before DHS officials and to properly 
represent their clients in DHS proceedings.
    Immediate suspension. This rule amends 8 CFR 292.3(c) to clarify 
that DHS may petition to the Board for the immediate suspension of an 
attorney who, while a disciplinary investigation or proceeding is 
pending, has resigned from practice before the highest court of any 
State, possession, territory, or Commonwealth of the United States, or 
the District of Columbia, or any Federal Court, or who has been placed 
on an interim suspension by such body pending a final resolution of the 
underlying disciplinary matter. This change would conform the language 
in DHS regulations to the DOJ rule.
    Preliminary inquiry report. In this rule, 8 CFR 292.3(c)(3), as 
revised, limits the circumstances under which DHS will prepare and 
serve a copy of a preliminary inquiry report on the practitioner with 
the Notice of Intent to Discipline. In summary disciplinary 
proceedings, DHS must file a certified copy of the order, judgment and/
or record evidencing the underlying criminal conviction or discipline 
with the Board along with the Notice of Intent to Discipline. Current 
regulations require that DHS file a preliminary inquiry report with all 
Notices of Intent to Discipline. A preliminary inquiry report 
summarizes the source of any information uncovered in the investigation 
of a disciplinary complaint, including the administrative record of 
immigration proceedings, a record of state disciplinary proceedings, or 
a record of criminal conviction. In summary disciplinary proceedings 
before the Board based upon a conviction for a serious crime, 
resignation while a disciplinary investigation or proceeding is 
pending, or disciplinary action by a court or other disciplinary 
authority under 8 CFR 1003.103(b)(2), the preliminary inquiry report 
summarizes records that are included in the disciplinary proceeding 
file as attachments to the Petition for Immediate Suspension or the 
Notice of Intent to Discipline. In all other cases, DHS will issue a 
Notice of Intent to Discipline to the practitioner containing a 
statement of the charge(s) and a preliminary inquiry report. The rule 
also clarifies that DHS will promptly initiate summary disciplinary 
proceedings against any practitioner upon receipt of certified copies 
of the required documents.
    Public notice of suspension. This rule revises 8 CFR 292.3(h)(3) to 
clarify that DHS may publicly post notices of immediate suspension. 
This change is necessary to ensure consistency with DOJ regulations at 
8 CFR 1003.106(c), which currently provide that notice of disciplinary 
sanctions may be posted publicly.
    Filing of complaints of misconduct occurring before DHS. This rule 
revises the procedures in 8 CFR 292.3(d) for filing complaints with 
allegations of professional misconduct by practitioners in matters 
before DHS. The changes are necessary to reflect current requirements 
resulting from the creation of DHS and its component agencies.
    Finally, this rule includes technical changes such as removing 
references to the ``Office of the General Counsel of the Service,'' the 
``Immigration and Naturalization Service,'' or ``INS,'' and other out-
of-date terms to conform the regulations with current DHS terminology 
and structure. This rule corrects technical errors, and implements 
minor changes to improve regulatory structure and readability in the 
affected sections.

IV. Administrative Procedure Act

    This rule relates to agency practice and procedure and is not 
subject to the requirements of advance notice and comment under the 
Administrative Procedure Act, 5 U.S.C. 553(b)(A). To the extent that 
this interim final rule is a rule of agency practice and procedure 
under 5 U.S.C. 553(b)(A), DHS is requesting public comments as a matter 
of discretion.
    Moreover, to the extent that a provision of this rule could be 
construed as not being a matter of agency procedure, DHS has determined 
that delaying the effect of this rule during the period of public 
comment would be impractical, unnecessary and contrary to the public 
interest. If the implementation of the provisions of this rule were 
delayed pending public comments, the Board of Immigration Appeals and 
Adjudicating Officials would be required to conduct practitioner 
disciplinary proceedings under one set of regulations for cases 
initiated by EOIR disciplinary counsel and under another for cases 
initiated by DHS disciplinary counsel. As discussed above, DOJ has 
promulgated a final rule amending the relevant rules of professional 
conduct for practitioners and representation and appearances. 73 FR 
76914 (Dec. 18, 2008). As a result of the amendments made by the DOJ 
rule, some provisions of the existing DHS regulations are inconsistent 
with the DOJ regulations on the same subject matter for immigration 
practitioners in a separate but often overlapping practice area. 
Therefore, to avoid this result, DHS has determined that this rule 
should be implemented as soon as possible to avoid disparate or

[[Page 5227]]

inconsistent disciplinary standards. This rule conforms to the DOJ 
rule. In promulgating this final rule, DHS has considered the record of 
proceedings before DOJ, including the public comments.
    Accordingly, DHS has determined that it would be impractical, 
unnecessary and contrary to the public interest to delay promulgation 
of this rule pending review of public comments. 5 U.S.C. 553(b)(B). 
This interim final rule is effective 30 days after publication in the 
Federal Register. DHS invites comments and will address those comments 
in the final rule.

V. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121), requires Federal agencies to consider the 
potential impact of regulations on small businesses, small governmental 
jurisdictions, and small organizations during the development of their 
rules. When a rule is exempt from APA notice and comment requirements, 
however, the RFA does not require an agency to prepare a regulatory 
flexibility analysis. This rule makes changes for which notice and 
comment are not required under the APA; therefore DHS is not required 
to prepare a regulatory flexibility analysis for this rule.

VI. 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.

VII. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Act of 1996. 5 U.S.C. 804(2). 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.

VIII. Executive Order 12866

    This rule is not a ``significant regulatory action'' under 
Executive Order 12866, section 3(f). This rule adds no costs to the 
agency, imposes no direct costs to the public, has no budgetary impact, 
nor does it raise any novel legal or policy issues. Thus, the Office of 
Management and Budget (OMB) has not reviewed this rule.

IX. 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, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

X. Executive Order 12988 Civil Justice Reform

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

XI. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule. This rule does not impose 
any new, or modify an existing, reporting or recordkeeping requirements 
under the Paperwork Reduction Act.

List of Subjects

8 CFR Part 1

    Administrative practice and procedures, Immigration.

8 CFR Part 292

    Administrative practice and procedures, Immigration, Lawyer, 
Reporting and recordkeeping requirements.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 1--DEFINITIONS

0
1. The authority citation for part 1 is revised to read as follows:

    Authority:  5 U.S.C. 301; 6 U.S.C. 112; 8 U.S.C. 1101 and 1103.


0
2. Section 1.1 is amended by revising paragraphs (b), (f) (i), (k), and 
(m) to read as follows:


Sec.  1.1  Definitions.

* * * * *
    (b) The term Act or INA means the Immigration and Nationality Act, 
as amended.
* * * * *
    (f) The term attorney means any person who is eligible to practice 
law in, and is a member in good standing of the bar of, the highest 
court of any State, possession, territory, or Commonwealth of the 
United States, or of the District of Columbia, and is not under any 
order suspending, enjoining, restraining, disbarring, or otherwise 
restricting him or her in the practice of law.
* * * * *
    (i) The term practice means the act or acts of any person appearing 
in any case, either in person or through the preparation or filing of 
any brief or other document, paper, application, or petition on behalf 
of another person or client before or with DHS.
* * * * *
    (k) The term preparation, constituting practice, means the study of 
the facts of a case and the applicable laws, coupled with the giving of 
advice and auxiliary activities, including the incidental preparation 
of papers, but does not include the lawful functions of a notary public 
or service consisting solely of assistance in the completion of blank 
spaces on printed DHS forms, by one whose remuneration, if any, is 
nominal and who does not hold himself or herself out as qualified in 
legal matters or in immigration and naturalization procedure.
* * * * *
    (m) The term representation before DHS includes practice and 
preparation as defined in paragraphs (i) and (k) of this section.
* * * * *

PART 292--REPRESENTATION AND APPEARANCES

0
3. The authority citation for part 292 is revised to read as follows:

    Authority: 6 U.S.C. 112; 8 U.S.C. 1103, 1252b, 1362.


0
4. Section 292.1 is amended by:
0
a. Revising paragraph (a) introductory text;
0
b. Revising paragraphs (a)(2) introductory text and (a)(2)(iv);
0
c. Revising paragraph (a)(3)(iv); and by
0
d. Revising paragraph (a)(6).
    The revisions read as follows:


Sec.  292.1  Representation of others.

    (a) A person entitled to representation may be represented by any 
of the following, subject to the limitations in 8 CFR 103.2(a)(3):
* * * * *

[[Page 5228]]

    (2) Law students and law graduates not yet admitted to the bar. A 
law student who is enrolled in an accredited U.S. law school, or a 
graduate of an accredited U.S. law school who is not yet admitted to 
the bar, provided that:
* * * * *
    (iv) The law student's or law graduate's appearance is permitted by 
the DHS official before whom he or she wishes to appear. The DHS 
official may require that a law student be accompanied by the 
supervising faculty member, attorney, or accredited representative.
    (3) * * *
    (iv) His or her appearance is permitted by the DHS official before 
whom he or she seeks to appear, provided that such permission will not 
be granted with respect to any individual who regularly engages in 
immigration and naturalization practice or preparation, or holds 
himself or herself out to the public as qualified to do so.
* * * * *
    (6) Attorneys outside the United States. An attorney, other than 
one described in 8 CFR 1.1(f), who is licensed to practice law and is 
in good standing in a court of general jurisdiction of the country in 
which he or she resides and who is engaged in such practice, may 
represent parties in matters before DHS, provided that he or she 
represents persons only in matters outside the geographical confines of 
the United States as defined in section 101(a)(38) of the Act, and that 
the DHS official before whom he or she wishes to appear allows such 
representation as a matter of discretion.
* * * * *

0
4. Section 292.3 is revised to read as follows:


Sec.  292.3  Professional conduct for practitioners--Rules and 
procedures.

    (a) General provisions. (1) Authority to sanction. An adjudicating 
official or the Board of Immigration Appeals (Board) may impose 
disciplinary sanctions against any practitioner if it finds it to be in 
the public interest to do so. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before DHS when such person has engaged in criminal, 
unethical, or unprofessional conduct, or in frivolous behavior, as set 
forth in 8 CFR 1003.102. In accordance with the disciplinary 
proceedings set forth in 8 CFR part 1003, an adjudicating official or 
the Board may impose any of the following disciplinary sanctions:
    (i) Expulsion which is permanent, from practice before the Board 
and the Immigration Courts, or DHS, or before all three authorities;
    (ii) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts, or DHS, or before all 
three authorities;
    (iii) Public or private censure; or
    (iv) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (2) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
8 CFR 1.1(f) who does not represent the federal government, or any 
representative as defined in 8 CFR 1.1(j). Attorneys employed by DHS 
will be subject to discipline pursuant to paragraph (i) of this 
section.
    (b) Grounds of discipline. It is deemed to be in the public 
interest for the adjudicating official or the Board to impose 
disciplinary sanctions as described in paragraph (a)(1) of this section 
against any practitioner who falls within one or more of the categories 
enumerated in 8 CFR 1003.102. These categories do not constitute the 
exclusive grounds for which disciplinary sanctions may be imposed in 
the public interest. Nothing in this regulation should be read to 
denigrate the practitioner's duty to represent zealously his or her 
client within the bounds of the law.
    (c) Immediate suspension and summary disciplinary proceedings; duty 
of practitioner to notify DHS of conviction or discipline. (1) 
Immediate suspension proceedings. Immediate suspension proceedings will 
be conducted in accordance with the provisions set forth in 8 CFR 
1003.103. DHS shall file a petition with the Board to suspend 
immediately from practice before DHS any practitioner who has been 
found guilty of, or pleaded guilty or nolo contendere to, a serious 
crime, as defined in 8 CFR 1003.102(h), any practitioner who has been 
suspended or disbarred by, or while a disciplinary investigation or 
proceeding is pending has resigned from, the highest court of any 
State, possession, territory, or Commonwealth of the United States, or 
the District of Columbia, or any Federal court; or who has been placed 
on an interim suspension pending a final resolution of the underlying 
disciplinary matter.
    (2) Copies and proof of service. A copy of the petition will be 
forwarded to EOIR, which may submit a written request to the Board that 
entry of any order immediately suspending a practitioner before DHS 
also apply to the practitioner's authority to practice before the Board 
and the Immigration Courts. Proof of service on the practitioner of 
EOIR's request to broaden the scope of any immediate suspension must be 
filed with the Board.
    (3) Summary disciplinary proceedings. Summary disciplinary 
proceedings will be conducted in accordance with the provisions set 
forth in 8 CFR 1003.103. DHS shall promptly initiate summary 
disciplinary proceedings against any practitioner described in 
paragraph (c)(1) of this section by the issuance of a Notice of Intent 
to Discipline, upon receipt of a certified copy of the order, judgment, 
and/or record evidencing the underlying criminal conviction, 
discipline, or resignation, and accompanied by a certified copy of such 
document. Delays in initiation of summary disciplinary proceedings 
under this section will not impact an immediate suspension imposed 
pursuant to paragraph (c)(1) of this section. Any such proceeding will 
not be concluded until all direct appeals from an underlying criminal 
conviction have been completed.
    (4) Duty of practitioner to notify DHS of conviction or discipline. 
Within 30 days of the issuance of the initial order, even if an appeal 
of the conviction or discipline is pending, of any conviction or 
discipline for professional misconduct entered on or after July 27, 
2000, a practitioner must notify DHS disciplinary counsel if the 
practitioner has been: Found guilty of, or pleaded guilty or nolo 
contendere to, a serious crime, as defined in 8 CFR 1003.102(h); 
suspended or disbarred by, or while a disciplinary investigation or 
proceeding is pending has resigned from, the highest court of any 
State, possession, territory, or Commonwealth of the United States, or 
the District of Columbia, or any Federal court; or placed on an interim 
suspension pending a final resolution of the underlying disciplinary 
matter. Failure to notify DHS disciplinary counsel as required may 
result in immediate suspension as set forth in paragraph (c)(1) of this 
section.
    (d) Filing of complaints of misconduct occurring before DHS; 
preliminary inquiry; resolutions; referral of complaints. (1) Filing of 
complaints of misconduct occurring before DHS. Complaints of criminal, 
unethical, or unprofessional conduct, or of frivolous behavior by a 
practitioner before DHS must be filed with the DHS disciplinary 
counsel. Disciplinary complaints must be submitted in writing and must 
state in detail the information that supports the basis for the 
complaint, including,

[[Page 5229]]

but not limited to, the names and addresses of the complainant and the 
practitioner, the date(s) of the conduct or behavior, the nature of the 
conduct or behavior, the individuals involved, the harm or damages 
sustained by the complainant, and any other relevant information. The 
DHS disciplinary counsel will notify EOIR disciplinary counsel of any 
disciplinary complaint that pertains, in whole or in part, to a matter 
before the Board or the Immigration Courts.
    (2) Preliminary inquiry. Upon receipt of a disciplinary complaint 
or on its own initiative, the DHS disciplinary counsel will initiate a 
preliminary inquiry. If a complaint is filed by a client or former 
client, the complainant thereby waives the attorney-client privilege 
and any other applicable privilege, to the extent necessary to conduct 
a preliminary inquiry and any subsequent proceeding based thereon. If 
the DHS disciplinary counsel determines that a complaint is without 
merit, no further action will be taken. The DHS disciplinary counsel 
may, in his or her discretion, close a preliminary inquiry if the 
complainant fails to comply with reasonable requests for assistance, 
information, or documentation. The complainant and the practitioner 
will be notified of any such determination in writing.
    (3) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The DHS disciplinary counsel may, in his or her 
discretion, issue warning letters and admonitions, and may enter into 
agreements in lieu of discipline, prior to the issuance of a Notice of 
Intent to Discipline.
    (e) Notice of Intent to Discipline. (1) Issuance of Notice to 
Practitioner. If, upon completion of the preliminary inquiry, the DHS 
disciplinary counsel determines that sufficient prima facie evidence 
exists to warrant charging a practitioner with professional misconduct 
as set forth in 8 CFR 1003.102, it will file with the Board and issue 
to the practitioner who was the subject of the preliminary inquiry a 
Notice of Intent to Discipline. Service of this notice will be made 
upon the practitioner by either certified mail to his or her last known 
address, as defined in paragraph (e)(2) of this section, or by personal 
delivery. Such notice shall contain a statement of the charge(s), a 
copy of the preliminary inquiry report, the proposed disciplinary 
sanctions to be imposed, the procedure for filing an answer or 
requesting a hearing, and the mailing address and telephone number of 
the Board. In summary disciplinary proceedings brought pursuant to 
Sec.  292.3(c), a preliminary inquiry report is not required to be 
filed with the Notice of Intent to Discipline. Notice of Intent to 
Discipline proceedings will be conducted in accordance with the 
provisions set forth in 8 CFR 1003.105 and 1003.106.
    (2) Practitioner's address. For the purposes of this section, the 
last known address of a practitioner is the practitioner's address as 
it appears in DHS records if the practitioner is actively representing 
an applicant or petitioner before DHS on the date the DHS disciplinary 
counsel issues the Notice of Intent to Discipline. If the practitioner 
does not have a matter pending before DHS on the date of the issuance 
of a Notice of Intent to Discipline, then the last known address for a 
practitioner will be as follows:
    (i) Attorneys in the United States: The attorney's address that is 
on record with a state jurisdiction that licensed the attorney to 
practice law.
    (ii) Accredited representatives: The address of a recognized 
organization with which the accredited representative is affiliated.
    (iii) Accredited officials: The address of the embassy of the 
foreign government that employs the accredited official.
    (iv) All other practitioners: The address for the practitioner that 
appears in DHS records for the application or petition proceeding in 
which the DHS official permitted the practitioner to appear.
    (3) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. 
A copy of the Notice of Intent to Discipline shall be forwarded to the 
EOIR disciplinary counsel. Under Department of Justice regulations in 8 
CFR chapter V, the EOIR disciplinary counsel may submit a written 
request to the Board or the adjudicating official requesting that any 
discipline imposed upon a practitioner which restricts his or her 
authority to practice before DHS also apply to the practitioner's 
authority to practice before the Board and the Immigration Courts. 
Proof of service on the practitioner of any request to broaden the 
scope of the proposed discipline must be filed with the Board or the 
adjudicating official.
    (4) Answer. The practitioner shall file a written answer or a 
written request for a hearing to the Notice of Intent to Discipline in 
accordance with 8 CFR 1003.105. If a practitioner fails to file a 
timely answer, proceedings will be conducted according to 8 CFR 
1003.105.
    (f) Right to be heard and disposition; decision; appeal; and 
reinstatement after expulsion or suspension. Upon the filing of an 
answer, the matter shall be heard, decided, and appeals filed according 
to the procedures set forth in 8 CFR 1003.106. Reinstatement 
proceedings after expulsion or suspension shall be conducted according 
to the procedures set forth in 8 CFR 1003.107.
    (g) Referral. In addition to, or in lieu of, initiating 
disciplinary proceedings against a practitioner, the DHS disciplinary 
counsel may notify any appropriate Federal and/or state disciplinary or 
regulatory authority of any complaint filed against a practitioner. Any 
final administrative decision imposing sanctions against a practitioner 
(other than a private censure) will be reported to any such 
disciplinary or regulatory authority in every jurisdiction where the 
disciplined practitioner is admitted or otherwise authorized to 
practice.
    (h) Confidentiality. (1) Complaints and preliminary inquiries. 
Except as otherwise provided by law or regulation or as authorized by 
this regulation, information concerning complaints or preliminary 
inquiries is confidential. A practitioner whose conduct is the subject 
of a complaint or preliminary inquiry, however, may waive 
confidentiality, except that the DHS disciplinary counsel may decline 
to permit a waiver of confidentiality if it is determined that an 
ongoing preliminary inquiry may be substantially prejudiced by a public 
disclosure before the filing of a Notice of Intent to Discipline.
    (i) Disclosure of information for the purpose of protecting the 
public. The DHS disciplinary counsel may disclose information 
concerning a complaint or preliminary inquiry for the protection of the 
public when the necessity for disclosing information outweighs the 
necessity for preserving confidentiality in circumstances including, 
but not limited to, the following:
    (A) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the DHS disciplinary counsel may define the scope of 
information disseminated and may limit the disclosure of information to 
specified individuals or entities;
    (B) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (C) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such an authority;

[[Page 5230]]

    (D) A practitioner is the subject of multiple disciplinary 
complaints and the DHS disciplinary counsel has determined not to 
pursue all of the complaints. The DHS disciplinary counsel may inform 
complainants whose allegations have not been pursued of the status of 
any other preliminary inquiries or the manner in which any other 
complaint(s) against the practitioner have been resolved.
    (ii) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The DHS disciplinary counsel may, in his or her 
discretion, disclose documents and information concerning complaints 
and preliminary inquiries to the following individuals or entities:
    (A) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (B) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (C) To agencies and other jurisdictions responsible for conducting 
disciplinary investigations or proceedings;
    (D) To the complainant or a lawful designee; and
    (E) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (2) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.
    (3) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in 8 CFR 1003.106(a)(v).
    (i) Discipline of government attorneys. Complaints regarding the 
conduct or behavior of DHS attorneys shall be directed to the Office of 
the Inspector General, DHS. If disciplinary action is warranted, it 
will be administered pursuant to the Department's attorney discipline 
procedures.


0
5. Section 292.4 is amended by:
0
a. Revising paragraph (a); and
0
b. Revising the term ``Service'' to read ``DHS'' wherever that term 
appears in paragraph (b).
    The revisions read as follows:


Sec.  292.4  Appearances.

    (a) Authority to appear and act. An appearance must be filed on the 
appropriate form as prescribed by DHS by the attorney or accredited 
representative appearing in each case. The form must be properly 
completed and signed by the petitioner, applicant, or respondent to 
authorize representation in order for the appearance to be recognized 
by DHS. The appearance will be recognized by the specific immigration 
component of DHS in which it was filed until the conclusion of the 
matter for which it was entered. This does not change the requirement 
that a new form must be filed with an appeal filed with the 
Administrative Appeals Office of USCIS. Substitution may be permitted 
upon the written withdrawal of the attorney or accredited 
representative of record or upon the filing of a new form by a new 
attorney or accredited representative. When an appearance is made by a 
person acting in a representative capacity, his or her personal 
appearance or signature will constitute a representation that under the 
provisions of this chapter he or she is authorized and qualified to 
appear as a representative as provided in 8 CFR 103.2(a)(3) and 292.1. 
Further proof of authority to act in a representative capacity may be 
required.
* * * * *


Sec.  292.6  [Amended]


0
6. Section 292.6 is amended by revising the term ``part 3 of this 
chapter'' to read ``8 CFR part 1003''.

Janet Napolitano,
Secretary.
[FR Doc. 2010-2149 Filed 2-1-10; 8:45 am]
BILLING CODE 9110-9B-P