[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55659-55662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21679]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / 
Proposed Rules  

[[Page 55659]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 181; AG Order No. 3450-2014]
RIN 1125-AA78


Separate Representation for Custody and Bond Proceedings

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to amend the Executive Office for 
Immigration Review (EOIR) regulations relating to the representation of 
aliens in custody and bond proceedings. Specifically, this rulemaking 
proposes to allow a representative before EOIR to enter an appearance 
in custody and bond proceedings without such appearance constituting an 
entry of appearance for all of the alien's proceedings before the 
Immigration Court.

DATES: Written comments must be submitted on or before November 17, 
2014. Comments received by mail will be considered timely if they are 
postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until midnight Eastern 
Time at the end of that day.

ADDRESSES: Please submit written comments to Jeff Rosenblum, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 20530. To ensure proper handling, 
please reference RIN No. 1125-AA78 or EOIR docket No. 181 on your 
correspondence. You may submit comments electronically or view an 
electronic version of this proposed rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 20530; telephone (703) 305-0470 (not a 
toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Such information includes personally identifiable 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifiable information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONALLY 
IDENTIFIABLE INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personally identifiable information you do not 
want posted online in the first paragraph of your comment and identify 
what information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot 
effectively be redacted, all or part of that comment may not be posted 
on http://www.regulations.gov.
    Personally identifiable information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the For Further Information Contact paragraph.

II. Background

    The Immigration and Nationality Act (INA) provides that aliens 
appearing before an immigration judge ``shall have the privilege of 
being represented, at no expense to the Government, by counsel of the 
alien's choosing who is authorized to practice in such proceedings.'' 
INA sec. 240(b)(4) (8 U.S.C. 1229a(b)(4)); see also INA sec. 292 (8 
U.S.C. 1362). In order to represent an alien before EOIR, a 
representative must file a Notice of Entry of Appearance with the 
Immigration Court or the Board of Immigration Appeals (Board). See 8 
CFR 1003.17, 1003.3(a)(3). A representative who enters his or her 
appearance before the Immigration Court is the representative of record 
for the alien in all of the alien's proceedings, including removal or 
deportation proceedings and, if the alien is detained, custody and bond 
proceedings. To the extent a representative wishes to represent an 
alien solely in custody and bond proceedings, and not in any other 
proceedings before the Immigration Court, he or she must file a motion 
to withdraw representation after the alien's custody and bond 
proceedings conclude. Cf. Matter of N-K- & V-S-, 21 I&N Dec. 879, 880, 
881 n.2 (BIA 1997). Whether to grant or deny that motion is within the 
sole discretion of the immigration judge presiding over the particular 
case. See 8 CFR 1003.17(b).
    Over the past several years, EOIR has seen a substantial increase 
in the number of aliens appearing before its Immigration Courts. At the 
end of fiscal year (FY) 2013, there were 350,330 cases pending at the 
Immigration Courts, marking an increase of 22,901 cases pending above 
those at the end of FY 2012. See 2013 EOIR Stat. Y.B. W1, available at 
http://www.justice.gov/eoir/statspub/fy13syb.pdf.\1\
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    \1\ See also Improving Efficiency and Ensuring Justice in the 
Immigration Court System: Hearing Before the S. Comm. on the 
Judiciary, 112th Cong. 2 (May 18, 2011) (statement of Juan P. Osuna, 
Director, EOIR) (``Director's Testimony'') (discussing the increase 
in the number of matters received by the Immigration Court), 
available at http://www.justice.gov/eoir/press/2011/EOIRtestimony05182011.pdf.
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    Moreover, a significant number of aliens appeared before EOIR 
without representation. Forty-one percent of the aliens whose 
immigration proceedings were completed in FY 2013, or 71,653 aliens, 
were unrepresented. See 2013 EOIR Stat. Y.B. F1. Non-detained aliens 
are much more likely to be represented before the Immigration Courts, 
as are aliens who have been released from detention. Of the 265,708 
initial case

[[Page 55660]]

completions for detained aliens from FY 2011 to FY 2013, 210,633 
aliens, or 79 percent, were unrepresented. By contrast, of the 214,506 
initial case completions during the same timeframe for aliens who were 
never detained, only 50,075 aliens, or 23 percent, were unrepresented. 
Similarly, of the 90,316 initial case completions during the same 
timeframe for detained aliens who were released, only 25,426 aliens, or 
28 percent, were unrepresented.
    Immigration proceedings involving unrepresented aliens often 
require more time than those involving represented aliens. For 
instance, immigration judges may need to spend additional time to 
ensure that unrepresented aliens understand the nature and purpose of 
the removal process, as well as their rights and responsibilities. An 
unrepresented alien may also ask for a continuance (or continuances) of 
his or her proceedings to obtain counsel. By contrast, aliens who are 
represented are likely to have discussed their proceedings, including 
their rights and responsibilities, with their counsel in advance of a 
hearing, and thereby avoid additional delays of the kind that may occur 
with respect to aliens who lack representation.

III. Proposed Amendment To Permit Separate Appearances

    In order for a representative to enter an appearance solely for 
custody and bond proceedings before the Immigration Courts, EOIR is 
proposing to amend its regulations to specifically allow separate 
appearances in such proceedings. Permitting such separate appearances 
is expected to encourage more attorneys and accredited representatives 
to agree to represent aliens who would otherwise appear pro se at their 
custody and bond proceedings, which, in turn, will benefit the public 
by increasing the efficiency of the Immigration Courts.
    Providing for separate appearances in custody and bond proceedings 
has been of significant and longstanding interest to public 
stakeholders. On September 28, 2012, EOIR published an advance notice 
of proposed rulemaking (ANPRM), which requested the public's input on 
potential amendments to the EOIR regulations pursuant to the Department 
of Justice's Plan for Retrospective Analysis of Existing Rules 
(Plan).\2\ See Retrospective Regulatory Review Under E.O. 13563, 77 FR 
59567 (Sept. 28, 2012). The ANPRM included notification that EOIR 
planned to evaluate whether to propose a rule providing for separate 
appearances in bond proceedings. See 77 FR 59569.\3\ In response to the 
ANPRM, EOIR received comments from the public in support of permitting 
such appearances. Specifically, commenters noted that permitting 
separate appearances would increase the level of representation of 
aliens in custody and bond proceedings and improve the efficiency of 
those proceedings.
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    \2\ Following the issuance of Executive Order 13563, the 
Department issued the Plan on August 22, 2011, identifying several 
regulations that it planned to review during the next two years. 
Pursuant to the Plan, the Department is conducting a retrospective 
review of portions of the EOIR regulations, including part 1003 of 
chapter V of title 8 of the Code of Federal Regulations.
    \3\ The ANPRM also provides notice that the Department intends 
to standardize citations and terms to ensure consistency within the 
EOIR regulations and with respect to the DHS regulations. As 
indicated in the Plan and discussed in the ANPRM, the revisions to 
this rule include updated references to DHS, by changing the term 
``the Service'' to ``DHS.''
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    These comments echoed statements made previously by public interest 
groups that have indicated that more attorneys would be willing to 
represent detained aliens, including as pro bono counsel, if they were 
able to enter an appearance exclusively for custody and bond 
proceedings. For example, since 2007, the American Immigration Lawyers 
Association (AILA), in public meetings with EOIR, has continuously 
appealed to EOIR to amend its rules to allow representatives to enter a 
separate appearance on behalf of an alien for custody and bond 
proceedings, without such appearance also constituting an appearance 
for removal and deportation proceedings. Specifically, AILA has stated 
that separate appearances ``encourage pro bono representation and 
provide greater flexibility for attorneys and clients to agree on the 
scope of representation based on the client's needs and resources.'' 
EOIR/AILA Liaison Meeting Agenda Questions and Answers, March 29, 2012, 
at 10.\4\
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    \4\ EOIR/AILA Liaison Meeting Questions and Answers are 
available at http://www.justice.gov/eoir/ailaarchive.htm. AILA also 
raised the issue of separate appearances at several other EOIR/AILA 
Liaison meetings, including those held on October 10, 2007; October 
21, 2008; and April 6, 2011.
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    In light of the anticipated benefits and public support detailed 
above, EOIR has decided to promulgate this separate rulemaking 
proposing to amend its regulations at 8 CFR 1003.17 to explicitly allow 
for separate appearances in custody and bond proceedings. Under EOIR's 
regulations, such proceedings are separate and apart from removal and 
deportation proceedings. See 8 CFR 1003.19(d); Matter of Guerra, 24 I&N 
Dec 37, 40 n.2 (BIA 2006); Matter of R-S-H-, 23 I&N Dec 629, 630 n.7 
(BIA 2003). This proposed rule effectuates that separation by requiring 
Notices of Entry of Appearance to be filed separately for different 
types of proceedings. Specifically, an attorney or representative who 
appears on behalf of an alien in his or her custody and bond 
proceedings will not be held responsible for appearing, filing 
documents, receiving notices, or any of the other duties enumerated in 
8 CFR 1292.5(a) in the alien's other proceedings, unless and until the 
attorney or representative files a Notice of Entry of Appearance in 
such proceedings.
    The Board has held in a precedential decision that a representative 
of record cannot enter a ``limited'' appearance in immigration 
proceedings. See Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986). 
In Matter of Velasquez, the Board cited to the regulations in effect at 
the time, 8 CFR 292.1, 292.4 and 292.5(a) (1986),\5\ which identified 
who was eligible to appear as a representative, the form a 
representative needed to file to enter an appearance, and the notice 
requirements. Those regulations did not include a provision for limited 
or separate appearances. This proposed rule leaves intact the holding 
in Matter of Velasquez, as a separate appearance in custody and bond 
proceedings would not be considered a ``limited'' appearance, which is 
generally understood to refer to a limit in the scope of representation 
required by a representative.\6\ By contrast, this proposed rule would 
require a representative of record to represent an alien in all aspects 
of each separate type of proceeding, unless the Immigration Court 
grants a motion to withdraw or substitute counsel.
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    \5\ These regulations remain substantially unchanged, except 
that former sections 292.1, 292.4 and 292.5(a) of the regulations 
were redesignated as sections 1292.1, 1292.4, and 1292.5(a) in 2003 
in response to the Homeland Security Act of 2002, which transferred 
the responsibilities of the former Immigration and Naturalization 
Service to the newly created Department of Homeland Security. See 68 
Fed. Reg. 10350 (Mar. 5, 2003).
    \6\ All fifty states and the District of Columbia have rules 
governing limited appearances, many of which permit an attorney to 
limit the scope of representation in a particular matter to, for 
example, the preparation of court submissions without requiring the 
attorney to appear as counsel of record. See http://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/limited_appearances.html.
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    Under the current regulations, representatives are already required 
to file a Notice of Entry of Appearance on Form EOIR-28 in any 
proceedings before an immigration judge. See 8 CFR 1003.17. Under this 
proposed amendment to EOIR's regulations, representatives will continue 
to be

[[Page 55661]]

required to file a Form EOIR-28 in custody and bond proceedings as 
required by 8 CFR 1003.17. However, the Form EOIR-28 will be amended to 
require a representative to indicate if he or she is entering an 
appearance for custody and bond proceedings only, any other proceedings 
only, or for all proceedings.
    The Department welcomes public comment on the proposed amendments 
to EOIR's regulations providing for separate appearances before the 
Immigration Court for custody and bond proceedings.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities. The rule will not regulate ``small 
entities,'' as that term is defined in 5 U.S.C. 601(6).

B. 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.

C. 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 (SBREFA), 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.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    The Department has determined that this rule is not a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review and, therefore, it has not been reviewed 
by the Office of Management and Budget. Nevertheless, the Department 
certifies that this regulation has been drafted in accordance with the 
principles of Executive Order 12866, section 1(b), and Executive Order 
13563. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including consideration of potential economic, 
environmental, public health, and safety effects, distributive impacts, 
and equity.
    The benefits of this proposed rule include increased representation 
of detained aliens by permitting a representative to enter an 
appearance before the Immigration Court for the discrete task of 
securing a bond or release from detention, without requiring the 
representative also to represent the alien in all of the alien's 
immigration proceedings. The public will benefit from this amendment to 
the regulations, because the amendment will make it easier for aliens 
who may not be able to afford to hire an attorney for all of their 
proceedings before the Immigration Court to at least be able to be 
represented during their custody and bond proceedings. The Department 
anticipates that this rule will also have a positive economic impact on 
the Department, because increasing the number of aliens who are 
represented in their custody and bond proceedings will enable 
immigration judges to adjudicate proceedings in a more effective and 
timely manner, adding to the overall efficiency of immigration 
proceedings. The Department does not foresee any burdens to the public 
or the Department.

E. Executive Order 13132 (Federalism)

    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 preparation 
of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule has been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    The information collection requirement (Form EOIR-28) contained in 
this rule has been previously approved by the Office of Management and 
Budget under the provisions of the Paperwork Reduction Act. This 
proposed rule contains revised recordkeeping and reporting 
requirements. Specifically, EOIR will collect additional information on 
the Notice of Entry of Appearance form indicating the type of 
proceeding(s) for which an attorney or representative is entering his 
or her appearance. Accordingly, the Department submitted a copy of this 
rule to the Office of Management and Budget.

List of Subjects

8 CFR Part 1003

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

    Accordingly, for the reasons stated in the preamble, the Attorney 
General is proposing to amend part 1003 of chapter V of title 8 of the 
Code of Federal Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

0
2. Amend Sec.  1003.17 by revising paragraph (a), to read as follows:


Sec.  1003.17  Appearances

    (a) In any proceeding before an Immigration Judge in which the 
alien is represented, the attorney or representative shall file a 
Notice of Entry of Appearance on Form EOIR-28 with the Immigration 
Court, and shall serve a copy of the Notice of Entry of Appearance on 
the DHS as required by Sec.  1003.32(a). The entry of appearance of an 
attorney or representative in a custody or bond proceeding shall be 
separate and apart from an entry of appearance in any other proceeding 
before the Immigration Court. An attorney or representative may file an 
EOIR-28 indicating whether the entry of appearance is for custody or 
bond proceedings only, any other proceedings only, or for all 
proceedings. Such Notice of Entry of Appearance must be filed and 
served even if a separate Notice of

[[Page 55662]]

Entry of Appearance(s) has previously been filed with the DHS for 
appearance(s) before the DHS.
* * * * *

    Dated: July 29, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-21679 Filed 9-16-14; 8:45 am]
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