[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55662-55673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21686]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1240, and 1241

[EOIR Docket No. 164P; AG Order No. 3463-2014]
RIN 1125-AA62


List of Pro Bono Legal Service Providers for Aliens in 
Immigration Proceedings

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes to amend 8 CFR parts 1003, 1240, and 1241 
by changing the name of the ``List of Free Legal Services Providers'' 
to the ``List of Pro Bono Legal Service Providers.'' The rule also 
would enhance the eligibility requirements for organizations, private 
attorneys, and referral services to be included on the List of Pro Bono 
Legal Service Providers (List).

DATES: Electronic comments must be submitted and written comments must 
be postmarked on or before November 17, 2014. The electronic Federal 
Docket Management System at www.regulations.gov will accept electronic 
comments submitted prior to 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 1125-AA62 or EOIR docket number 164P on your 
correspondence. You may view an electronic version and provide comments 
via the Internet by using the www.regulations.gov comment form for this 
regulation. When submitting comments electronically, you must include 
RIN 1125-AA62 in the subject box. See Section I of the SUPPLEMENTARY 
INFORMATION section for more information.

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. Public Participation--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 personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying 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 ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying 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 be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personal identifying 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 section. 
Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. Comments that will provide the most assistance to the Department 
of Justice will reference a specific portion of the rule, explain the 
reason for any recommended change, and include data, information, or 
authority that support the recommended change.
    For access to the electronic docket to read background documents or 
comments received, go to www.regulations.gov. Submitted comments may 
also be inspected at the Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2600, Falls Church, Virginia 20530. To make an 
appointment, please contact EOIR at (703) 305-0470 (not a toll-free 
call).

II. Explanation of Proposed Changes

    Aliens who are placed in removal proceedings pursuant to section 
240 of the Immigration and Nationality Act (Act or INA), or who seek 
asylum under section 208 of the Act (whether or not in removal 
proceedings), must be provided with a list of persons who have 
indicated their availability to represent aliens on a pro bono basis. 
See INA 208(d)(4)(B) (relating to asylum proceedings), and INA 
239(a)(1)(E), (b)(2) (relating to removal proceedings). In order to 
meet this statutory obligation, the Executive Office for Immigration 
Review (EOIR) publishes the Free Legal Services Providers List 
(List).\1\ The regulations governing the List were promulgated on 
February 28, 1997, at 62 FR 9071, and are found at 8 CFR 1003.61-
1003.65. The List is organized by immigration court location; \2\ for 
each location, the List provides the names of private attorneys and 
non-profit organizations aliens in proceedings may contact for free 
legal services. At each location, aliens are given the portion of the 
List with the providers for that location. The complete List is posted 
on the EOIR Web site.\3\ See www.usdoj.gov/eoir/probono/states.htm.
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    \1\ EOIR, a component of the Department of Justice, includes the 
immigration judges and the Board of Immigration Appeals. The 
immigration judges, who are appointed by the Attorney General, 
conduct removal proceedings and other immigration proceedings, 
resolving questions such as whether an alien is inadmissible to or 
deportable from the United States, and whether he or she qualifies 
for relief from removal.
    \2\ The term ``immigration court location,'' as used in this 
proposed rule, refers both to the immigration courts and to 
facilities where hearings may be conducted, but where no EOIR 
personnel have a permanent duty station.
    \3\ In addition, the Department of Homeland Security (DHS) 
provides a modified version of EOIR's List to asylum applicants 
before that agency, and DHS provides EOIR's List to aliens in 
certain other instances as well. As explained in more detail below, 
this proposed rule does not limit DHS's ability to provide aliens 
with EOIR's List or with DHS's modified versions of the List.
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    The List is central to EOIR's efforts to improve the amount and 
quality of representation before its adjudicators, and it is an 
essential tool to inform aliens in proceedings before EOIR of available 
pro bono legal services. However, as explained further below,

[[Page 55663]]

concerns have been expressed to EOIR by government sources and the 
public about problems with the List, and EOIR believes it is important 
to improve the functioning of the List. Therefore, the Department of 
Justice (Department) is proposing to amend the regulations governing 
the List, as described further below.

A. ``Pro Bono Legal Service Providers''

    As the List is intended to provide aliens access to pro bono 
representation, this proposed rule replaces the term ``free legal 
service providers'' with ``pro bono legal service providers.'' 
Replacing the word ``free'' with the term ``pro bono'' reflects the 
relevant statutory language (see INA 208(d)(4)(B), 239(a)(1)(E), 
239(b)(2)), describes more accurately the nature of the services 
provided, and will improve the integrity of the List. Further, removing 
the word ``free'' will clarify that entities and private attorneys on 
the List are not necessarily available to work free of charge for every 
alien regardless of the alien's financial means or the type of legal 
work involved. Rather, use of the term ``pro bono'' indicates that such 
services are for the public good, e.g., to help ensure qualified 
representation for those indigent aliens who do not have sufficient 
means to hire a private attorney.

B. Definition of ``Pro Bono''

    This proposed rule also sets forth a definition of the term ``pro 
bono'' to ensure that entities or private attorneys that want to be 
included on the List understand the kind of services expected from them 
if they are included on the List. The proposed rule defines ``pro bono 
legal services'' at Sec.  1003.61(a)(2) as ``those uncompensated legal 
services performed for indigent aliens or the public good without any 
expectation of either direct or indirect remuneration, including 
referral fees (other than filing fees or photocopying and mailing 
expenses), although a representative may be regularly compensated by 
the firm, organization, or pro bono referral service with which he or 
she is associated.'' This definition not only reflects the spirit of 
pro bono representation, but is also consistent with the common law 
understanding of the terms pro bono and pro bono publico. See, e.g., 
Black's Law Dictionary (9th ed. 2009).
    Use of the term pro bono indicates that work performed should be 
for the good of the public from the outset and a commitment to continue 
such representation throughout the duration of the administrative 
proceeding before an immigration judge. It is inappropriate for legal 
service providers to subsequently count as ``pro bono'' those services 
provided to paying clients who fall delinquent in paying attorney fees. 
In addition, EOIR recognizes that some organizations charge reduced or 
nominal fees in an attempt to provide services to aliens who cannot 
afford private attorneys but have a modest ability to pay. However, 
services provided for a reduced or nominal fee do not constitute ``pro 
bono'' services under the proposed rule. Although services provided for 
reduced or nominal fees are not ``pro bono'' services, organizations 
that charge such fees to some of their clients are not prohibited from 
inclusion on the List. As set forth in Sec.  1003.62(a) and (b), such 
an organization can be included on the List if it provides a requisite 
amount of pro bono legal services and meets the other requirements for 
inclusion, even though it charges fees to some of its other clients.\4\
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    \4\ Under this proposed rule, an organization or attorney on the 
List must provide 50 hours of pro bono legal services per year in 
cases in front of each immigration court location on its 
application. See proposed Sec. Sec.  1003.62, 1003.63. This 
requirement is discussed further below.
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    As the foregoing definition reflects, this proposed rule also 
adopts reference to ``pro bono referral services'' in place of the 
current reference to ``bar associations.'' There is no need to 
specifically list bar associations since any pro bono programs offered 
by them would either be in the form of a pro bono referral service or 
an organization that is eligible to be included on the List under 
proposed Sec.  1003.62(a), (b), or (c). Adopting the term ``pro bono 
referral services'' also broadens eligibility for inclusion on the List 
to referral services that are not administered by a bar association.

C. Proposed Changes to Preserve the Integrity of the List

    EOIR has strongly supported various local efforts to provide pro 
bono legal services to aliens appearing before the immigration judges, 
the Board of Immigration Appeals (Board), and the Office of the Chief 
Administrative Hearing Officer (which adjudicates certain immigration-
related civil penalty actions). In April 2000, EOIR established a 
national pro bono program to improve the development and coordination 
of these services and, in March 2008, EOIR issued formal policy 
guidance to immigration judges and immigration court staff on 
facilitating pro bono legal services. See ``Office of Legal Access 
Programs,'' www.usdoj.gov/eoir/probono/probono.htm; ``Operating 
Policies and Procedures Memorandum 08-01: Guidelines for Facilitating 
Pro Bono Legal Services,'' Mar. 10, 2008, www.usdoj.gov/eoir/efoia/ocij/oppm08/08-01.pdf (Last visited July 15, 2014]).
    EOIR encourages organizations and private attorneys to publicize 
their willingness to provide pro bono legal services to aliens 
appearing before immigration judges by being included on the List.\5\ 
The EOIR Committee on Pro Bono, which was formed in response to 
Directive 22 of Attorney General Alberto R. Gonzales' ``Measures to 
Improve the Immigration Courts and the Board of Immigration Appeals,'' 
Aug. 9, 2006, http://www.justice.gov/ag/readingroom/ag-080906.pdf (Last 
visited July 15, 2014), reviewed issues and concerns regarding the need 
for additional safeguards for the List. In its recommendations to 
expand and improve EOIR's pro bono programs, the EOIR Committee on Pro 
Bono (Committee) recommended that EOIR publish new regulations to 
strengthen the requirements for placing organizations and private 
attorneys on the List. See ``EOIR to Expand and Improve Pro Bono 
Programs,'' Nov. 15, 2007, www.usdoj.gov/eoir/press/07/ProBonoEOIRExpandsImprove.pdf (Last visited July 15, 2014). 
Specifically, the Committee recommended that private attorneys not be 
included on the List unless they could demonstrate their inability to 
provide pro bono legal services through or in association with local 
pro bono organizations or referral services. The Committee also 
recommended that the List be monitored periodically to ensure that 
listed organizations and individuals were indeed providing free legal 
services.
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    \5\ For aliens before the Board, EOIR helps to provide pro bono 
representation in appropriate cases through the BIA Pro Bono 
Project, which is administered by EOIR's Office of Legal Access 
Programs. Based on criteria determined by partnering organizations, 
EOIR assists in identifying cases appropriate for pro bono 
representation. Partnering organizations then work to find pro bono 
representatives in those cases. Additional information is available 
at http://www.justice.gov/eoir/probono/probono.htm#BIAProBono.
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    Since the creation of the List, EOIR has increasingly received 
complaints from numerous government sources and the public that certain 
private attorneys may be using the List to advertise or solicit for 
paying clients, and do not provide legal representation to a 
significant number of aliens on a pro bono basis or for any particular 
amount of time. For instance, a private attorney who has declared his 
or her willingness to represent indigent aliens on a pro bono basis may 
provide pro bono

[[Page 55664]]

representation to only one alien and otherwise cease to provide pro 
bono representation. It is, unfortunately, common for aliens who 
contact private attorneys on the List to be informed that these 
attorneys are not available to accept any more pro bono cases, and are 
only available to represent the aliens for a fee. Though there may be 
different reasons why attorneys may find themselves unable to accept 
new pro bono cases at a particular time, there is reason for concern 
that at least some attorneys may not be using the List for its intended 
purpose and may be misleading EOIR, the public, and aliens as to their 
true willingness and availability to provide pro bono services.
    EOIR has not received similar complaints regarding organizations or 
pro bono referral services on the List. This may be because, unlike 
private attorneys, organizations and pro bono referral services are 
primarily non-profit operations and are formed specifically to assist 
indigent and low-income individuals. Thus, although there may be 
similar potential for abuse, there is less incentive for such entities 
to use the List improperly. Further, attorneys and accredited 
representatives who provide pro bono services on behalf of 
organizations or referral services are typically supervised, unlike 
some private attorneys on the List.
    Finally, the regulations do not currently require organizations or 
private attorneys who are included on the List to represent any minimum 
number of indigent aliens on a pro bono basis over a given period of 
time. Requiring ``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'' was considered in promulgating the 1997 
rule. 62 FR 9072 (Feb. 28, 1997). At that time, EOIR determined that it 
was not necessary to include such a requirement. Id. However, the rule 
also stated that ``this issue is subject to further review if necessary 
to eliminate any abuses.'' Id.
    The proposed rule seeks to prevent in five ways the potential for 
abuse by all organizations and private attorneys on the List, explained 
in greater detail below. First, the proposed rule requires that private 
attorneys on the List, and attorneys and accredited representatives 
providing pro bono legal services before EOIR on behalf of the 
organization on the List, not be subject to an order of disbarment 
under Sec.  1003.101(a)(1) or suspension under Sec.  1003.101(a)(2). 
Second, the proposed rule provides that attorneys must seek to provide 
pro bono legal services through or in association with an organization 
or pro bono referral service if possible. Third, it requires every 
organization or individual on the List to provide a minimum of 50 pro 
bono hours a year in each immigration court location where the provider 
intends to be included on the List. Fourth, this proposed rule allows 
for and encourages public participation in the application process of 
an organization, referral service, or private attorney seeking to be 
included on the List. Finally, once a provider's name is included on 
the List, the provider must declare under penalty of perjury every 
three years that the provider is qualified to remain on the List.
    The following is a description of the five ways the proposed rule 
seeks to limit the potential for abuse by the organizations and private 
attorneys on the List.
1. Professional Conduct Standards
    The new eligibility requirements aim to ensure that private 
attorneys on the List, and attorneys and accredited representatives who 
provide pro bono legal services for organizations on the List, satisfy 
EOIR's professional conduct standards.\6\
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    \6\ The standards described in this footnote relate to 
compliance with EOIR's professional conduct standards. In addition, 
to be eligible for inclusion on the List, or to provide pro bono 
services before EOIR on behalf of an organization on the List, an 
attorney must comply with state bar association standards. 
Specifically, EOIR's regulatory definition of ``attorney'' states 
that an attorney cannot be ``under any order suspending, enjoining, 
restraining, disbarring, or otherwise restricting him in the 
practice of law.'' Sec.  1001.1(f). This includes any such order 
issued by a state bar association. In an application to be included 
on the List, an attorney must declare, under penalty of perjury, 
``[t]hat he or she is not under any order suspending, enjoining, 
restraining, disbarring, or otherwise restricting him or her in the 
practice of law.'' Proposed Sec.  1003.63(d)(6). An organization 
must make such a declaration with respect to every attorney 
providing pro bono legal services before EOIR on the organization's 
behalf. Proposed Sec.  1003.63(b)(2)(ii).
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    The proposed rule requires that private attorneys on the List, as 
well as attorneys and accredited representatives who provide pro bono 
services before EOIR on behalf of an organization on the List, not be 
subject to an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2). See proposed Sec.  1003.62(a)(3) 
(pertaining to organizations recognized under Sec.  1292.2), (b)(4) 
(pertaining to organizations not recognized under Sec.  1292.2), (d)(1) 
(pertaining to attorneys). When applying to be included on the List, an 
attorney must submit a written declaration that he or she is not the 
subject of an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2). See proposed Sec.  
1003.63(d)(7). Similarly, an organization, whether or not recognized, 
must submit a written declaration that no attorney or accredited 
representative who will provide pro bono legal services on behalf of 
the organization before EOIR is the subject of such an order of 
disbarment or suspension.
    Each of the declarations to be made by private attorneys under 
proposed Sec.  1003.63(d), or organizations under proposed Sec.  
1003.63(b), must be made ``under penalty of perjury.'' Use of this term 
is consistent with language used in the declarations on Forms EOIR-28 
(Notice of Entry of Appearance as Attorney or Representative Before the 
Immigration Court) and EOIR-27 (Notice of Entry of Appearance as 
Attorney or Representative Before the Board of Immigration Appeals), 
which must be signed and filed each time an attorney or representative 
enters his or her appearance in a matter before the immigration judge 
or the Board. See Sec.  1003.17(a) (requiring the filing of Form EOIR-
28 with the immigration court); Sec.  1003.2(g)(1) (requiring the 
filing of Form EOIR-27 with the Board); Sec.  1003.3(a)(3) (same).
    The proposed rule contains no requirement pertaining to other 
disciplinary actions. Such actions include public or private censure 
under 1003.101(a)(3) and admonition under Sec.  1003.104(c). An 
attorney can be included on the List even if he or she was recently 
subject to such a disciplinary action, and an organization can be 
included on the List even if an attorney or accredited representative 
providing pro bono legal services on its behalf before EOIR was 
recently subject to such an action.
2. Ability To Provide Pro Bono Legal Services in Association With 
Organizations and Referral Services
    The new eligibility requirements for private attorneys further aim 
to ensure that only those attorneys who are genuinely interested in and 
capable of providing pro bono services are included on the List.
    Many immigration court locations are in areas with developed pro 
bono programs that are sufficiently capable of assessing the legal 
claims and financial resources (``intake'' and ``screening'') of large 
numbers of aliens in immigration proceedings and coordinating pro bono 
representation with local private attorneys. These programs often 
provide private attorneys with specialized legal training, ongoing 
mentoring, and other assistance in their pro bono cases as a 
recruitment incentive. Thus, where sufficient local organizations or 
pro

[[Page 55665]]

bono referral programs are available to identify aliens in need of pro 
bono legal services, as well as recruit and assist private attorneys 
interested in providing these services, private attorneys are able to 
provide pro bono services through or in association with such local 
organizations or referral programs. In such a situation, there is 
little to no need for private attorneys to be included by name on the 
List.
    However, EOIR recognizes that in some instances, especially for 
immigration court locations in rural areas or small cities, private 
attorneys may be the only available and willing sources of pro bono 
legal services. For instance, some areas may have no pro bono 
organizations or may have organizations that lack programs to recruit 
and support pro bono attorneys. In addition, some pro bono 
organizations offer a limited range of immigration services, and do not 
offer referral programs for all types of cases before the immigration 
court.
    The Department has designed the proposed rule to allow private 
attorneys in such circumstances to continue to be included on the List. 
Accordingly, this rule proposes to amend Sec.  1003.62(d) to state 
that, to be included on the List, an individual attorney must 
demonstrate that he or she cannot provide pro bono legal services 
through or in association with an organization or referral service 
because: (i) Such an organization or referral service is unavailable; 
or (ii) the range of services provided by the existing organization(s) 
or referral service(s) are insufficient to address the needs of the 
community. Under the ``Applications'' section at Sec.  1003.63(d)(3), 
an attorney is further required to submit a written declaration that 
describes the good-faith efforts he or she made to provide pro bono 
legal services through an organization or pro bono referral service at 
each immigration court location where the private attorney is willing 
to provide pro bono legal services.
3. Minimum Requirement of 50 Pro Bono Hours per Year
    This rule proposes a new requirement that, once on the List, an 
attorney or organization perform at least 50 hours of pro bono legal 
services annually at each immigration court location where the attorney 
or organization intends to be included on the List. See proposed Sec.  
1003.62(a)(1), (b)(2), (d)(2). This requirement aims to ensure that 
only those organizations and private attorneys genuinely interested in 
providing pro bono services are included on the List. This requirement 
applies to organizations as well as private attorneys. As noted above, 
some organizations charge reduced or nominal fees in an attempt to 
provide services to aliens who cannot afford private attorney rates but 
have a modest ability to pay. However, services provided for a fee--
even a nominal fee--are not pro bono services, and therefore do not 
count toward the 50-hour requirement. This requirement does not apply 
to pro bono referral services; there is no minimum annual amount of pro 
bono legal services that a referral service must provide.
    Only pro bono legal services provided in cases before the 
immigration court location identified in the attorney's or 
organization's application count toward the 50-hour requirement. See 
proposed Sec.  1003.63(a)(3), (b)(1), (d)(1). If an attorney or 
organization identifies more than one immigration court location, then 
the attorney or organization must provide at least 50 hours of pro bono 
legal services in cases before each location. For instance, a provider 
who seeks to be listed as providing pro bono services before the 
Arlington Immigration Court and the Baltimore Immigration Court must 
provide 50 hours of pro bono services before the Arlington Immigration 
Court and 50 hours of pro bono services before the Baltimore 
Immigration Court each year. This is intended to ensure, to the maximum 
extent possible, that attorneys and organizations listed as available 
to provide pro bono legal services at a particular immigration court 
location are actually able to provide pro bono services at that 
location.\7\ However, a provider is not required to provide 50 hours of 
in-court pro bono service per year. Rather, all time spent providing 
pro bono legal services in cases before a particular immigration court 
location, including out-of-court preparation time, counts toward the 
50-hour requirement.
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    \7\ Pro bono legal services provided before the Board do not 
count toward the 50-hour requirement. As noted in footnote 5, EOIR 
assists in providing pro bono legal services in appropriate 
instances through the BIA Pro Bono Project.
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    Due to the new requirement that private attorneys must first seek 
to provide pro bono services through an organization or referral 
service, the Department does not believe that this 50-hour requirement 
will overly burden an individual attorney's ability to provide pro bono 
services. The individual attorney might commit to provide any number of 
pro bono hours through an organization or referral service on the List. 
An individual attorney associated with an organization on the List 
would not be required to provide 50 hours per year. Rather, the 
organization as a whole would commit to providing at least 50 hours of 
pro bono representation per year before each immigration court location 
identified in the organization's application.
    This 50-hour annual minimum is intended to provide a clear measure 
of the amount of pro bono representation that is acceptable in order 
for an organization or private attorney to be qualified to be included 
on the List. A number of state bar associations and private law firms 
use 50 hours as the recommended annual minimum for pro bono work and 
this number is also found in the American Bar Association's (ABA) Model 
Rules of Professional Conduct.\8\ The Department believes this 
prevailing standard strikes the balance between private attorneys whose 
primary practice is the business of fee-generating clients but who are 
genuinely interested in providing pro bono services, and organizations 
that are primarily formed to assist indigent and low-income 
individuals. The proposed rule also provides that failure to provide 
the 50-hour annual minimum subjects attorneys and organizations to 
removal from the List under new Sec.  1003.65.
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    \8\ ABA Rule 6.1 (Voluntary Pro Bono Publico Service) states 
that ``[a] lawyer should aspire to render at least (50) hours of pro 
bono publico legal services per year.''
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    The Department also recognizes, however, that a particular minimum 
may be burdensome for some or result in a de facto maximum standard 
that undermines the purpose of the List. Accordingly, the Department is 
soliciting comments on whether this 50-hour annual minimum is an 
acceptable measure of how much pro bono representation an organization 
or private attorney should provide in order to remain on the List. In 
particular, the Department welcomes comments on the following 
questions:
    Question 1. Would a 50-hour annual minimum be too demanding for 
private attorneys who manage a fee-generating practice, but also want 
to engage in immigration-related pro bono work and cannot provide pro 
bono service through or in association with an organization or referral 
service?
    Question 2. Conversely, is a 50-hour annual minimum not enough for 
organizations that seek to be included on the List?
    Question 3. Should the standards for organizations and private 
attorneys differ from one another in any other way? For example, should 
the rule require that each attorney or accredited representative 
performing legal services on behalf of an organization perform a 
certain amount of pro bono work per year, as opposed to requiring that 
the

[[Page 55666]]

organization as a whole perform a certain amount of work?
    Question 4. Are there alternative standards that would be more 
appropriate measures of the level of pro bono representation that an 
organization or a private attorney should provide in order to be 
included on the List, e.g., the number of cases accepted or the types 
of cases accepted?
4. Continuing Certification
    This proposed rule also would require at Sec.  1003.64(b)(2) that, 
every three years from the date the application to be included on the 
List is approved, each provider must declare that the provider 
continues to be qualified to remain on the List under paragraphs (a), 
(b), (c), or (d) of Sec.  1003.62. As part of the declaration, the 
provider must include alien registration numbers of clients in whose 
cases the provider rendered pro bono legal services under EOIR's 
regulations, representing at least 50 hours of pro bono legal services 
each year since the provider's most recent such declaration, or since 
the provider was included on the List, whichever was more recent. This 
continuing certification puts a reasonable responsibility on providers 
to keep EOIR informed of their willingness to provide pro bono legal 
services and their qualifications to be included on the List. The 
current rule provides no means by which EOIR remains informed that 
providers continue to provide pro bono legal services once their names 
are included on the List. Unless EOIR is specifically notified that a 
provider is no longer providing pro bono legal services, it is 
difficult for EOIR to ascertain whether a provider should remain on the 
List. Under the proposed rule, however, EOIR will remove a provider 
from the List at the next quarterly update if the provider fails to 
comply with the continuing certification requirement.\9\
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    \9\ As described further in section II-G of this preamble, a 
provider can be removed from the List in other circumstances as 
well. Specifically, as provided in Sec.  1003.65, a provider may be 
removed if subject to automatic removal, if the provider submits a 
request for removal, if the provider fails to answer an EOIR inquiry 
in response to complaints, or if, following proceedings initiated by 
the EOIR Director, the EOIR Director determines that the provider is 
no longer qualified to remain on the List.
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    For providers whose applications to be included on the List are 
approved before the date of publication of the final rule, a new 
application must be filed in compliance with the new qualification and 
eligibility requirements set forth in this rule as follows: 
organizations and pro bono referral services, within one year of the 
date of publication of the final rule; attorneys, within six months of 
the date of publication of the final rule. See proposed Sec.  
1003.63(e). These time periods strike a balance between allowing both 
providers and EOIR sufficient time to phase in these new requirements 
and addressing the public's need for an updated list of available, 
local pro bono legal service providers. The time period for attorneys 
is shorter than for organizations and pro bono referral services 
because, as noted above, the complaints EOIR has received primarily 
relate to attorneys. While the List already comprises well over 100 
providers, the allotted time periods should be sufficient for these 
providers to reapply and be subject to the 15-day notice and comment 
period under Sec.  1003.63(f).
5. Public Participation
    Another means by which the proposed rule aims to improve the 
integrity of the List is by engaging the public in the application 
process under Sec.  1003.63(f). The proposed rule requires EOIR to 
publicly post for a 15 day period the names of applicants, whether 
organizations, pro bono referral services, or individuals, who meet the 
regulatory requirements to provide pro bono services to aliens in 
proceedings in order to allow the public an opportunity to send 
comments to EOIR and the applicant. The names of applicants will be 
posted on EOIR's Web site, and may also be posted at the immigration 
court location where the applicant intends to provide pro bono 
services. Under the proposed rule, any individual or organization may 
forward its comments or recommendations for approval or disapproval of 
the publicly available applications to the Director. The rule will 
require that such comments also be served on the applicant so that the 
applicant has an opportunity to respond.

D. Improper Use of the List To Solicit or Advertise for Paying Clients

    This proposed rule also states, at Sec.  1003.65(d)(1)(iii), that a 
provider shall be removed from the List for improperly using the List 
for the primary purpose of soliciting, or advertising to, potential 
paying clients since doing so is clearly contrary to the List's 
intended purpose. Current regulations do not explicitly impose a 
removal requirement for use of the List for these purposes. 
Unfortunately, EOIR has received numerous complaints that aliens who 
contact private attorneys on the List are commonly informed that the 
private attorneys are not available to accept any pro bono cases and 
are only available to represent the aliens for a fee. As noted above, 
though there may be different reasons why attorneys are not able to 
accept additional pro bono cases at a particular time, this gives rise 
to concerns that at least some private attorneys may be using the List 
as free, government-supported advertising for fee-generating services. 
This may be misleading to aliens who would not have otherwise contacted 
the private attorney and who may also mistakenly believe that private 
attorneys on the List are in some manner endorsed by the government. 
These issues are of particular concern as aliens in immigration 
proceedings are often unfamiliar with the legal system in the United 
States and may have limited English proficiency.
    Such practice not only degrades the integrity of the List, but may 
also violate Sec.  1003.102(f)(1),\10\ state bar rules or the ABA's 
Model Rules of Professional Conduct.\11\ Use of the List by a private 
attorney to induce aliens into contacting the attorney for pro bono 
legal services when these are not commonly provided may also raise 
questions about whether such conduct might amount to impermissible 
solicitation by the private attorney for fee-generating legal services. 
Improperly soliciting clients is grounds for discipline under Sec.  
1003.102(d) and is prohibited by various state bar rules, and the ABA's 
Model Rules. In order to safeguard the integrity of the List and 
promote aliens' interests in obtaining pro bono legal services, Sec.  
1003.65(d)(1)(iii) of the proposed rule states that a provider is 
subject to removal from the List for improperly using it primarily to 
advertise for or solicit clients for compensated legal services. 
Additionally, Sec.  1003.65(d)(5) states that removal from the list 
pursuant to Sec.  1003.65(d)(1)(iii) shall be without prejudice to the 
authority to discipline an attorney or representative under EOIR's 
rules and procedures for

[[Page 55667]]

professional conduct for practitioners listed in part 1003, subpart G.
---------------------------------------------------------------------------

    \10\ Under Sec.  1003.102(f), a practitioner is subject to 
disciplinary action by EOIR if he or she ``[k]nowingly or with 
reckless disregard makes a false or misleading communication about 
his or her qualifications or services. A communication is false or 
misleading if it: (1) Contains a material misrepresentation of fact 
or law, or omits a fact necessary to make the statement considered 
as a whole not materially misleading. . . .''
    \11\ Most, if not all, states have a rule similar to ABA Model 
Rule 7.1 (Communications Concerning A Lawyer's Services), which 
states that: ``[A] lawyer shall not make a false or misleading 
communication about the lawyer or the lawyer's services. A 
communication is false or misleading if it contains a material 
misrepresentation of fact or law, or omits a fact necessary to make 
the statement considered as a whole not materially misleading.''
---------------------------------------------------------------------------

E. Requesting Removal From the List

    The Department recognizes that circumstances may arise where an 
individual attorney or organization on the List may legitimately be 
unable to continue accepting additional pro bono cases for a certain 
period, such as a full case load or reaching the annual limitation on 
pro bono hours by an attorney practicing in a law firm. In that 
instance, the provider can request removal from the List as set forth 
in Sec.  1003.65(b)(1). Under Sec.  1003.65(b)(2), any provider granted 
removal from the List may thereafter seek reinstatement upon written 
notice and submission of a new eligibility declaration, as specified in 
section 1003.63(b), (c), or (d). However, reinstatement, like initial 
inclusion, is subject to the discretion of the Director. Also, 
reinstatement will not affect the continuing qualification requirement 
set forth in Sec.  1003.64(b)(2), which requires providers to submit a 
new declaration of eligibility every three years from the date of the 
original application's approval.

F. Available Services From the Pro Bono Provider

    The proposed rule also requires at Sec.  1003.63 that when applying 
to be included on the List, providers specify whether there are any 
limitations on the pro bono legal services they provide. Currently, 
Sec.  1003.63 only requires the application to indicate whether a 
provider will represent ``indigent aliens in immigration proceedings 
pro bono.'' Sec.  1003.63(d)(1)(ii). Yet, it is common practice for 
providers on the List to specify not only if they will represent aliens 
in specific types of proceedings (e.g., asylum, VAWA), but to state 
other limitations on the services they are willing to provide. For 
instance, some providers are unwilling to represent detained aliens. 
However, immigration court locations often use the same List for both 
detained and non-detained aliens, even though many providers on the 
List for a particular court are unwilling or unable to provide pro bono 
legal services to detained aliens. This practice can create confusion 
and unnecessary frustration for both detained aliens and the local 
court.
    Accordingly, this proposed rule codifies the already existing 
practice of specifying any limitations that may exist on a provider's 
willingness to provide pro bono legal services. For example, if a 
provider only provides pro bono representation for asylum seekers, or 
does not represent aliens in detention, this must be specified. 
Sections 1003.65(d)(1)(i) and 1003.66 of the rule also subject a 
provider to removal from the List for failing to notify EOIR of any 
changes to these limitations. This rule will assist both EOIR in 
assembling the List for each immigration court location, as well as 
aliens in directing their search.

G. Removal of Providers From the List

    The proposed rule transfers from the Chief Immigration Judge to the 
Director of EOIR responsibility for maintaining the List, exercising 
authority and discretion to approve or deny an application, and 
removing a provider from the List. The Director may delegate such 
authority to any office or official within EOIR. See proposed Sec.  
1003.61(a)(1)(b).
    Under the proposed rule, there are four ways a provider can be 
removed from the List.
    First, under Sec.  1003.65(a), an attorney can be automatically 
removed from the List if the Director determines that the attorney is 
the subject of an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2). Automatic removal applies only 
to private attorneys, and not to organizations or referral services.
    Second, under Sec.  1003.65(b), a provider can voluntarily request 
to be removed from the List.
    Third, under Sec.  1003.65(c), if EOIR receives complaints that a 
particular provider may no longer be providing pro bono services, EOIR 
can inquire, in writing, into the provider's pro bono practices. This 
will allow the provider to become aware of the receipt of complaints, 
and to provide an appropriate response. In appropriate cases, if in 
fact the provider is no longer in a position to provide pro bono 
services, the provider may request voluntary removal from the List. 
Where the provider fails to respond, EOIR may choose to remove the 
provider from the List.
    Fourth, paragraph (d) of 1003.65 provides formal procedures for 
removing a provider from the List in circumstances not covered by 
paragraphs (a), (b), or (c) of that section. Under Sec.  1003.65(d), 
the Director can initiate procedures to remove a provider from the List 
if the Director determines that a provider has: Failed to comply with 
Sec.  1003.66 (change in address or status), filed a false declaration 
in connection with an application filed pursuant to Sec.  1003.63, 
improperly used the List primarily to advertise or solicit clients for 
compensated legal services, or failed to comply with any other 
requirements under subpart E.
    If the Director decides to initiate procedures under Sec.  
1003.65(d), the Director must promptly inform the provider in writing 
of the Director's intention to remove the provider from the List. The 
provider then has 30 days to submit a written response establishing, by 
clear and convincing evidence, that the provider continues to meet the 
qualifications for inclusion on the List. The response must include a 
declaration under penalty of perjury as to the provider's continued 
compliance with the eligibility requirements, including individual 
examples of specific alien registration numbers of clients in whose 
cases the provider rendered pro bono legal services, representing at 
least 50 hours of service each year since the provider's most recent 
declaration under Sec.  1003.64(b)(2), or since the provider was 
included on the List, whichever was more recent. See proposed Sec.  
1003.65(d)(3). If the provider submits a response, the Director will 
consider the response before deciding whether to remove the provider 
from the List. See proposed Sec.  1003.65(d)(4).

H. Additional Revisions

    The proposed rule provides additional clarification by rearranging 
some of the sections and section headings. For instance, the proposed 
rule renames the heading of Sec.  1003.62 as ``Eligibility'' (presently 
titled ``Qualifications''), as the new heading better describes the 
requirements set forth in that section. Proposed new Sec.  1003.61(c) 
(``Qualification'') sets forth the criteria that make an entity or 
individual ``qualified'' to be included on the List, including that the 
entity or individual meet the eligibility requirements under Sec.  
1003.62.
    Moreover, the proposed rule specifies at Sec.  1003.64(a) that the 
approval and denial of applications to be included on the List are 
discretionary determinations by the EOIR Director. The proposed rule 
also eliminates the right to appeal to the Board, as currently provided 
in Sec.  1003.64 and Sec.  1003.65(a), the denial of an application to 
be included on the List, as well as a determination to remove a 
provider from the List. These changes are made for two reasons. First, 
the List is designed specifically to benefit aliens and not the 
providers listed. As application for placement on the List is 
completely voluntary and does not confer any rights or benefits to 
providers, there are no due process concerns with denying an 
application to be included on the List or removing a provider from the 
List. Second, applicants to be included on the List, as well as 
providers who are removed from

[[Page 55668]]

the List, may reapply through the normal application process, or may 
seek reinstatement in the limited circumstance where the Director 
previously granted removal at the request of the person or 
organization, as set forth in Sec.  1003.65(b)(2).
    Finally, with regard to the denial of an application under Sec.  
1003.64 or a decision to remove a provider from the List under Sec.  
1003.65, the proposed rule states that when serving documents on an 
applicant, the Director shall comply with the definition of ``service'' 
in Sec.  1003.13.

I. Proceedings Before the Department of Homeland Security

    As noted above, section 208(d)(4)(B) of the Act requires that 
asylum applicants be provided ``a list of persons . . . who have 
indicated their availability to represent aliens in asylum proceedings 
on a pro bono basis.'' For aliens in asylum proceedings before the 
Department of Homeland Security (DHS), U.S. Citizenship and Immigration 
Services (USCIS), USCIS currently complies with this requirement by 
providing a modified version of EOIR's List. Specifically, USCIS 
reorganizes EOIR's List around the geographic area served by each of 
USCIS's eight asylum offices; the providers in the area served by each 
office are listed under that office. Separately, U.S. Immigration and 
Customs Enforcement (ICE) with DHS provides EOIR's List to aliens 
subject to expedited removal as aggravated felons who are not lawful 
permanent residents, and in certain instances involving detained 
juveniles. See Sec. Sec.  236.3(g) (detained juveniles), 
238.1(b)(2)(iv) (expedited removal).
    The new requirements of this proposed rule are focused solely on 
pro bono providers who wish to be included on EOIR's List because they 
are providing pro bono legal services before the immigration courts; 
these requirements and limitations are not intended to account for pro 
bono representation of aliens before DHS.
    Thus, this proposed rule does not limit whether and how pro bono 
providers may represent aliens before DHS, nor does it limit how DHS 
notifies aliens of the availability of pro bono legal services. Under 
this proposed rule, DHS can continue to provide EOIR's List to aliens 
who are in proceedings before DHS, and can continue to modify the List 
as DHS deems appropriate. As explained above, under the proposed rule, 
only pro bono services in cases before EOIR, specifically at the 
immigration court location or locations identified in a provider's 
application, will count toward the 50-hour annual requirement. This is 
to ensure, as much as possible, that pro bono providers listed for a 
particular immigration court location are actually available to provide 
pro bono services there. But the 50-hour annual requirement under this 
proposed rule does not apply with respect to providing pro bono 
services before DHS. Thus, in modifying EOIR's List, if DHS wishes to 
add providers EOIR did not include--for example, those who practice 
exclusively or mostly before DHS--then DHS may do so. EOIR recognizes 
the importance of its List in assisting DHS to notify aliens of pro 
bono legal service providers. The Department believes that this 
proposed rule is appropriate in that it responds to concerns regarding 
pro bono representation before EOIR, while not limiting DHS's ability 
to modify EOIR's List as it chooses, or otherwise to inform aliens of 
pro bono legal service providers in the manner DHS deems best.

III. Regulatory Requirements

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. Some small entities, 
such as non-profit organizations or small law offices, will be affected 
by this rule. Organizations or private attorneys may be removed from 
the List of Pro Bono Legal Service Providers if they are no longer 
qualified to be on the List under this proposed rule. Likewise, those 
who wish to have their names included on this List will be affected as 
they will have to demonstrate their eligibility to have their names 
listed. However, application for placement on the List is completely 
voluntary and does not confer any rights or benefits on such 
organizations or law offices. Placement on the List does not constitute 
government endorsement of a particular entity or private attorney; nor 
is the List to be used for advertising or soliciting. Rather, the 
purpose of the List is to provide aliens notification that these 
entities or private attorneys are available to provide uncompensated 
legal services without any direct or indirect remuneration (other than 
filing fees or photocopying and mailing expenses).

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 also 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 (2 U.S.C. 1531-1535).

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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

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 potential economic, 
environmental, public health, and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Additionally, it calls on each agency to 
periodically review its existing regulations and determine whether any 
should be modified, streamlined, expanded, or repealed so as to make 
the agency's regulatory program more effective or less burdensome in 
achieving its regulatory objectives.
    This rule affects the function and purpose of the Pro Bono Service 
Provider List. The benefits of this proposed rule include addressing 
long-standing problems of abuse associated with the existing List, 
updating the term ``free'' with ``pro bono'' legal services to reflect 
the proper statutory language,

[[Page 55669]]

creating a minimum number of annual pro bono hours to ensure proper 
compliance with the spirit of the regulation, and creating greater 
agency flexibility to remove List participants who do not meet the 
minimum regulatory requirements. Further, the rule is intended to 
provide aliens with better information regarding the availability of 
pro bono representation before the immigration courts, thus benefitting 
aliens who appear in proceedings before the courts.
    Burdens to the public are applicable only to attorneys and 
organizations making a voluntary decision to seek to be included on the 
list; these include requirements to apply for inclusion on the List, 
maintain updated contact information, perform a minimum of 50 annual 
pro bono hours of service at each immigration court location where the 
attorney or organization intends to be included on the List, and file a 
declaration every three years of continuing eligibility to be on the 
List. The regulations provide for removal from the List of a provider 
who can no longer meet the requirements of inclusion on the List. The 
Department examined these burdens to the public and has determined that 
the benefits outweigh the burdens. The Department believes that this 
rule will have a minimal economic impact on List participants because 
it provides List participants with flexible means of complying with the 
rule's requirements. Further, it will not have a substantial economic 
impact on Department functions, as the Department is already 
maintaining and updating such a List quarterly. The Department believes 
this rule will have a positive economic impact for aliens in 
proceedings before EOIR who need legal services, as the rule is 
intended to preserve the integrity of the List and ensure that 
providers on the List are actually available to provide pro bono legal 
services.

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

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.

Paperwork Reduction Act

    The Department of Justice, Executive Office for Immigration Review 
(EOIR), is submitting the following information collection request to 
the Office of Management and Budget (OMB) for review and clearance in 
accordance with review procedures of the Paperwork Reduction Act of 
1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing 
regulations, 5 CFR part 1320. The information collection is published 
to obtain comments from the public and affected agencies. Written 
comments and suggestions are encouraged and will be accepted for 60 
days. If you have comments on the estimated public burden, associated 
response time, or suggestions, please contact EOIR as noted above.
    Comments that will provide the most assistance will evaluate: (1) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility; (2) whether the proposed 
collection of information enhances the quality, utility, and clarity of 
the information to be collected; (3) the accuracy of the agency's 
estimate of the burden of the proposed collection of information, 
including the validity of the methodology and assumptions used; and (4) 
whether the burden of the collection of information on those who are to 
respond can be minimized 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 information.
    There is currently no specific form or information collection 
instrument associated with this request.\12\ Rather, this rule 
implements new eligibility and application requirements in order for an 
organization, pro bono referral service, or private attorney to be 
included on the List of Free Legal Services Providers (to be renamed, 
through this rule, the ``List of Pro Bono Legal Service Providers''). 
Organizations and private attorneys that file an application (for which 
no specific form is currently required) with EOIR to be included on the 
List must demonstrate that they provide, or plan to provide, a minimum 
of 50 hours per year of pro bono legal services at each immigration 
court location where they intend to be included on the List. Entities 
and individuals must indicate ``their availability to represent aliens 
in asylum proceedings on a pro bono basis'' (see INA 208(d)(4)(B)) and 
``their availability to represent pro bono aliens in proceedings under 
section 240'' (see INA 239(b)(2)). They must also indicate whether 
there are any limitations on the services they plan to provide and in 
which immigration court locations they plan to provide such services. 
Private attorneys must demonstrate that they cannot otherwise provide 
such services through an organization or pro bono referral service. 
Finally, all providers must file a declaration every three years that 
they remain eligible to be on the List.
---------------------------------------------------------------------------

    \12\ The Department contemplates implementing an electronic/
Internet-based system in the future that may facilitate the 
collection of information.
---------------------------------------------------------------------------

    As explained in this proposed rule, these additional requirements 
will enhance the integrity of the List by ensuring that only those who 
genuinely intend to provide pro bono services are included on the List. 
These requirements will benefit aliens in need of pro bono legal 
services and will also prevent the use of the List primarily for 
improper solicitation and advertisement with respect to potential 
clients for paid legal services. It is not mandatory for organizations, 
pro bono referral services, or private attorneys to be included on the 
List in order to represent aliens on a pro bono basis before EOIR. 
Placement on the List is completely voluntary and does not confer any 
rights or benefits on entities or individuals who are included on the 
List. Placement on the List in no way constitutes government 
endorsement of a particular entity or private attorney, nor is the List 
to be used for advertising or soliciting. Rather, the purpose of the 
List is to provide aliens notification that these entities or private 
attorneys are available to provide legal services without any direct or 
indirect remuneration (other than filing fees or photocopying and 
mailing expenses).
    EOIR currently uses appropriate information technology to reduce 
burden and improve data quality, agency efficiency, and responsiveness 
to the public. Under this proposed rule, EOIR would continue to do so 
to the maximum extent practicable. EOIR will collect the information 
for any person or entity seeking to be included on EOIR's List of Free 
Legal Services Providers (to be renamed the ``List of Pro Bono Legal 
Service Providers''). Under the current regulation, it is estimated 
that it takes a total of 17 hours annually to provide the required 
information (50 applicants per year at 20 minutes per application).

[[Page 55670]]

Under the proposed rule, it is estimated that 129 applicants will file 
applications each year for the first two years (phase-in period) and 
take an average of 30 minutes for each application, resulting in an 
estimated total of 65 hours each year. After the first two years, it is 
estimated that there will be 93 applicants per year, expending an 
average of 30 minutes for each application, resulting in an estimated 
total of 47 hours each year. This would be an increase from the current 
estimated annual hours by 48 hours annually for the two-year phase-in 
period and 30 hours annually for the succeeding years.

List of Subjects

8 CFR Part 1003

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

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

8 CFR Part 1241

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, for the reasons stated in the preamble, the Attorney 
General proposes amending parts 1003, 1240, and 1241 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.


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

0
2. Amend Sec.  1003.1 by removing and reserving paragraph (b)(11).
0
3. Revise the heading for subpart E to read as follows:

Subpart E--List of Pro Bono Legal Service Providers

0
4. Revise Sec.  1003.61 to read as follows:


Sec.  1003.61  General provisions.

    (a) Definitions.
    (1) Director. Director means the Director of the Executive Office 
for Immigration Review (EOIR), pursuant to 8 CFR 1001.1(o), and shall 
also include any office or official within EOIR to whom the Director 
delegates authority with respect to subpart E of this part.
    (2) Pro bono legal services. Pro bono legal services are those 
uncompensated legal services performed for indigent aliens or the 
public good without any expectation of either direct or indirect 
remuneration, including referral fees (other than filing fees or 
photocopying and mailing expenses), although a representative may be 
regularly compensated by the firm, organization, or pro bono referral 
service with which he or she is associated.
    (3) Organization. A non-profit religious, charitable, social 
service, or similar group established in the United States.
    (4) Pro bono referral service. A referral service, offered by a 
non-profit group, association, or similar organization established in 
the United States that assists persons in locating pro bono 
representation by making case referrals to attorneys or organizations 
that are available to provide pro bono representation.
    (5) Provider. Any organization, pro bono referral service, or 
attorney whose name is included on the List of Pro Bono Legal Service 
Providers.
    (b) Authority. The Director shall maintain a list, known as the 
List of Pro Bono Legal Service Providers (List), of organizations, pro 
bono referral services, and attorneys qualified under this subpart to 
provide pro bono legal services in immigration proceedings. The List, 
which shall be updated not less than quarterly, shall be provided to 
aliens in removal and other proceedings before an immigration court.
    (c) Qualification. An organization, pro bono referral service, or 
attorney qualifies to be included on the List if the eligibility 
requirements under Sec.  1003.62 and the application procedures under 
Sec.  1003.63 are met.
    (d) Organizations. Approval of an organization's application to be 
included on the List under this subpart is not equivalent to 
recognition under Sec.  1292.2 of this chapter. Recognition under Sec.  
1292.2 of this chapter does not constitute a successful application for 
purposes of the List.
0
5. Revise Sec.  1003.62 to read as follows:


Sec.  1003.62  Eligibility.

    (a) Organizations recognized under Sec.  1292.2. An organization 
that is recognized under Sec.  1292.2 of this chapter is eligible to 
apply to have its name included on the List if:
    (1) The organization will provide a minimum of 50 hours per year of 
pro bono legal services to aliens at each immigration court location 
where the organization intends to be included on the List, in cases 
where an attorney or representative of the organization files a Form 
EOIR-28 Notice of Entry of Appearance as Attorney or Representative 
before the Immigration Court (EOIR-28 Notice of Entry of Appearance);
    (2) The organization has on its staff at least one attorney, as 
defined in Sec.  1292.1(a)(1) of this chapter, or at least one 
accredited representative, as defined in Sec.  1292.1(a)(4) of this 
chapter; and
    (3) No attorney or accredited representative who will provide pro 
bono legal services on the organization's behalf before EOIR is the 
subject of an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2).
    (b) Organizations not recognized under Sec.  1292.2. An 
organization that is not recognized under Sec.  1292.2 of this chapter 
is eligible to apply to have its name included on the List if:
    (1) The organization is established in the United States;
    (2) The organization will provide a minimum of 50 hours per year of 
pro bono legal services to aliens at each immigration court location 
where the organization intends to be included on the List, in cases 
where an attorney of the organization files a Form EOIR-28 Notice of 
Entry of Appearance;
    (3) The organization has on its staff at least one attorney, as 
defined in Sec.  1292.1(a)(1) of this chapter; and
    (4) No attorney who will provide pro bono legal services on the 
organization's behalf before EOIR is the subject of an order of 
disbarment under Sec.  1003.101(a)(1) or suspension under Sec.  
1003.101(a)(2).
    (c) Pro bono referral services. A referral service is eligible to 
apply to have its name included on the List at each immigration court 
location where the referral service either refers or plans to refer 
cases to attorneys or organizations that will provide pro bono legal 
services to aliens in proceedings before an immigration judge.
    (d) Attorneys. An attorney, as defined in Sec.  1292.1(a)(1) of 
this chapter, is eligible to apply to have his or her name included on 
the List if the attorney:

[[Page 55671]]

    (1) Is not the subject of an order of disbarment under Sec.  
1003.101(a)(1) or suspension under Sec.  1003.101(a)(2);
    (2) Will provide a minimum of 50 hours per year of pro bono legal 
services to aliens at each immigration court location where the 
attorney intends to be included on the List, in cases where he or she 
files a Form EOIR-28 Notice of Entry of Appearance; and
    (3) Cannot provide pro bono legal services through or in 
association with an organization or pro bono referral service described 
in paragraph (a), (b), or (c) of this section because:
    (i) Such an organization or referral service is unavailable; or
    (ii) The range of services provided by an available organization(s) 
or referral service(s) are insufficient to address the needs of the 
community.
0
6. Revise Sec.  1003.63 to read as follows:


Sec.  1003.63  Applications.

    (a) Generally. A form is not required in order to apply to be 
included on the List. To be included on the List, any organization, pro 
bono referral service, or attorney that is eligible under Sec.  1003.62 
to apply to be included on the List must file an application with the 
Director. Applications must be submitted in writing and received by the 
Director at least 60 days in advance of the quarterly update in order 
to be considered. The application must:
    (1) Establish by clear and convincing evidence that the applicant 
qualifies to be on the List pursuant to Sec.  1003.61(c);
    (2) Specify how the organization, pro bono referral service, or 
attorney wants its name to be set forth on the List;
    (3) Identify each immigration court location where the 
organization, pro bono referral service, or attorney provides, or plans 
to provide, pro bono legal services;
    (4) Include on the envelope the notation ``Application for List of 
Pro Bono Legal Service Providers''; and
    (5) Include proof of service, as defined in Sec.  1003.13, on the 
court administrator for each immigration court location where the 
organization, pro bono referral service, or attorney will provide pro 
bono legal services.
    (b) Organizations. An organization, whether recognized or not under 
Sec.  1292.2, must submit with its application a declaration signed by 
an authorized officer of the organization that states under penalty of 
perjury:
    (1) That it will provide annually at least 50 hours of pro bono 
legal services to aliens in removal or other proceedings before each 
immigration court location identified in its application;
    (2) That every attorney who will provide pro bono legal services 
before EOIR on behalf of the organization:
    (i) 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
    (ii) is not under any order suspending, enjoining, restraining, 
disbarring, or otherwise restricting him or her in the practice of law;
    (3) That no attorney or accredited representative who will provide 
pro bono legal services before EOIR on behalf of the organization is 
the subject of an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2); and,
    (4) Any specific limitations it has in providing pro bono legal 
services (e.g., not available to assist detained aliens or aliens with 
criminal convictions, or available for asylum cases only).
    (c) Pro bono referral services. A pro bono referral service must 
submit with its application a declaration signed by an authorized 
officer of the referral service that states under penalty of perjury:
    (1) That it will offer its referral services to aliens in removal 
or other proceedings before each immigration court location identified 
in its application; and,
    (2) Any specific limitations it has in providing its pro bono 
referral services (e.g., not available to assist detained aliens or 
aliens with criminal convictions, or available only for asylum cases 
only).
    (d) Attorneys. An attorney must submit with his or her application 
a declaration that states under penalty of perjury:
    (1) That he or she will provide annually at least 50 hours of pro 
bono legal services to aliens in removal or other proceedings before 
each immigration court location identified in his or her application;
    (2) Any specific limitations the attorney has in providing pro bono 
legal services (e.g., not available to assist detained aliens or aliens 
with criminal convictions, or available for asylum cases only);
    (3) A description of the good-faith efforts he or she made to 
provide pro bono legal services through an organization or pro bono 
referral service described in paragraph (a), (b), or (c) of Sec.  
1003.62 to aliens appearing before each immigration court location 
listed in the application;
    (4) An explanation that any such organization or referral service 
is unavailable or that the range of services provided by available 
organization(s) or referral service(s) are insufficient to address the 
needs of the community;
    (5) The bars of the highest courts of the states, possessions, 
territories, or commonwealths of the United States, or the District of 
Columbia, in which he or she is eligible to practice law, and that he 
or she is a member in good standing of each, including the attorney's 
bar number, if any;
    (6) That he or she is not under any order suspending, enjoining, 
restraining, disbarring, or otherwise restricting him or her in the 
practice of law; and
    (7) That he or she is not the subject of an order of disbarment 
under Sec.  1003.101(a)(1) or suspension under Sec.  1003.101(a)(2).
    (e) Applications approved before [insert effective date of final 
rule]. Providers whose applications to be included on the List were 
approved before [effective date of final rule to be inserted] must file 
an application under this section as follows: Organizations and pro 
bono referral services, within one year of [effective date of final 
rule to be inserted]; attorneys, within six months of [effective date 
of final rule to be inserted]. The names of providers who do not file 
an application as required by this paragraph shall be removed from the 
List following expiration of the application time period, the removal 
of which will be reflected no later than in the next quarterly update.
    (f) Notice and comments. (1) Public notice and comment. The names 
of the applicants, whether organizations, pro bono referral services, 
or individuals, meeting the regulatory requirements to be included on 
the List shall be publicly posted for 15 days after receipt of the 
applications by the Director, and upon request a date stamped copy of 
each application shall be made available for review. Any individual may 
forward to the Director comments or a recommendation for approval or 
disapproval of an application within 15 days from the last date the 
name of the applicant is publicly posted. The commenting party shall 
also include proof of service of a copy of any such comment or 
recommendation on the subject organization, pro bono referral service, 
or individual, in accordance with the definition of ``service'' 
described in Sec.  1003.13.
    (2) Response. The applicant has 15 days to respond from the date of 
service of the comment. All responses must be filed with the Director 
and include proof of service of a copy of such response on the 
commenting party, in accordance with the definition of ``service'' 
described in Sec.  1003.13.

[[Page 55672]]

0
7. Revise Sec.  1003.64 to read as follows:


Sec.  1003.64  Approval and denial of applications.

    (a) Authority. The Director in his discretion shall have the 
authority to approve or deny an application to be included on the List 
of Pro Bono Legal Service Providers. The Director may request 
additional information from the applicant to determine whether the 
applicant qualifies to be included on the List.
    (b) Decision. The applicant shall be notified of the decision in 
writing. The written notice shall be served in accordance with the 
definition of ``service'' described in Sec.  1003.13. The written 
notice shall be served on the applicant at the address provided on the 
application unless the applicant subsequently provides a change of 
address pursuant to Sec.  1003.66.
    (1) Denials. If the application is denied, the applicant shall be 
given a written explanation of the grounds for such denial, and the 
decision shall be final. Such denial shall be without prejudice to file 
another application at any time after the next quarterly publication of 
the List.
    (2) Approval and continuing qualification. If the application is 
approved, the applicant's name will be included on the List at the next 
quarterly update. Every three years from the date of approval, a 
provider must file with the Director a declaration, under penalty of 
perjury, stating that the provider remains qualified to be included on 
the List under paragraphs (a), (b), (c), or (d) of Sec.  1003.62. The 
declaration must include alien registration numbers of clients in whose 
cases the provider rendered pro bono legal services under Sec. Sec.  
1003.62(a)(1), (b)(2), or (d)(2), representing at least 50 hours of pro 
bono legal services each year since the provider's most recent such 
declaration, or since the provider was included on the List, whichever 
was more recent. If a provider fails to timely file the declaration or 
declares that it is no longer qualified to be included on the List, the 
provider's name will be removed from the List at the next quarterly 
update. Failure to file a declaration within the applicable time period 
does not prohibit the filing of a new application to be included on the 
List.
0
8. Revise Sec.  1003.65 to read as follows:


Sec.  1003.65  Removal of a provider from the List.

    (a) Automatic removal. If the Director determines that an attorney 
on the List is the subject of a final order of disbarment under Sec.  
1003.101(a)(1), or an order of suspension under Sec.  1003.101(a)(2), 
then the Director shall:
    (1) Remove the name of the attorney from the List no later than at 
the next quarterly update; and,
    (2) Notify the attorney of such removal in writing, at the last 
known address given by the provider.
    (b) Requests for removal.
    (1) Any provider may, at any time, submit a written request to have 
the provider's name removed from the List. The written request may 
include an explanation for the voluntary removal. Upon such written 
request, the name of the provider shall be removed from the List, and 
such removal will be reflected no later than in the next quarterly 
update.
    (2) Any provider removed from the List at the provider's request 
may seek reinstatement to the List upon written notice to the Director. 
Any request for reinstatement must include a new declaration of 
eligibility, as set forth under Sec.  1003.63(b), (c) or (d). 
Reinstatement to the List is at the sole discretion of the Director. 
Upon the Director's approval of reinstatement, the provider's name 
shall be included on the List no later than in the next quarterly 
update. Reinstatement to the List does not affect the requirement under 
Sec.  1003.64(b)(2) that a provider submit a new declaration of 
eligibility every three years from the date of the approval of the 
original application to be included on the List.
    (c) EOIR inquiry in response to complaints. If EOIR receives 
complaints that a particular provider on the List may no longer be 
accepting new pro bono clients, the Director may send a written inquiry 
to a provider noting that EOIR has received complaints with regard to 
the provider's acceptance of pro bono clients and allowing an 
opportunity for the provider to state whether the provider is 
continuing to comply with the regulations in this subpart or, if 
appropriate, whether the provider wishes to request voluntary removal 
from the List as provided in paragraph (b). The Director may remove a 
provider from the List for failure to respond to a written inquiry 
issued under this paragraph within 30 days or such additional time 
period stated by the Director in the written inquiry.
    (d) Procedures for removing providers from the List. The following 
provisions apply in cases not covered by paragraphs (a), (b) or (c).
    (1) Grounds. A provider shall be removed from the List if it, he, 
or she:
    (i) Fails to comply with Sec.  1003.66;
    (ii) Has filed a false declaration in connection with an 
application filed pursuant to Sec.  1003.63;
    (iii) Improperly uses the List primarily to advertise or solicit 
clients for compensated legal services; or,
    (iv) Fails to comply with any and all other requirements of this 
subpart.
    (2) Notice. If the Director determines that a provider falls within 
one or more of the enumerated grounds under paragraph (d)(1) of this 
section, the Director shall promptly notify the provider in writing, at 
the address last provided to the Director by the provider, of the 
Director's intention to remove the name of the provider from the List.
    (3) Response. The provider may submit a written answer within 30 
days from the date the notice is served, as described in Sec.  1003.13. 
The provider must establish by clear and convincing evidence that the 
provider continues to meet the qualifications for inclusion on the 
List, by declaration under penalty of perjury as to the provider's 
continued compliance with eligibility requirements under this 
subchapter, which must include alien registration numbers of clients in 
whose cases the provider rendered pro bono legal services under Sec.  
1003.62(a)(1), (b)(2), or (d)(2), representing at least 50 hours of pro 
bono services each year since the provider's most recent declaration 
under Sec.  1003.64(b)(2), or since the provider was included on the 
List, whichever was more recent.
    (4) Decision. If, after consideration of any response submitted by 
the provider, the Director determines that the provider is no longer 
qualified to remain on the List, the Director shall:
    (i) Remove the name of the provider from the List no later than in 
the next quarterly update; and
    (ii) Notify the provider of such removal in writing, at the address 
last provided to the Director by the provider.
    (5) Disciplinary Action. Removal from the List pursuant to Sec.  
1003.65(a), (b), (c) or (d) shall be without prejudice to the authority 
to discipline a practitioner under EOIR's rules and procedures for 
professional conduct for practitioners listed in 8 CFR part 1003, 
subpart G.
0
9. Add Sec.  1003.66, to read as follows:


Sec.  1003.66  Changes in address or status.

    All entities or persons with a pending application under this 
subpart, and all providers on the List, are under a continuing 
obligation to notify the Director, in writing or by whatever electronic 
notification process approved by the Director, within ten business 
days, of any:
    (a) Change of address;
    (b) Change of telephone number;
    (c) Change in eligibility under Sec.  1003.62;

[[Page 55673]]

    (d) Change regarding specific limitations to providing pro bono 
legal services under Sec.  1003.63;
    (e) Receipt of an order of disbarment under Sec.  1003.101(a)(1) or 
suspension under Sec.  1003.101(a)(2) by the provider (if an attorney), 
or by an attorney or representative providing pro bono services before 
EOIR on behalf of the provider; or
    (f) Change in professional status, including bar membership or any 
order suspending, enjoining, restraining, disbarring, or otherwise 
restricting the provider (if an attorney), or an attorney or 
representative providing pro bono services before EOIR on behalf of the 
provider, in the practice of law.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
10. The authority citation for part 1240 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 
2681).

0
11. In Sec.  1240.10, revise paragraphs (a)(2) and (a)(3), to read as 
follows:


Sec.  1240.10  Hearing.

    (a) * * *
    (2) Advise the respondent of the availability of pro bono legal 
services for the immigration court location at which the hearing will 
take place, and ascertain that the respondent has received a list of 
such pro bono legal service providers.
    (3) Ascertain that the respondent has received a copy of appeal 
rights.
* * * * *


Sec.  1240.32  [Amended]

0
12. Amend Sec.  1240.32 in paragraph (a) by removing the words 
``Government, and of the availability of free legal services programs 
qualified under 8 CFR part 1003 and organizations recognized pursuant 
to Sec.  1292.2 of this chapter located in the district where his or 
her exclusion hearing is to be held; and shall ascertain that the 
applicant has received a list of such programs'' and adding, in their 
place, the words ``Government; advise him or her of the availability of 
pro bono legal services for the immigration court location at which the 
hearing will take place, and ascertain that he or she has received a 
list of such pro bono legal service providers''.


Sec.  1240.48  [Amended]

0
13. Amend Sec.  1240.48 in paragraph (a) by removing the words ``free 
legal services programs qualified under 8 CFR part 1003 and 
organizations recognized pursuant to Sec.  1292.2 of this chapter, 
located in the district where the deportation hearing is being held; 
ascertain that the respondent has received a list of such programs'' 
and adding, in their place, the words ``pro bono legal services for the 
immigration court location at which the hearing will take place; 
ascertain that the respondent has received a list of such pro bono 
legal service providers''.

PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

0
14. The authority citation for part 1241 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4013(c)(4).


Sec.  1241.14  [Amended]

0
15. Amend Sec.  1241.14 in paragraph (g)(3)(i) by removing the words 
``a list of free legal service providers,'' and adding, in their place, 
the words ``the List of Pro Bono Legal Service Providers for the 
immigration court at which the hearing is being held''.

    Dated: August 4, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-21686 Filed 9-16-14; 8:45 am]
BILLING CODE 4410-30-P