[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92346-92373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29726]
[[Page 92345]]
Vol. 81
Monday,
No. 243
December 19, 2016
Part VII
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1001, 1003, 1103, et al.
Recognition of Organizations and Accreditation of Non-Attorney
Representatives; Final Rule
Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 /
Rules and Regulations
[[Page 92346]]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1003, 1103, 1212, and 1292
[EOIR Docket No. 176; A.G. Order No. 3783-2016]
RIN 1125-AA72
Recognition of Organizations and Accreditation of Non-Attorney
Representatives
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the regulations governing the requirements
and procedures for authorizing representatives of non-profit religious,
charitable, social service, or similar organizations to represent
persons in proceedings before the Executive Office for Immigration
Review (EOIR) and the Department of Homeland Security (DHS). The rule
also amends the regulations concerning EOIR's disciplinary procedures.
DATES: This rule is effective on January 18, 2017.
FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls
Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
II. Regulatory Background
III. Comments and Responses
A. Transfer of R&A Program From the Board to OLAP
B. Recognition and Accreditation
C. Administrative Termination of Recognition and Accreditation
D. Sanctioning Recognized Organizations and Accredited
Representatives
E. Filings and Communications
F. Request for Reconsideration and Administrative Review
G. Recognition and Accreditation for Practice Before DHS
IV. Other Revisions
V. Notice and Comment
VI. Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866 and Executive Order 13563 (Regulatory
Planning and Review)
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
G. Paperwork Reduction Act
I. Public Participation
On October 1, 2015, the Department published in the Federal
Register a rule proposing to amend the regulations governing the
requirements and procedures for authorizing representatives of non-
profit religious, charitable, social service, or similar organizations
to represent persons in proceedings before the Executive Office for
Immigration Review (EOIR) and the Department of Homeland Security
(DHS). 80 FR 59514 (Oct. 1, 2015). The rule also proposed amendments to
the regulations concerning EOIR's disciplinary procedures. Id. The
Department received 63 comments from various sources, including non-
profit organizations, bar associations, government agencies, legal
clinics, attorneys, and law students. Both in response to these
comments and as a result of further consideration, the Department has
decided to revise the proposed rule as discussed below. Except for
those revisions, the proposed rule is adopted without change.
II. Regulatory Background
The rule amends 8 CFR part 1292 by removing Sec. 1292.2, revising
Sec. Sec. 1292.1, 1292.3, and 1292.6, and adding Sec. Sec. 1292.11
through 1292.19. It amends 8 CFR 1001.1 and 8 CFR part 1003 at
Sec. Sec. 1003.0, 1003.1, and 1003.101 through 1003.108, and it adds
Sec. Sec. 1003.110 and 1003.111. The rule also amends 8 CFR part 1103
at Sec. 1103.3 and 8 CFR part 1212 at Sec. 1212.6. The rule transfers
the administration of the Recognition and Accreditation (R&A) program
within EOIR from the Board of Immigration Appeals (Board) to the Office
of Legal Access Programs (OLAP) (8 CFR 1003.0); amends the
qualifications for recognition of organizations and accreditation of
their representatives (8 CFR 1292.11 and 1292.12); institutes
administrative procedures to enhance the management of the R&A roster
(8 CFR 1292.13 through 1292.19); and updates the disciplinary process
to make recognized organizations, in addition to accredited
representatives, attorneys, and other practitioners, subject to
sanctions for conduct that contravenes the public interest (8 CFR
1003.101 et seq.).
III. Comments and Responses
As noted above, the Department received sixty-three comments in
response to the proposed rule. Twenty-nine comments were from
currently-recognized non-profit organizations and other non-profit
organizations. Three comments were from bar associations, 11 comments
were from private individuals, 19 comments were anonymously submitted,
and 1 comment came from a government entity.
In response to the comments, the Department changed a number of
provisions. First, the final rule makes a number of changes to the
requirements for recognition. The final rule retains the requirement
that organizations must have an accredited representative to be
recognized or renewed if the organization is seeking recognition for
the first time or is a currently recognized organization without an
accredited representative on the effective date of the rule. However,
once an organization is recognized, the organization will not have its
recognition administratively terminated if it no longer has an
accredited representative. Such organizations will be placed on
inactive status. The final rule details the rules and procedures for
inactive status. (Section III.B.1.a.) The final rule removes the
substantial amount standard for recognition and the associated waiver
provision set forth in the proposed rule. (Section III.B.1.d.) Instead,
the focus in the recognition process is placed on whether organizations
are non-profit, federally tax-exempt religious, charitable, social
service, or similar organizations and whether they are providing
immigration legal services primarily to low-income and indigent clients
in the United States. The final rule provides that these requirements
will be considered together. (Section III.B.1.e.)
Second, the final rule makes no changes to the character and
fitness provision for accreditation. Therefore, immigration status
remains a factor in that determination. However, further clarification
and guidance regarding why and how immigration status may be used as a
factor is provided in the supplementary information. (Section
III.B.2.a.)
Third, as mentioned above, the final rule unlinks recognition and
accreditation, which allows the validity period for recognition to be
increased to six years and to run independent of the three-year period
of accreditation for an organization's representatives. Accordingly,
organizations and their representatives will seek renewal of
recognition and accreditation separately at the conclusion of their
respective recognition and accreditation cycles. (Section III.B.5.)
Fourth, the final rule amends the reporting requirement in the
proposed rule. The final rule renames the annual report as the ``annual
summary of immigration legal services provided'' to avoid confusion
with other annual
[[Page 92347]]
reports that organizations may prepare. More significantly, the
information required to be submitted has shifted to focus on the legal
services provided by the organization as a whole, rather than by its
accredited representatives individually. (Section III.B.8.)
Fifth and finally, the final rule includes the following additional
changes: Removes the requirement of renewal for all other organizations
recognized at the effective date of the final rule if they seek
extension of recognition or accreditation of a new representative
(Section III.B.6); adds provisions that give OLAP the ability to permit
electronic communications and filings among OLAP, prospective and
current organizations, DHS, the EOIR disciplinary counsel, and the
anti-fraud officer (Section III.E.); and adds provisions that enable
organizations to request reconsideration of OLAP determinations that
disapprove requests for recognition or accreditation or that
administratively terminate recognition or accreditation and that permit
organizations to seek administrative review of denied reconsideration
requests before the Director (Section III.F).
Below, the Department summarizes in greater detail the comments
received and explains the changes, if any, that the Department has made
in response. Note that because some comments overlap and commenters
raised multiple subjects, the comments are generally addressed by topic
rather than by reference to a specific commenter.
A. Transfer of R&A Program From the Board to OLAP
The Department received nine comments addressing the transfer of
the administration of the R&A Program within EOIR from the Board to
OLAP. Six comments from non-profit organizations, bar associations, and
a government body supported the transfer as ``well-placed and
appropriate'' because of OLAP's mission to facilitate access to legal
representation and counseling and its record in doing so. Two of these
commenters expressed concern that the public and DHS staff may be
confused by the change in administrator, and another commenter stated
that the transfer may cause confusion because advocates have educated
the public about ``BIA recognized organizations'' and ``BIA accredited
representatives.'' However, all three commenters that had concerns
asserted that the confusion may be alleviated through clear public
guidance from OLAP on its role and responsibilities and the use of a
commonly recognized term, such as ``DOJ recognized organization'' or
``DOJ accredited representative.''
Three commenters opposed the transfer based on concerns about
whether OLAP's current staffing and resources are adequate to enable
OLAP to take on the new duties and responsibilities provided by the
rule.
The Department has made no change to the proposed rule and
accordingly the administration of the R&A Program will be transferred
from the Board to OLAP. See final rule at 8 CFR 1003.0. The Department
is committed to providing OLAP with sufficient resources to
successfully administer its new duties and responsibilities under this
rule. As suggested by the commenters, the Department will endeavor to
engage in significant education and outreach with the public and
government stakeholders regarding the R&A program, the changes in this
rule, and OLAP's role. Furthermore, the effective date of the final
rule on January 18, 2017, leaves considerable time after the date of
publication to provide time for public awareness and outreach and to
effectively and efficiently manage the transfer of the program. See 80
FR at 59523 n. 70 (``At the effective date of the final rule, a pending
application for initial recognition, initial accreditation, or renewal
of accreditation before the Board would be transferred to OLAP to
review. Organizations with such pending applications would have to meet
the new requirements of the final rule to be approved for recognition
or accreditation. OLAP will provide organizations with pending
applications the opportunity to amend the applications, if necessary,
to conform to the new requirements of the final rule. Further guidance
will be provided prior to the effective date of the final rule'').
B. Recognition and Accreditation
1. Recognition Qualifications
a. Accredited Representative Required and Inactive Status
The Department received 20 comments regarding the requirement that
an organization have at least one accredited representative to be
recognized, to maintain recognition, and to have its recognition
renewed. Of the 20 comments received, one supported the requirement,
eight generally supported the requirement, and 11 opposed the
requirement. The commenters that opposed the requirement and those that
generally supported it were primarily concerned that an organization
could have its recognition terminated if it lost its accredited
representative at any time during the validity period or if it did not
have one on staff at renewal because of the linking of recognition and
accreditation in the proposed rule. The commenters suggested that if
recognition and accreditation must be linked, the rule should provide a
grace period to give recognized organizations time to replace their
only accredited representative when the representative leaves the
organization or is otherwise terminated. The commenters asserted that
the grace period could come through the inactive status provision but
asked for clarification regarding whether placement on inactive status
was automatic or required an organization to request this status and
how long an organization could be permitted to remain on inactive
status. Commenters also raised a concern that one year after the
effective date of the final rule would not be sufficient time for
organizations that are currently recognized without an accredited
representative to obtain an accredited representative and come into
compliance with the rule.
The final rule retains the accredited representative requirement
for organizations to be recognized or renewed if the organization is
seeking recognition for the first time or is a currently recognized
organization without an accredited representative on the effective date
of the rule. See final rule at 8 CFR 1292.11(a)(3). The Department
believes that the requirement is a foundational element of the rule
because the purpose of recognizing an organization is to allow for the
accreditation of non-attorney representatives. The Department believes
that currently recognized organizations without an accredited
representative on the effective date of the rule will have sufficient
time to hire, train, and seek accreditation for a new representative,
given that the rule provides such organizations with an additional year
beyond the effective date to submit their application for renewal of
their recognition under this rule.\1\
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\1\ This provision also applies to currently recognized
organizations that only have attorneys on staff on the effective
date of the rule, January 18, 2017. Such organizations will have one
year from January 18, 2017, to seek accreditation for a new
representative and submit an application for renewal of recognition.
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Based on the comments, however, the Department recognizes that a
rigid requirement that an organization have an accredited
representative at all times does not account for the practical
realities that organizations face with limited budgets, the hiring
process, and employee turnover. In this regard, once an organization is
recognized, the final rule has unlinked recognition and
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accreditation so that an organization will not have its recognition
administratively terminated if it no longer has an accredited
representative. Recognized organizations that lose their only
accredited representative will be placed on inactive status, which is
clarified in the final rule at 8 CFR 1292.16(i), and they will be
allowed a reasonable amount of time to obtain a new accredited
representative before risking termination of recognition.
The final rule moves the regulatory text regarding inactive status
from proposed Sec. 1292.17(e) to 8 CFR 1292.16(i) and revises it so
that organizations are placed on inactive status when they have no
currently approved accredited representative on staff and they have
promptly notified OLAP of that situation as mandated by the reporting
requirements.\2\ Inactive status provides the organization with a grace
period of two years from the date the organization was placed on
inactive status to apply for and have approved at least one accredited
representative. The grace period provided by inactive status prevents
an organization from having its recognition administratively terminated
and gives it sufficient time to obtain a new representative. Under the
final rule, the OLAP Director has the discretion to extend an
organization's time on inactive status when warranted.
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\2\ A recognized organization on inactive status would remain on
the R&A roster with a designation that it has no accredited
representatives.
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The final rule makes clear that organizations on inactive status
must request renewal of recognition if their renewal period occurs
while on inactive status. See final rule at 8 CFR 1292.16(i). The OLAP
Director has the discretion to renew an inactive organization's
recognition without a currently approved accredited representative as
long as the organization otherwise meets the requirements for renewal
and attests that it intends to apply for and have approved a new
representative within two years of renewal. See final rule at 8 CFR
1292.11(a)(3), 1292.16(a), (i). If the renewal request is granted under
such circumstances, the organization will remain on inactive status and
have 2 years from the date of renewal to obtain a new accredited
representative.
Organizations on inactive status remain subject to administrative
termination of recognition under 8 CFR 1292.17. Specifically, their
recognition may be administratively terminated when they do not request
renewal of recognition while on inactive status or do not have an
individual approved for accreditation during the time period specified
at 8 CFR 1292.16(i).
Finally, an organization on inactive status is not authorized to
provide immigration legal services, unless it has at least one attorney
on staff. See final rule at 8 CFR 1292.16(i). Organizations on inactive
status that continue to provide immigration legal services without an
attorney on staff may be subject to disciplinary sanctions for the
unauthorized practice of law. The final rule adds a ground of
discipline for organizations at 8 CFR 1003.110(b)(5), if the
organization provides immigration legal services without an attorney or
accredited representative on staff.
b. Federal Tax-Exempt Status
The Department received 19 comments regarding the proposed
requirement that an organization establish that it is federally tax-
exempt. The Department asked for comment on this requirement and
specifically asked whether the requirement would be too restrictive and
whether Federal tax-exempt status should be limited to organizations
exempted under 26 U.S.C. 501(c)(3). See 80 FR at 59528.
Fourteen commenters supported the requirement, one commenter
generally supported the provision, and four commenters did not support
the provision. The majority of the fourteen commenters who supported
the provision urged that the final rule be as broad as possible to
extend to social service or similar organizations that do not fall
within the section 501(c)(3) Federal tax-exemption. Commenters asked
that a range of documents suffice to prove Federal tax-exempt status.
The commenter that expressed general support for the Federal tax-
exemption requirement stated that waivers of the requirement should be
given sparingly. Three of the commenters against the requirement
asserted that the burden of cost and time associated with seeking
Federal tax-exempt status would discourage capacity building. The
fourth comment in opposition stated that the requirement was too
stringent because it excluded certain institutions from becoming
recognized like public schools and libraries.
The final rule retains the requirement that organizations be
federally tax-exempt to be recognized,\3\ while changing the proof
required to show Federal tax-exempt status to include a variety of
supporting documents. See final rule at 8 CFR 1292.11(a)(2), (c). The
rule modifies the proof required to include an organization's currently
valid Internal Revenue Service tax exemption letter (under 26 U.S.C.
501(c)(3) or some other section of the Federal tax code),\4\
alternative documentation to establish Federal tax-exempt status, or
proof that it has applied for Federal tax-exempt status. See final rule
at 8 CFR 1292.11(d).
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\3\ In addition to establishing Federal tax-exempt status, as
discussed in section III.B.1.e below, an organization must also
establish that it is a non-profit religious, charitable, social
service, or similar organization that provides immigration legal
services primarily to low-income and indigent clients within the
United States in order to qualify for recognition.
\4\ Government entities, such as libraries, schools, or local
government offices, may provide a government information letter from
the Internal Revenue Service to show that the entity is exempt from
Federal taxes. This letter can be requested from the IRS free-of-
charge. Government Information Letter, Internal Revenue Service
(Jan. 26, 2016), https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Governmental-Information-Letter.
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As under the proposed rule, if an organization has not yet received
an IRS tax-exemption determination letter at the time it applies for
recognition, it may satisfy this requirement by submitting proof that
it has applied for Federal tax-exempt status. 80 FR at 59517. The final
rule, however, clarifies at 8 CFR 1292.11(f) that such organizations
will be granted conditional recognition. Conditional recognition allows
these organizations to begin providing services while their
applications for tax exemptions are pending and gives OLAP the
opportunity to evaluate the organizations at an earlier renewal date to
ensure that they have become federally tax-exempt and otherwise meet
the requirements for recognition. See generally 80 FR at 59524.
c. Elimination of Nominal Charges Requirement
The Department received 22 comments regarding the elimination of
the ``nominal charges'' requirement. Eighteen comments supported the
elimination of the requirement that a recognized organization charge
only a nominal fee for its immigration legal services because it tended
to impede the ability of organizations to serve greater numbers of
individuals in need and discouraged new organizations from seeking
recognition. Three commenters were against the elimination of the
requirement because they believed that it would place recognized
organizations in financial competition with private attorneys and could
lead to market-rate fees. The fourth comment against the change opposed
it because of concerns that the proposed substantial amount standard
would be even more burdensome for organizations than the ``nominal
charges'' requirement. This sentiment was shared by many of the
commenters who expressed support for
[[Page 92349]]
the elimination of the nominal charges requirement and is addressed
more fully in the next section.
The final rule eliminates the ``nominal charges'' requirement, as
proposed. The Department believes, as noted by the commenters, that the
elimination of the nominal charges requirement for recognition is
supported by the rule's other requirements that ensure that
organizations are non-profit, federally tax-exempt religious,
charitable, social service, or similar organizations that are primarily
serving low-income or indigent clients. These requirements mandate that
any ``[l]egal fees, membership dues, or donations charged or requested
by a recognized organization are expected to be at a rate meaningfully
less than the cost of hiring competent private immigration counsel in
the same geographic area,'' so that low-income and indigent clients are
able to access the organization's immigration legal services. 80 FR at
59519.
d. Substantial Amount of Budget Is Not Derived From Client Charges
The Department received 30 comments on the requirement that
organizations demonstrate that a substantial amount of its immigration
legal services budget is derived from sources other than funds provided
by or on behalf of immigration clients themselves, such as legal fees,
donations, or membership dues. The Department specifically requested
public comment on the substantial amount standard.
Twenty-four commenters opposed the substantial amount requirement.
The commenters objected to the standard because it placed an
impractical reliance on outside funding sources of revenue that was
unreflective of the diversity of ways in which organizations provide
immigration legal services or of the availability of outside funding.
They stated that many organizations depend on fees to provide legal
services and that even when they may have outside funding sources,
those funds may only be applied to certain legal services while other
services must be supported by fees. The commenters criticized the
requirement as being just as burdensome for organizations as the
nominal fee restriction because it lacked enough specificity for the
organizations to understand or OLAP to implement with ease or
consistency. They speculated that regardless of the percentage of
outside funding applied the requirement could lead organizations to
provide less services and volume of service in order to reduce their
fee revenue and meet the standard. Three commenters who supported the
requirement even noted that a too-stringent focus on outside sources of
funding could lead to organizations being unable to meet the standard
or a greater need for waivers of the requirement to the point that the
requirement would have no meaning. The commenters in opposition
recommended that the Department remove the substantial amount standard
from the final rule and shift the focus to whether organizations are
non-profit, federally tax-exempt religious, charitable, social service,
or similar organizations that are primarily providing immigration legal
services to low-income and indigent clients in the United States.
The final rule removes the substantial amount standard for
recognition and the associated waiver provision set forth in the
proposed rule. The Department agrees with the concerns of commenters
who opposed the standard that a requirement that an organization have
outside sources of funding would be unduly burdensome and act as a
potential deterrent to capacity building. The proper focus in the
recognition process is whether organizations are non-profit, federally
tax-exempt religious, charitable, social service, or similar
organizations that are primarily providing immigration legal services
to low-income and indigent clients in the United States. Accordingly,
as discussed below, the funding sources of an organization are one of
several relevant factors in that assessment.
e. Serving Primarily Low-Income and Indigent Persons and Non-Profit
Status
The Department received 16 comments on the proposed provision
requiring that an organization provide immigration legal services
primarily to low-income and indigent clients within the United States.
The Department specifically requested comment on this provision and the
corresponding requirement that, if an organization charges fees, the
organization has a written policy for accommodating clients unable to
pay for immigration legal services.
Ten commenters generally supported the requirements that recognized
organizations primarily serve low-income and indigent clients and have
a written policy to accommodate those unable to pay for immigration
legal services. However, these commenters and two additional commenters
stated that the proof required to demonstrate that organizations
primarily serve low-income and indigent clients was too burdensome. In
particular, commenters objected to producing guidelines to determine
whether individuals are low-income and indigent because of the
difficulty in verifying the income of clients with unconventional work
circumstances or inadequate documentation. They asserted that
organizations target the low-income and indigent communities as part of
their mission without defining the terms low-income and indigent. The
commenters recommended, as they did above regarding the substantial
amount standard, that the Department focus on an organization's non-
profit status, mission, and all of its other charitable reporting
duties to the Federal Government or local donors.
Four commenters stated that the final rule should set a standard or
provide guidance for what constitutes low-income and indigent. One
commenter recommended the Federal poverty standard, whereas another
commenter suggested a standard of household assets less than $10,000,
excluding the value of the client's residence and vehicle. A third
commenter stated that the rule should require organizations to show
that clients who are not low-income or indigent fall within some
multiple of the low-income standard. The last commenter stated that an
income percentage should be set so that organizations would know who
they may serve in order to be recognized.
The final rule retains the requirements that recognized
organizations primarily serve low-income and indigent clients and have
a written policy to accommodate those unable to pay for immigration
legal services and joins it with the requirement that the organization
be a non-profit religious, charitable, social service, or similar
organization. See final rule at 8 CFR 1292.11(a)(1). As discussed in
the proposed rule, these requirements are related. See 80 FR at 59518
(``In order to avoid recognizing organizations with for-profit motives
and to advance the requirement that organizations have a religious,
charitable, social service, or similar purpose, the proposed rule would
require an organization to establish that it provides immigration legal
services primarily to low-income and indigent clients.''). The
Department has determined that they should be considered together in
the final rule and, accordingly, has combined and amended the proof
required to satisfy these requirements. Under the final rule at 8 CFR
1292.11(b), an organization must submit: a copy of its organizing
documents, including a statement of its mission or purpose; a
declaration from its authorized officer attesting that it serves
primarily low-income and
[[Page 92350]]
indigent clients; a summary of the legal services to be provided; if it
charges fees for legal services, fee schedules and organizational
policies or guidance regarding fee waivers or reduced fees based on
financial need; and its annual budget. The organization may also submit
additional documentation to demonstrate non-profit status and service
to primarily low-income and indigent individuals, such as tax filings,
reports prepared for funders, or information about other free or low-
cost immigration-related services that it provides like educational or
outreach events.
These amendments to the proof required address the comments raised
and more accurately and simply allow organizations to show whether they
are non-profit religious, charitable, social service, or similar
organizations that primarily serve low-income and indigent clients. As
discussed in the proposed rule, the proof required to make this showing
cannot be limited to demonstrating tax-exempt status under 26 U.S.C.
501(c)(3) (concerning entities organized for religious, charitable,
social service, or other specified purposes), because such a
designation is for tax purposes and more significantly, organizations
may be recognized that are tax-exempt under other sections of the
Federal tax code. 80 FR at 59517. The rule thus requires an
organization's charter, by-laws, articles of incorporation, or similar
documents that show its religious, charitable, social service, or
similar mission.
The rule also includes as proof the organization's fee schedules
and organizational policies or guidance regarding fee waivers or
reduced fees based on financial need, if it charges fees for services.
As stated in the proposed rule:
Requiring recognized organizations to serve primarily low-income
and indigent clients necessarily affects the magnitude of legal
fees, membership dues, or donations, if any, that an organization
may charge or request. Charging or requesting excessive fees,
membership dues, or donations would not be consistent with the aim
of serving primarily low-income and indigent clients. An
organization that charges or requests such fees, dues, or donations
would be less likely to primarily serve low-income and indigent
clients, who have a limited ability to pay fees, and would be more
likely to have an impermissible profit-seeking motive and prey upon
vulnerable populations. Thus, while fees, dues, and donations for
immigration legal services are not defined under the proposed rule,
recognized organizations are expected to limit fees, dues, and
donations charged or requested so that low-income and indigent
clients are able to access the organization's immigration legal
services . . . Legal fees, membership dues, or donations charged or
requested by a recognized organization are expected to be at a rate
meaningfully less than the cost of hiring competent private
immigration counsel in the same geographic area.
80 FR at 59518-19. Thus, while the Department no longer intends to
scrutinize these fee schedules under the final rule because the
substantial amount requirement has been removed, the fee schedules may
be used to evaluate whether an organization is serving primarily low-
income and indigent clients and serve as a baseline when a complaint is
received about the fees charged by an organization. With respect to the
organizational policies or guidance regarding fee waivers or reduced
fees based on financial need, the Department does not require
organizations to produce guidelines to determine whether individuals
are low-income and indigent but it does expect that an organization's
policies or guidance mention the factors or standards used when
deciding to provide a fee waiver or reduced fees. Such information
informs the Department's understanding of the organization's non-profit
purpose to serve primarily low-income and indigent clients and gives
the organization's clients some sense of the circumstances that would
warrant fee waivers or reduced fees.
Finally, the organization must include its annual budget for
immigration legal services. Under the proposed rule, the budget was
necessary for an analysis of the organization's funding under the
substantial amount standard. Now, the budget will serve as further
evidence that the organization is a non-profit that primarily serves
low-income and indigent clients. The budget will show sources of
revenue apart from fees, like grants and monetary or in-kind donations.
To the extent that an organization cannot make such a showing of
outside funding sources and is fee-dependent, the factors discussed
above in addition to other documentation, such as its tax filing,
letters of recommendation from the community, its annual report, or
information about other free or low-cost immigration-related services
that it provides, will be considered.
f. Knowledge and Experience
Fifteen commenters sent the Department comments on the recognition
requirement that an organization have ``access to adequate knowledge,
information, and experience in all aspects of immigration law and
procedure,'' 80 FR at 59538, and the related accreditation requirement
that a proposed representative possess ``broad knowledge and adequate
experience in immigration law and procedure,'' 80 FR at 59539. Both
requirements are consistent with the Board's current decisions
regarding the knowledge and experience sufficient to warrant
recognition and accreditation. 80 FR at 59519-59520. For the reasons
set forth below, the final rule retains the requirements for knowledge
and experience for recognition and accreditation as stated in the
proposed rule. See final rule at 8 CFR 1292.11(a)(4), 1292.12(a)(6).
Four commenters expressed support for the recognition and
accreditation requirements regarding knowledge and experience. Three of
these commenters further stated that they appreciated that the rule
allowed for flexibility in showing education, training, and experience
by not mandating a specific number of formal training hours, specific
courses, or testing.
Eight commenters objected to the requirements because they lacked
specificity regarding the knowledge and experience required for
recognition and accreditation. They contended that the rule may fail to
properly advise organizations as to the level of knowledge and
experience required, or in the alternative, it could permit unqualified
individuals to become accredited. Some of these commenters urged the
Department to develop and administer a test for accreditation, or to
require a minimum number of hours of on-the-job training or supervised
practice before seeking accreditation. Others recommended that the
Department develop a uniform, standardized training program on its own
or in collaboration with DHS or other non-profit organizations, or
require a specified number of immigration legal trainings per year. Two
commenters stated that the Department should, as discussed in the
proposed rule, make known, or even require completion of, recommended
education, testing, training courses and hours, or internships that
would satisfy the knowledge and experience requirements for
accreditation.
Five commenters asserted that the rule should require that
organizations have attorney supervision or mentors in order to satisfy
the knowledge and experience requirement to be recognized. According to
these commenters, an attorney supervision or mentoring requirement
would provide much needed oversight to avoid the improper handling of
cases while also preventing unscrupulous individuals from attempting to
obtain recognition and accreditation. Attorney supervision or mentoring
could be achieved through
[[Page 92351]]
an attorney on staff or a formal arrangement with an attorney or
another recognized organization with attorneys on staff. A waiver of
the requirement could be provided when it was cost-prohibitive or not
feasible due to a lack of attorneys in an area.
While the Department understands the concerns raised regarding the
need for attorney supervision or mentoring and more specific testing or
training requirements, such requirements would not advance the rule's
goal to increase capacity because they would result in increased costs
for non-profit organizations. The flexible approach adopted by the rule
allows organizations to meet the knowledge and experience requirements
in a number of ways, and it is currently used by the Department in the
recognition and accreditation process.
Nonetheless, the Department recognizes that the knowledge and
experience requirements would benefit from some parameters. As stated
in the proposed rule, the Department intends to provide guidance on the
knowledge and experience required for accreditation so that
organizations are generally aware of the education, testing, training
courses and hours, or internships that could satisfy the standard. 80
FR at 59520. Similarly, the Department encourages, but does not
require, organizations to have attorney supervision or mentors because
attorney supervision or mentorship will likely show that an
organization has access to adequate knowledge, information, and
experience in order to be recognized. 80 FR at 59519.
Furthermore, to the extent that an organization or representative
engages in unscrupulous behavior or unprofessional conduct during the
course of representation, the conduct may be remedied through the
disciplinary process or the rule's other oversight procedures.
g. Authorized Officer
The Department received eight comments regarding the recognition
requirement that an organization designate an authorized officer who is
empowered to act on its behalf for all matters related to recognition
and accreditation. All of the comments supported the requirement, and
the only concern raised was that organizations did not want to be
unduly penalized because staff turnover leads an organization to lack
an authorized officer briefly. The Department acknowledges that
organizations and their appointed authorized officer may change over
time, and the final rule requires organizations to promptly report such
changes pursuant to 8 CFR 1292.14(a). The Department believes that 30
days will generally be sufficient time for organizations to appoint
someone to act in the capacity of an authorized officer until a
replacement is designated, if they cannot designate a permanent
replacement within that time, and to notify the OLAP Director of the
change. The final rule without change adopts the requirement for an
organization to designate an authorized officer. See final rule at 8
CFR 1292.11(a)(5).
2. Accreditation Qualifications
a. Character and Fitness
The Department received a number of comments on the replacement of
the requirement that an accredited representative be a person of good
moral character, with the requirement that a proposed representative
possess the ``character and fitness'' to represent clients before the
immigration courts, the Board, or DHS. The Department specifically
asked for comments on the change and what factors may be relevant to
the character and fitness assessment. In relation to the factors, the
Department asked whether current immigration status should be a factor
and to what extent EOIR should consider whether the individual has
employment authorization, has been issued a notice of intent to revoke
or terminate an immigration status (or other relief), such as asylum or
withholding of removal or deportation, or is in pending deportation,
exclusion, or removal proceedings.
The Department received 16 comments on the change from good moral
character to character and fitness. Eleven of the comments expressed
opposition to the change, although two of the comments voiced
opposition to the change without any stated reason. One comment in
opposition was expressly adopted by five other commenters and
reiterated by two other commenters. The commenters objected to the
character and fitness requirement because it is the same requirement
applied to attorneys in order for them to practice law. The commenters
claimed that the requirement is not appropriate for accredited
representatives because they differ from attorneys in that they can
only provide immigration legal services and can only do so through a
recognized organization. Three commenters also raised a concern that
the character and fitness requirement may increase administrative
burdens for the organization in the accreditation process. In
particular, they recommended that the organization's attestation of
good moral character and letters of recommendation, rather than
background check documentation, should be sufficient to demonstrate
good moral character.
Five commenters expressed support for the change to the character
and fitness requirement. Two of these commenters stated that the
character and fitness requirement was appropriate because it would
align the accreditation process with the process for attorneys to be
admitted to their State bars to practice law. In contrast, one
commenter asserted that while a general character and fitness standard
was appropriate, the standard should not be identical to the standard
applied to attorneys.
The final rule retains the character and fitness requirement for
accreditation. The Department agrees with the commenters who supported
the requirement. Accredited representatives should be held to a similar
standard of character and fitness as attorneys for the admission to
practice law because accreditation allows an individual to provide
immigration legal services. The fact that accredited representatives
are limited to providing immigration legal services and are required to
work through a recognized organization is immaterial because they are
permitted to perform a function that is generally limited to attorneys
held to the character and fitness standard.
Additionally, the Department does not believe that the character
and fitness requirement will create administrative burdens for
organizations because organizations would not have to submit the
extensive documentation that attorneys submit to obtain admission to a
State bar. In fact, the same documents that may be used under the
current regulation to show good moral character may be used to show
character and fitness. Board of Immigration Appeals, Frequently Asked
Questions about the Recognition and Accreditation Program 22 (Sept.
2015), https://www.justice.gov/eoir/recognition-and-accreditation-faqs/download. The character and fitness requirement may be satisfied
through attestations of the authorized officer of the organization and
the proposed representative and letters of recommendation or favorable
background checks. 80 FR at 59520. Additional documentation beyond this
would only be necessary if the proposed representative has an issue in
the proposed representative's record regarding the proposed
representative's honesty, trustworthiness, diligence, professionalism,
or reliability. 80 FR at 59520 & n.42.
[[Page 92352]]
The Department received 29 comments regarding whether immigration
status should be considered as a factor in the character and fitness
assessment. Twenty-five commenters objected to the use of immigration
status as a factor, and three other commenters expressed general
concerns about how immigration status as a factor would negatively
affect the ability to provide legal services through immigrants or
volunteers. The 25 comments in objection generally rejected the
proposition that there was an ``inherent conflict in having accredited
representatives represent individuals before the same agencies before
whom they are actively appearing in their personal capacities.'' 80 FR
at 59520. Seventeen commenters stressed that a representative's
personal immigration experience enhances the representative's ability
to effectively represent others and guide them through the process.
Four of the seventeen commenters further noted that they employed
accredited representatives who are immigrants and had not witnessed or
dealt with any conflict of interest during these representatives'
representation of other immigrants as a result of their own personal
immigration experience. Eight commenters stated that attorneys are not
restricted from appearing in a professional capacity before courts in
which they may have a personal matter pending and that immigrants are
not typically excluded from the legal profession because of their
immigration status alone. The commenters concluded that individuals
should not be excluded from eligibility for accreditation based on
their immigration status alone, regardless of whether they have
employment authorization, are in removal proceedings, or are recipients
of Deferred Action for Childhood Arrivals, because immigration status
does not create an inherent conflict. They argued that immigration
status is not related to the character and fitness assessment as it has
no bearing on an individual's honesty, trustworthiness, diligence, or
professionalism and that considering it would potentially reduce
capacity by excluding a segment of individuals who are likely to become
representatives.
Six commenters also rejected the proposition that an individual's
immigration status would have any more effect on the continuity of
representation than any other factor. They asserted that the same
concern could be raised by other circumstances unrelated to immigration
status, such as a new job, an illness, or maternity leave. Two
commenters noted that the rule's goal of increasing capacity would be
best served by allowing willing and capable individuals to become
accredited representatives, even if they may be unable to represent a
client on occasion or to completion of the client's matter.
Five commenters that opposed immigration status as a factor offered
suggestions for dealing with potential conflicts of interest or
disruption in representation. One stated that the potential conflicts
could be addressed through existing safeguards, such as the Rules of
Professional Conduct for Practitioners. Another commenter asserted that
potential conflicts should be handled on a case-by-case basis, rather
than a categorical rule disqualifying individuals from accreditation.
In this same regard, two commenters suggested that if a representative
was in active removal proceedings, the representative could withdraw or
EOIR could disqualify the representative from cases before the
Immigration Judge hearing the representative's case. The fifth
commenter suggested that a representative could name another person to
continue the representation if the representative is removed from the
United States while representing other persons.
One commenter suggested that immigration status could be a factor
in the character and fitness determination, acknowledging that an
individual's immigration status may present a conflict of interest. The
commenter stated that the level of immigration status required to
satisfy the character and fitness standard depends on an examination of
the individual's employment relationship with the organization, the
resources of the organization, and the type of accreditation sought.
After considering the comments received, the Department has
determined that no change will be made to the proposed rule and that
immigration status may be considered as a factor in the character and
fitness determination for accreditation in certain circumstances. See
final rule at 8 CFR 1292.12(a)(1). The Department recognizes that
individuals who have been through the immigration system can provide
valuable insight and assistance to others going through the system.
However, as with any applicant for accreditation, not all individuals
are fit to be accredited by the Department to provide immigration legal
services. The Department has and will continue to consider issues
relating to immigration status in determining whether an immigration
practitioner is fit to appear before DHS and EOIR.\5\ Thus, the
Department will make case-by-case assessments regarding accreditation,
but as suggested by some commenters, the Department will likely not
accredit individuals who are in active deportation, exclusion, or
removal proceedings or who have been issued a notice of intent to
revoke or terminate an immigration status (or other relief) until the
matter is concluded.\6\ In these circumstances, the Department, through
OLAP, will make the case-by-case assessment of whether an individual's
immigration status presents an actual or perceived conflict of interest
after such information arises that calls into question the individual's
fitness to appear as a representative and, as the rule provides, the
organization is given the opportunity to respond to the information.
Similarly, individuals who are under an order of removal will generally
not be eligible for accreditation unless they have received, for
example, temporary protected status or Deferred Enforced Departure.\7\
The rule, however, does not require an organization to present proof of
any immigration status during the application process.\8\
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\5\ See, e.g., Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ
July 8, 2009), and Matter of Noel Peter Mpaka Canute, D2010-124
(OCIJ Mar. 16, 2011), available at https://www.justice.gov/sites/default/files/eoir/legacy/2014/02/03/CanuteMpakaNoelPeter_FinalOrder.pdf (last visited June 28, 2016).
\6\ For purposes of this rule, individuals whose proceedings
have been administratively closed would not be considered to be in
active proceedings.
\7\ This restriction does not apply to individuals who have been
granted withholding of removal pursuant to 8 U.S.C. 1231(b)(3) or
the Convention Against Torture, although under an order of removal.
\8\ We note that when an accredited representative is an
employee of the organization, the organization has an independent
obligation to verify that its accredited representative employee is
authorized to work in the United States. 8 U.S.C. 1324a; see also 80
FR at 59520 n.43. Therefore, the Department will not consider
employment authorization in its character and fitness assessment.
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b. Employee or Volunteer
The Department received four comments on the requirement that a
proposed representative for accreditation be an employee or volunteer
of an organization so that the representative would be subject to the
direction and supervision of the organization. The four comments all
supported the requirement and stressed that the rule's explicit
permission for volunteers to become accredited representatives would
help increase capacity.\9\ The final rule retains without
[[Page 92353]]
change the requirement that the proposed representative be an employee
or volunteer of an organization to be accredited. See final rule at 8
CFR 1292.12(a)(2).
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\9\ UFW Foundation, although in agreement with the employee/
volunteer requirement, suggested that the rule should permit an
individual to become an accredited representative even though that
individual may not be an employee or volunteer of an organization
provided that the individual has adequate supervision and direction
from a recognized organization. UFW Foundation posited that this
circumstance would likely occur in rural communities where two
organizations partner--one provides legal oversight and supervision
and the other provides staff and space--in order to create a legal
service infrastructure that neither could provide alone. The rule
does not directly address such a circumstance, and as a result,
contrary to UFW Foundation's assertion, it may be permissible in
some form. For instance, a recognized organization may be able to
extend its recognition and provide legal services through its own
accredited representative at a location of another non-recognized
organization.
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c. No Attorneys, No Orders Restricting Practice of Law or
Representation, No Serious Crimes
The Department received three comments on the provision that
precludes attorneys, individuals under an order restricting their
practice of law, and individuals convicted of a serious crime from
being accredited. The first comment supported the restriction from
accreditation of attorneys and those under an order restricting their
practice of law. The other comments objected to the bar to
accreditation of an individual convicted of a serious crime because it
conflicts with the character and fitness requirement and may prevent
otherwise qualified individuals from becoming accredited.
The final rule does not change the restriction against
accreditation of attorneys, individuals under an order restricting
their practice of law, and individuals convicted of a serious crime.
See final rule at 8 CFR 1292.12(a)(3)-(5). Regarding those convicted of
a serious crime, this prohibition supplements the character and fitness
requirement, as the Department has determined that individuals with
serious crimes are not qualified to be accredited. Unlike with
attorneys permitted to appear before EOIR and DHS, the Department has
the authority to decide whether non-lawyers should be accredited and
permitted to provide immigration legal services in the first instance
and need not be limited to pursuing discipline against them based on a
serious crime after they have been accredited.
3. Applying for Recognition and Accreditation
The Department received four comments related to the provisions
governing the application process for recognition and accreditation.
The four comments conveyed general support for the application process
but expressed some concerns. One commenter stated that EOIR should have
a formal process for training and communicating with United States
Citizenship and Immigration Services (USCIS), Department of Homeland
Security, regarding its role in the recommendation process for
recognition and accreditation. Relatedly, another commenter stated that
the process for service on the USCIS district director in the
jurisdictions where the organization offers or intends to offer legal
services should be simplified. This commenter asserted that the current
EOIR Form-31 only has space to indicate service on one USCIS district
director and suggested that service should be limited to the USCIS
district director who is located in the jurisdiction of the proposed
representative's primary office. This commenter also requested that a
list of contact information for USCIS district directors be made
available. Two commenters asserted seemingly opposing concerns about
the length of the application process due to the ability of OLAP to
request more information from an organization in order to avoid adverse
determinations. One commenter worried that the procedure could lead to
increased processing times, whereas the other commenter suggested that
organizations should have at least 90 days to respond to requests for
information.
The final rule adopts the application procedures as proposed,
except for changes that allow an organization to request
reconsideration of a disapproved request,\10\ and that permit OLAP to
allow requests, notifications, recommendations, and determinations in
the application process to be done electronically.\11\ See final rule
at 8 CFR 1292.13(a). As mentioned above, the Department intends upon
publication of the final rule to engage in significant education and
outreach with government stakeholders like USCIS so that they are aware
of its implementation and their role in the process. The Department has
not amended the service procedure in the final rule, as recommendations
from all USCIS offices where an organization provides or intends to
provide services ensures consideration of the greatest possible amount
of information about an organization and its proposed representatives.
The updated EOIR Form-31 for recognition-related requests and EOIR Form
31-A for accreditation requests should simplify the procedure for
service, as they include several lines to indicate service has been
made on multiple USCIS offices. The Department will also publicize a
list of USCIS offices that is readily available.\12\ The Department has
not included a specified time period for organizations to respond to a
request for information from OLAP, but OLAP will ensure that the
response times are reasonable. See 80 FR at 59521 n.54 (stating that
EOIR intends to regularly make available average processing time for
recognition and accreditation applications). Additionally, for timely-
filed requests for renewal, the recognition of an organization and the
accreditation of representatives remain valid pending OLAP's
consideration of the renewal request. See final rule at 8 CFR
1292.16(b)(3). Accordingly, the processing times for renewal requests
will not prejudice organizations or their representatives.
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\10\ See infra section III.F. (``Request for Reconsideration and
Administrative Review'') (discussing requests for reconsideration).
\11\ See infra section III.E. (``Recognition and Accreditation
for Practice Before DHS'') (regarding electronic requests,
notifications, recommendations, and determinations).
\12\ See USCIS Office of Public Engagement, USCIS District
Offices (Dec. 2011), available at https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2011/December%202011/District%20Office%20Mailing%20Addresses.pdf
(last visited Feb. 29, 2016).
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4. Extending Recognition and Accreditation
The Department received 20 comments regarding the provision that
permits OLAP the discretion to extend an organization's recognition and
the accreditation of its representatives from a headquarters or other
designated office to other offices or locations where the organization
provides immigration legal services. Nineteen commenters overwhelmingly
supported this provision as a means of increasing capacity and reducing
the administrative burden on organizations to file a separate
application for recognition and accreditation at each location offering
legal services. One commenter opposed the provision, unless an
organization had attorney supervision of its accredited
representatives.\13\ The final rule adopts the provision as proposed
and adds that OLAP may permit requests for extension of recognition and
accreditation and determinations on the requests to be made
electronically. See final rule at 8 CFR 1292.15.
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\13\ See supra section III.B.1.f. (``Knowledge and experience'')
(stating that attorney supervision is encouraged but not required to
be recognized).
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[[Page 92354]]
5. The Validity Period, Renewal of Recognition and Accreditation
Twenty-one commenters provided input regarding the three-year
validity period for both recognition and accreditation and renewal
thereof. The commenters generally supported or did not mention the
three-year validity period and renewal process for accredited
representatives. Instead, the comments were directed in opposition to
the three-year validity period for recognition and concurrent renewal
of recognition and accreditation. The commenters generally did not
oppose a validity period and renewal process for recognized
organizations in order to improve oversight, but they contended that
the proposed three-year period was too short and recommended a period
of up to nine years. They claimed that the three-year period was
unnecessarily burdensome in that organizations do not change in
substantial ways in a three-year period and because the renewal process
would require organizations to shift resources away from providing
immigration legal services in order to comply with the renewal
requirements, such as the annual report. The commenters noted that the
burden would be compounded because organizations and their
representatives would have to seek renewal concurrently every three
years. The commenters also asserted that concurrent renewal of
recognition and accreditation may serve as a disincentive to apply for
accreditation if the organization's recognition period was set to
expire in a short period of time. The majority of commenters urged the
Department to un-link the validity periods for recognition and
accreditation and to provide a longer validity period for recognized
organizations.
After considering the comments, the Department has decided to
retain the three-year validity period for accredited representatives
but to modify the validity period for recognized organizations. See
final rule at 8 CFR 1292.12(d); 8 CFR 1292.11(f). Under the final rule,
recognition will be valid for a period of six years, unless the
organization has been granted conditional recognition, which is valid
only for two years, or the organization has its recognition
administratively terminated or is disciplined (through revocation or
termination) prior to the conclusion of its recognition period. See
final rule at 8 CFR 1292.11(f). An organization's six-year recognition
period would run independently of the three-year period of
accreditation for its representatives.\14\ Therefore, organizations and
their representatives will seek renewal of recognition and
accreditation separately at the conclusion of their respective
recognition and accreditation cycles. See final rule at 8 CFR
1292.16(b).
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\14\ See supra section III.B.1.a. (``Accredited representative
required & inactive status'') (addressing accredited representative
requirement and inactive status).
---------------------------------------------------------------------------
The final rule retains the renewal process for recognized
organizations and accredited representatives, except for changes that
allow an organization to request reconsideration of a disapproved
request,\15\ and that authorize OLAP to allow requests, notifications,
recommendations, and determinations in the application process to be
made electronically.\16\ See final rule at 8 CFR 1292.16.
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\15\ See infra section III.F. (``Request for Reconsideration and
Administrative Review'') (discussing requests for reconsideration).
\16\ See infra section III.E. (``Filings and Communications'')
(regarding electronic requests, notifications, recommendations, and
determinations).
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6. Organizations and Representatives Recognized and Accredited Prior to
the Effective Date of the Final Rule
The Department received three comments regarding the provision
governing when organizations and representatives recognized and
accredited prior to the effective date of this final rule would have to
seek renewal. The three comments generally opposed the provision that
required recognized organizations without an accredited representative
on staff at the effective date of the final rule to seek renewal and
comply with the accredited representative requirement within one year
of the effective date of the rule. These commenters also stated that
the requirement that an organization would have to seek renewal of its
recognition and the accreditation of its representatives if they sought
to extend recognition to an additional office or location or to
accredit a new representative would cause organizations to refrain from
either action and discourage capacity building.
The final rule, as discussed above, retains the requirement that
recognized organizations without an accredited representative on staff
at the effective date of the final rule request renewal within one year
of the effective date of the rule.\17\ See final rule at 8 CFR
1292.16(h)(2)(i). However, the Department agrees with the commenters
and has removed the provision requiring renewal for all other
organizations recognized at the effective date of the final rule if
they seek extension of recognition or accreditation of a new
representative. Consistent with the changes made elsewhere in the final
rule, renewal of organizations and representatives recognized and
accredited prior to the effective date of the rule has been de-coupled.
Such organizations will only be subject to the renewal timelines as
proposed and maintained in the final rule. See final rule at 8 CFR
1292.16(h)(2)(ii), (iii). Accredited representatives, on the other
hand, will have to seek renewal at the expiration of their three-year
accreditation period under the current regulation. See final rule at 8
CFR 1292.16(h)(3).
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\17\ See supra section III.B.1.a. (``Accredited representative
required & inactive status'') (discussing accredited representative
required requirement).
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7. Conditional Recognition
The Department received 12 comments regarding the proposed rule's
provision for conditional recognition of organizations that have not
been previously recognized or that are recognized anew after having
lost recognition due to an administrative termination or disciplinary
sanctions. Conditional recognition provides a probationary period and
requires the specified organizations to apply for renewal within two
years of the date that OLAP granted conditional recognition. The
Department specifically asked for public comment on conditional
recognition and whether conditionally recognized organizations would be
able to remove the conditional status after one year instead of two.
Eleven commenters generally supported the provision, but the
majority of these commenters wanted to exclude established, federally
tax-exempt non-profit organizations that were adding immigration legal
services to their service portfolio from conditional recognition. They
sought to limit conditional recognition to organizations with pending
Federal tax-exempt status and organizations reapplying after an
administrative termination or disciplinary sanctions. One commenter in
support of the provision stated that the public may view the
designation of conditional recognition as a sign of mistrust or lack of
ability, whereas another suggested that the time period for renewal
should be shortened from two years to 18 months. The dissenting comment
stated that conditional recognition was an unnecessary administrative
burden and that all organizations should be treated equally.
The final rule adopts the conditional recognition provision as
proposed and
[[Page 92355]]
adds as clarification that it also applies to organizations whose
Federal tax-exempt status is pending at the time of recognition. See
final rule at 8 CFR 1292.11(f). While the Department appreciates the
thoughtful comments on this issue, it has determined that because the
final rule provides a six-year renewal period for established
recognized organizations,\18\ a two-year initial renewal period is
appropriate for organizations that have not been previously recognized,
whose Federal tax-exempt status is pending at the time of recognition,
or that have been previously administratively terminated or subject to
disciplinary sanctions. These organizations, regardless of their
history as non-profits, must show within two years of recognition that
they can maintain the qualifications for recognition and establish a
track record of offering immigration legal services through accredited
representatives without issue. Any organization that has been
conditionally recognized will not be identified as such on the R&A
roster; rather, the roster will show that the organization's renewal
date is in two years rather than six.
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\18\ See supra section III.B.5 (``The Validity Period, Renewal
of Recognition and Accreditation'') (discussing validity period of
recognition and accreditation).
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8. Reporting, Recordkeeping, and Posting Requirements
The Department received 16 comments related to the reporting,
recordkeeping, and posting requirements imposed on organizations by the
proposed rule. One commenter supported all three requirements. Three
other commenters stated their agreement with the posting requirement
and none dissented. Seven commenters addressed the reporting
requirements and stated general support for the duty to report changes.
Six of these commenters, however, requested that the number and type of
changes that need to be reported should be limited to changes that
affect the R&A roster and that electronic submission of the changes
should be permitted. The other commenter stated that changes should be
reported in an annual report, unless OLAP requests an update at an
earlier date. Fourteen commenters asserted concerns regarding the
recordkeeping requirements. All of these commenters voiced concerns
regarding the annual report because it would create a new burden in
time and money for organizations and shift resources away from the
provision of legal services. Some of the commenters stated that they do
not currently track the information requested in the proposed rule for
the annual report and that recordkeeping should be limited to documents
that organizations already maintain, such as fee schedules, tax
filings, and annual budgets. One commenter suggested that if the annual
report would be required under the final rule, it should concern the
immigration legal services of the organization as a whole. Eight of the
commenters urged the Department to consider whether organizations
should be required to compile and submit annual reports and fee
schedules at the time of renewal. They recommended that organizations
should only be required to submit such documentation with cause or
while under investigation.
The final rule adopts the posting requirement as proposed, see
final rule at 8 CFR 1292.14(c), but amends the reporting and
recordkeeping requirements. The final rule revises the duty to report
to permit electronic notification of changes to be submitted to OLAP.
See final rule at 8 CFR 1292.14(a). The Department has not otherwise
modified the scope or timing of the duty to report because the scope
has been appropriately limited to changes in information that would be
listed on the R&A roster or that would affect an organization's or
representative's eligibility to be recognized or accredited. Due to the
nature of these types of changes, they must be reported promptly. 80 FR
at 59524. The Department believes that 30 days will generally
constitute prompt notification.
The final rule revises but does not remove the recordkeeping
requirement. See final rule at 8 CFR 1292.14(b). The Department
understands the concerns raised by commenters regarding the
recordkeeping requirement--in particular the annual report--but has
retained the requirement because it provides OLAP with a means to
monitor organizations and ensure compliance with the recognition
requirements. An organization's annual report on the services provided
assists in the evaluation of whether a recognized organization is
actually providing immigration legal services and is a non-profit
primarily serving low-income and indigent clients. Nonetheless, based
on the comments received, the final rule renames the annual report as
the ``annual summary of immigration legal services provided'' to avoid
confusion with other annual reports that organizations may prepare.
More significantly, the information required to be submitted is more
concise and has shifted to a focus on the legal services provided by
the organization as a whole, rather than by its accredited
representatives individually. The annual summary of immigration legal
services provided must include: The total number of clients served
(whether through client intakes, applications prepared and filed with
USCIS, cases in which the organization's attorneys or accredited
representatives appeared before the Immigration Courts or, if
applicable, the Board, or referrals to attorneys or other
organizations) and clients to which it provided services at no cost; a
general description of the immigration legal services and other
immigration-related services (e.g., educational or outreach events)
provided; a statement regarding whether services were provided pro bono
or clients were charged in accordance with a fee schedule and
organizational policies or guidance regarding fee waivers and reduced
fees; and a list of the offices or locations where the immigration
legal services were provided. The summary may include the total amount
of fees, donations, and membership dues, if any, charged or requested
of immigration clients. Organizations likely have such information for
their own purposes because it tracks the work that they perform and it
is information that they likely provide to funders and donors. If
organizations do not compile such information presently, it should not
be difficult to start because of its general nature. For organizations
recognized at the time of the effective date of this rule, information
would only be requested from the effective date of the rule (i.e.,
January 18, 2017).
C. Administrative Termination of Recognition and Accreditation
The Department received nine comments on the provision regarding
administrative termination of recognition and accreditation. Six
commenters generally supported the administrative termination provision
as a means for removing an organization or representative from the R&A
roster for administrative, non-disciplinary reasons. However, these
commenters recommended several changes to the provision. They stated
that the OLAP Director should request information from an organization,
representative, DHS, or EOIR prior to terminating recognition or
accreditation. They also expressed concern that termination of
recognition would lead to termination of a representative's
accreditation and asserted that the representative should be given a
limited amount of time to transfer to another recognized organization
so that clients would not lose representation. Likewise, the commenters
stated that an organization
[[Page 92356]]
should be placed on inactive status and given time to find a new
representative if its only accredited representative is terminated,
rather than have its recognition terminated, so that it would not have
to go through the process of seeking recognition anew when it found a
new individual to be accredited.
One of the three remaining commenters stated that the Board should
have authority for administrative termination of recognition and
accreditation, instead of OLAP, because of the opportunity for a
hearing. The two other commenters asserted that accreditation should
only be terminated if there is an adverse determination.
The Department has adopted the administrative termination provision
of the proposed rule, except as modified to accommodate the changes
made in relation to the request for reconsideration and inactive status
provisions added to the rule and discussed above. The Department has
not amended the regulatory text to require that the OLAP Director
request information from an organization, representative, DHS, or EOIR
prior to terminating recognition or accreditation because not all
grounds for termination require OLAP to contact anyone. For example, if
an organization or representative voluntarily requests termination of
their recognition or accreditation, OLAP has no reason to contact the
organization for further information. However, the Department notes
that the rule specifically requires the OLAP Director to contact the
organization and provide it with the opportunity to respond to certain
deficiencies affecting eligibility for recognition or accreditation
prior to determining whether to issue a termination notice. 80 FR at
59525; see also final rule at 8 CFR 1292.17(b)(5), (6), (c)(6).
The final rule addresses the concern that an organization could be
administratively terminated through the inactive status provision added
to the final rule and discussed above. The final rule, however, does
not make any changes regarding the administrative termination of
accreditation where the representative's organization has its
recognition terminated. Accreditation is dependent on the supervision
and resources of a recognized organization, and an accredited
representative should not be permitted to maintain accreditation, even
if time limited, if the representative no longer has a connection to a
recognized organization.
D. Sanctioning Recognized Organizations and Accredited Representatives
The Department received four comments regarding the rule's updates
and additions to the disciplinary process, from three non-profit
organizations and one bar association. Three of the commenters stated
their general support for the provisions. The fourth commenter also
expressed general agreement with the provisions but inquired into some
aspects. In particular, the commenter stated that the rule adds a
ground for organizational discipline for failure to adequately
supervise its accredited representative but was unclear as to whether
the EOIR disciplinary counsel or OLAP would be required to share
complaints, warning letters, admonitions, or agreements in lieu of
discipline in order to put the organization on notice of a
representative's conduct and give it the opportunity to remedy the
conduct. The commenter also inquired into the standards that would be
applied to determining the appropriate sanction for organizations and
suggested that the rule should impose a time period during which an
adjudicating official would have to render a decision on a petition for
an interim suspension due to the urgency of the possible situation.
The Department has adopted the changes to the disciplinary
provisions set forth in the proposed rule, except for the modifications
discussed above regarding inactive status and below regarding a
drafting error about reinstatement in the proposed rule. The Department
acknowledges that the rule does not require the EOIR disciplinary
counsel or OLAP to share information about accredited representatives
with their organizations but clarifies that the EOIR disciplinary
counsel will provide an organization with notice prior to taking
disciplinary action against an organization for failure to supervise.
80 FR at 59526; see also final rule at 8 CFR 1003.108(b). The rule also
does not prescribe standards for the application of sanctions to
organizations but would apply the same flexible framework that is
applied to immigration practitioners when determining the level of
sanction. Generally, adjudicators examine the type of misconduct that
occurred, whether it was done intentionally, knowingly, or
inadvertently, the harm caused, and any aggravating or mitigating
factors.\19\ Finally, although the rule also does not impose a time
period for an adjudicator's decision on a petition for interim
suspension so as to not interfere with the adjudicator's discretion, it
would be expected that a decision would be issued within a reasonable
period of time based on the nature of the petition.
---------------------------------------------------------------------------
\19\ See ABA, Standards for Imposing Lawyer Sanctions (1992);
see, e.g., Matter of Ramos, 23 I&N Dec. 843 (BIA 2005) (finding that
expulsion was an appropriate sanction based on his disbarment from a
state bar due to extensive unethical conduct).
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E. Filings and Communications
Six commenters recommended that the Department facilitate the duty
to report changes by permitting electronic submissions. The Department
agrees that electronic filings and communications would be beneficial.
EOIR is considering, in the future, permitting the electronic
submission of a wide range of documents related to the R&A program.
Such documents could include: Requests for recognition and
accreditation, renewal, and extension of recognition and accreditation;
responses to inquiries and notices from EOIR; recommendations from DHS
and the EOIR disciplinary counsel and anti-fraud officer, and responses
thereto; reports and notifications of changes in organization
information or status; and complaints against recognized organizations
and accredited representatives. EOIR is also considering communicating
electronically with prospective and current organizations, DHS, and the
EOIR disciplinary counsel and anti-fraud officer. EOIR may
electronically transmit documents such as: Decisions to approve or
disapprove requests for recognition and accreditation, renewals,
extensions of recognition and accreditation, extension of time
requests; inquiries to organizations for additional information or
disclosing unfavorable information; and determinations regarding
inactive status and administrative termination of recognition and
accreditation. In anticipation of such electronic filings and
communications, the Department has revised Sec. Sec. 1292.13(a),
1292.14(a), 1292.15, 1292.16(e), 1292.17(a), (d), (e), and (f), and
1292.18(a). No notice-and-comment period is required for the revisions
described in this paragraph, as they pertain to ``agency organization,
procedure, or practice'' under 5 U.S.C. 553(b).
F. Request for Reconsideration and Administrative Review
The proposed rule solicited comments on whether an opportunity for
administrative review should be provided for adverse OLAP
determinations regarding recognition
[[Page 92357]]
and accreditation, given that the prior regulation also had no such
procedures. The solicitation further inquired as to the extent to and
contexts in which such review should be provided, if it was deemed
necessary. The Department received 10 comments, which all stated
general support for an additional review process.
Five commenters supported an appeal process for denied recognition
and accreditation applications but provided no further explanation. One
commenter suggested an appeal process for disapproved recognition and
accreditation requests in order to provide additional information to
overcome the disapproval or to identify information overlooked in
requests that should have been approved. The commenter asserted that
organizations should have 45 days to submit an appeal and that the
process should be a prompt review, rather than the three or four months
that it would take to reach a determination on a re-filed request.
Similarly, a commenter stated that an appeal process for disapproved
applications should only be established if it can avoid re-filing of
requests for issues that can be fixed easily and it is less burdensome
than the initial process for requests for recognition and
accreditation. Another commenter suggested that the administrative
review or appeal process should be completed within 60 days.
Two commenters requested an administrative review process before
the Board in the administrative termination context. Both commenters
were concerned about terminations that may occur as organizations
adjust to the new requirements of this rule or due to errors in
eligibility determinations. One of these commenters recommended that
organizations retain recognition during the review process.
The final rule adopts the provisions of the proposed rule that
afford an applicant an opportunity to be heard before the issuance of a
determination on an initial or renewal application for recognition and
accreditation or a determination on administrative termination based on
deficiencies regarding the requirements for recognition or
accreditation or reporting, recordkeeping, and posting. See final rule
at 8 CFR 1292.13(a); 8 CFR 1292.16(e); 8 CFR 1292.17(b)(5), (b)(6),
(c)(6). In keeping with the spirit and purpose of this rule to maintain
and increase capacity, OLAP will take these opportunities to engage
with organizations in order to limit adverse determinations so the
concerns about adverse determinations arising from organizations being
unable to adjust to the new requirements are unlikely. Nevertheless,
the Department realizes that adverse determinations are likely to occur
and that organizations may have the ability to correct any deficiencies
that led to the adverse determination or otherwise point to an error in
the determination. For these situations, the final rule adds further
review in the form of a 30-day request for reconsideration of the OLAP
Director's final determinations at 8 CFR 1292.13(e), 1292.16(f), and
1292.17(d). The filing of a request for reconsideration automatically
stays the OLAP Director's determination until a decision issues on the
reconsideration request and allows recognized organizations and its
accredited representatives to continue to provide immigration legal
services during the reconsideration process. The reconsideration
process should provide for a faster decision-making process and avoid
the need for organizations to go through the potentially lengthy
request process anew to correct the types of simple errors or issues
raised by the commenters.
Additionally, the final rule provides that organizations whose
requests for reconsideration are denied may seek administrative review
by the Director of EOIR. See final rule at 8 CFR 1292.18. This
provision responds to concerns that OLAP would be the sole decision-
maker regarding recognition and accreditation and that another entity
should be able to review OLAP's decisions. Like with requests for
reconsideration, a request for administrative review stays the OLAP
Director's determination until a decision issues on the review request
and allows recognized organizations and their accredited
representatives to continue to provide immigration legal services
during the review process. See id. at 1292.18(a)(3).
G. Recognition and Accreditation for Practice Before DHS
As the Department stated in the proposed rule, as of the effective
date of this final rule, EOIR will apply the standards and procedures
for recognition and accreditation set forth in this rule governing
EOIR's activities, not the DHS regulations set forth in 8 CFR part 292.
In addition, DHS has informed the Department that it plans to publish a
rule relating to the same subject matter. Until DHS revises 8 CFR part
292 to conform its recognition and accreditation provisions with this
final rule, the regulations codified in this rule will govern to the
extent that they are inconsistent with those DHS regulations.
IV. Other Revisions
The final rule adds paragraph (b)(3) to 8 CFR 1003.107. This
paragraph explains the decisions the Board may make in the early
reinstatement context and was inadvertently omitted in the proposed
rule. It is substantially similar to paragraph (b)(2) in the same
section of the current regulation at 8 CFR 1003.107.
V. Notice and Comment
The revisions to the proposed rule do not require a new notice-and-
comment period. The revisions pertaining to electronic filings and
communications, at Sec. Sec. 1292.13(a), 1292.14(a), 1292.15,
1292.16(e), and 1292.17(a), (d), (e), and (f), pertain to ``agency
organization, procedure, or practice'' under 5 U.S.C. 553(b). The
Department has ``good cause'' under 5 U.S.C. 553(b)(B) to add paragraph
(b)(3) to 8 CFR 1003.107 because it is substantially similar to
paragraph (b)(2) in the same section of the current regulation. The
other provisions are logical outgrowths of those in the proposed rule.
See, e.g., Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 851-52 (9th
Cir. 2003); Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir.
1994).
VI. Regulatory Requirements
A. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, the Department
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. See 5 U.S.C. 605(b).
Currently, there are almost 1,000 recognized organizations and more
than 1,900 accredited representatives. This rule seeks to increase the
number of recognized organizations and accredited representatives that
are competent and qualified to provide immigration legal services
primarily to low-income and indigent persons. The Department, however,
cannot estimate with certainty the actual increase in the number of
recognized organizations and accredited individuals that may result
from the rule. That figure is subject to multiple external factors,
including changes in immigration law and policy and fluctuating needs
for representation and immigration legal services.
While EOIR does not keep statistics on the size of recognized
organizations, many of these organizations and their accredited
representatives may be classified as, or employed by, ``small
entities'' as defined under 5 U.S.C. 601. In particular, recognized
organizations, which are by definition non-profit entities, may also be
classified as ``small
[[Page 92358]]
organizations'' and thus, as ``small entities'' under section 601.
Although the exact number of recognized organizations that may be
classified as ``small entities'' is not known, the Department certifies
that this rule will not have a significant economic impact on a
substantial number of these entities. The rule, like the prior
regulations, does not assess any fees on an organization to apply for
initial recognition or accreditation, to renew recognition or
accreditation, or to extend recognition.
The Department, however, acknowledges that organizations may incur
some costs to apply for recognition or accreditation, renew recognition
or accreditation, or extend recognition. Based on the most recent
Bureau of Labor Statistics reports that state the median hourly wage
for lawyers is $64.17, and the average burden hours to apply for
recognition or accreditation, renew recognition or accreditation, or
extend recognition, discussed below in the Paperwork Reduction Act
section, see infra section VI.G, and in the proposed rule, the
Department estimates the costs as follows. If an organization hires a
lawyer to assist with the application process, the organization would
incur costs of approximately $128.34 to apply for initial recognition
($64.21 hour x 2 hours); $449.16 to renew recognition ($64.17 hour x 7
hours), and $128.34 to apply for or to renew accreditation ($64.21 hour
x 2 hours). For organizations that prepare their applications without a
practitioner, there is an estimated cost of $10 per hour for completing
the form (the individual's time and supplies) in lieu of the attorney
cost such that those organizations would incur costs of approximately
$20.00 to apply for initial recognition ($10.00/hour x 2 hours), $70.00
to renew recognition ($10.00/hour x 7 hours), and $20.00 to apply for
or to renew accreditation ($10.00/hour x 2 hours).
The Department also recognizes that the rule imposes a new
recordkeeping requirement on recognized organizations to compile and
maintain fee schedules, if the organization charges any fees, and
annual summaries of immigration legal services for a period of six
years. However, the Department does not believe that the recordkeeping
requirement will have a significant economic impact on recognized
organizations. The annual summaries, as modified by this final rule,
would be compiled from information already in the possession of
recognized organizations, and based on the estimates from the Paperwork
Reduction Act section below, the Department estimates that it would
cost an organization approximately $64.21 per year to have a lawyer
compile the annual summary, and $10.00 per year for a non-lawyer to do
so.\20\ Maintaining the fee schedules and annual summaries after their
creation for six years should not impose a significant economic impact
on recognized organizations because such records may be retained in the
normal course of business like other records, such as client files,
that organizations are obligated to retain for State or Federal
purposes.
---------------------------------------------------------------------------
\20\ Note that the total average burden (and cost) for renewing
recognition includes the burden (and cost) of compiling six annual
summaries of immigration legal services provided.
---------------------------------------------------------------------------
Despite the costs mentioned above, the Department notes that the
rule may economically benefit recognized organizations. The rule
eliminates the requirement that recognized organizations assess only
``nominal charges'' for their immigration legal services. The final
rule shifts the primary focus of eligibility for recognition from the
fees an organization charges its clients to an examination of whether
it is a non-profit religious, charitable, social service, or similar
organization that primarily serves low-income and indigent clients.
This change is intended to provide organizations with flexibility in
assessing fees, which should improve their financial sustainability and
their ability to serve more persons.
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 in section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 5
U.S.C. 804. As discussed in the certification under the Regulatory
Flexibility Act, organizations and representatives will not be assessed
a fee to either apply for or seek renewal of recognition and
accreditation, and the burden of seeking renewal of recognition has
been reasonably mitigated. The Department recognizes, however, that the
rule's elimination of the ``nominal charges'' restriction may affect
competition and employment in the market for legal services because a
recognized organization could charge higher fees (but less than market
rates) to clients. The rule balances the elimination of the ``nominal
charges'' restriction by also requiring that non-profit organizations
primarily serve low-income and indigent persons. Legal fees charged by
a non-profit organization are expected to be at a rate meaningfully
less than the cost of hiring competent private immigration counsel in
the same geographic area. Accordingly, 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.
D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning
and Review)
The rule is considered by the Department to be a ``significant
regulatory action'' under section 3(f)(4) of Executive Order 12866.
Accordingly, the regulation has been submitted to the Office of
Management and Budget (OMB) for review.
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 costs and benefits, reducing costs, harmonizing rules, and
promoting flexibility.
The rule seeks to address the critical and ongoing shortage of
qualified legal representation for underserved populations in
immigration cases before Federal administrative agencies. Specifically,
the rule would revise the eligibility requirements and procedures for
recognizing organizations and accrediting their representatives to
provide immigration legal services to underserved populations. To
expand the availability of such legal services, the rule permits
recognized organizations to extend their recognition and the
accreditation of their representatives to
[[Page 92359]]
multiple offices or locations and to have flexibility in charging fees
for services. The rule also imposes greater oversight over recognized
organizations and their representatives in order to protect against
potential abuse of vulnerable immigrant populations by unscrupulous
organizations and individuals.
The rule will greatly benefit organizations, DHS, EOIR, and most
importantly, persons who need legal representation in immigration
matters. The rule is expected to increase the availability of competent
and qualified legal representation in underserved areas and
particularly for indigent and low-income persons for whom there is an
ongoing and critical shortage of such representation. For example, the
elimination of the nominal fee restriction will allow organizations the
flexibility to assess fees so that organizations will be able to
sustain their operations and potentially expand them to serve more
persons. In addition, the extension of recognition and accreditation to
multiple offices or locations will permit organizations and their
representatives, through mobile or technological means, to reach
underserved persons who may currently have difficulty finding legal
representation in remote or rural locations. These two provisions will
greatly increase legal representation for persons in administrative
cases before EOIR and DHS, and in turn, will substantially aid the
administration of justice.
The rule will provide EOIR with greater tools to manage and oversee
the recognition and accreditation program. The rule requires
organizations to renew their recognition every six years and the
accreditation of their representatives every three years, and it
imposes limited reporting, recordkeeping, and posting requirements on
the organizations. The Department acknowledges that the new oversight
provisions impose some burdens on organizations. However, the burdens
on the organizations are necessary to protect vulnerable immigrant
populations from unscrupulous organizations and individuals and to
legitimize reputable organizations and representatives.
Although the renewal requirement adds a new burden on recognized
organizations, the Department has reasonably mitigated this burden. The
rule maintains the same three-year renewal period for accredited
representatives as under the current regulations and only requires
organizations to seek renewal of recognition every six years. Also, at
renewal, organizations would not be required to submit documentation
previously submitted at initial recognition or accreditation, unless
there have been changes that affect eligibility for recognition or
accreditation. Organizations would only have to submit documentation
that would support renewal of recognition and accreditation. The
information and documentation required to renew recognition and
accreditation should be in the possession of the organization in the
normal course of its operations.
The reporting requirement expands the reporting obligation of
organizations under the current regulations, which only require
organizations to report changes in the organization's name, address, or
public telephone number, or in the employment status of an accredited
representative. This final rule expands the current requirement so as
to include any changes that would affect the organization's recognition
(such as a merger), or a representative's accreditation (such as a
change in the representative's name). The reporting requirement should
not impose a significant cost to organizations because organizations
may comply with the requirement by simply contacting EOIR to report
such changes.
The recordkeeping requirement will primarily aid EOIR in evaluating
an organization's request to renew recognition. The recordkeeping
requirement requires an organization to compile fee schedules, if it
charges any fees, and annual summaries of immigration legal activities,
and maintain them for a period of six years. The recordkeeping
requirement is not unduly burdensome, as modified by the final rule,
because organizations should have such information in their possession,
and the six-year record retention requirement is consistent with the
organization's obligation to retain records, such as client files, for
State or Federal purposes.
The posting requirement will require organizations to post public
notices about the approval period of an organization's recognition and
the accreditation of its representatives, the requirements for
recognition and accreditation, and the process for filing a complaint
against a recognized organization or accredited representative. EOIR
will provide the notices to the organizations, and the organizations
should not incur any tangible costs for the minimal burden of posting
the notices. In fact, the public notices should greatly benefit
organizations because the notices will legitimize organizations and
notify the public that they are qualified to provide immigration legal
services.
As detailed above in section VI.A (``Regulatory Flexibility Act''),
and below in section VI.G (``Paperwork Reduction Act''), EOIR
anticipates that if an organization hires a lawyer to assist with the
application process, the organization will incur costs of approximately
$128.34 to apply for initial recognition, $449.16 to renew recognition,
and $128.34 to apply for or to renew accreditation. If an organization
prepares its applications on its own, the organization will incur costs
of approximately $20.00 to apply for initial recognition, $70.00 to
renew recognition, and $20.00 to apply for or to renew accreditation.
E. Executive Order 13132: Federalism
This rule may have federalism implications but, as detailed below,
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.
The rule, like the current regulations it would replace, permits
non-lawyer accredited representatives to provide immigration legal
services in administrative cases before EOIR and DHS. The provision of
immigration legal services by non-lawyers may constitute the
unauthorized practice of law under some State laws and rules
prohibiting the unauthorized practice of law. However, the Supreme
Court's decision in Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379
(1963), provides that Federal agency laws and regulations authorizing
the practice of law in administrative cases before Federal agencies
preempt conflicting State laws that would otherwise prohibit authorized
representatives from participating in those Federal administrative
cases. \21\ This principle has long been applicable with respect to
accredited representatives providing representative services in
administrative cases before EOIR and DHS.
---------------------------------------------------------------------------
\21\ Sperry held that a statute and implementing regulation
authorizing non-lawyers to practice before the Patent Office
preempted a contrary state law prohibition on the unauthorized
practice of law to the extent that the state law prohibition was
incompatible with the Federal rules. See 373 U.S. at 385.
---------------------------------------------------------------------------
Despite the preemptive effects of this rule, the federalism
implications are minimal. The rule merely updates the current, well-
established regulations permitting non-lawyer accredited
representatives to provide immigration legal services in administrative
cases before EOIR and DHS. The rule does not alter or extend the scope
of the limited authorization to provide immigration
[[Page 92360]]
legal services before Federal administrative agencies provided under
the current regulations. In addition, following Sperry, States have
expressly determined that non-lawyers providing immigration legal
services before EOIR and DHS does not constitute the unauthorized
practice of law under their State laws and rules.\22\
---------------------------------------------------------------------------
\22\ See Ariz. Rev. Stat. Ann. Sec. 12-2702(A)(4) (stating that
an accredited representative is not engaging in the unauthorized
practice of immigration law by proving immigration legal services);
N.M. Stat. Ann. Sec. 36-3-4(A)(4) (same); N.J. Stat. Ann. Sec. 2
C:21-31(d) (similar); Va. Unauthorized Practice R. 9-103 (similar);
North Carolina State Bar, Preventing Unlicensed Legal Practice,
http://www.ncbar.gov/public/upl.asp (last visited Sept. 15, 2015)
(similar).
---------------------------------------------------------------------------
Under these circumstances, 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.
F. 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.
G. Paperwork Reduction Act
The Department received two comments in relation to its requests
under the Paperwork Reduction Act (PRA) of 1995 to revise the currently
approved information collections contained in this rule: (1) The form
for non-profit religious, charitable, or social service organizations
to apply for recognition (Form EOIR-31); (2) the form for recognized
organizations to apply for accreditation of non-attorney
representatives (Form EOIR-31A); and (3) the form for filing a
complaint against an immigration practitioner (Form EOIR-44). These
information collections were previously approved by OMB under the
provisions of the PRA, and the information collections were assigned
OMB Control Numbers 1125-0012 (EOIR-31), 1125-0013 (EOIR-31A), and
1125-0007 (EOIR-44). The Department requested revisions to these
information collections based on the proposed rule regarding the R&A
program.
The two commenters addressed the estimated average time to apply
for recognition and accreditation using the Form EOIR-31 and Form EOIR-
31A. One commenter asserted that under the prior regulations it took an
organization about 10 hours to prepare a Form EOIR-31. The other
commenter stated that under the prior regulations, organizations needed
three to four hours to prepare and complete a Form EOIR-31 or a Form
EOIR-31A. The commenter acknowledged that most of the additional
documentation required under the rule was standard non-profit
documentation but that renewal of recognition under the proposed rule
would require an additional amount of time because the annual report
(in the final rule now called the summary of immigration legal services
provided) was not routinely prepared by all organizations. The
commenter estimated that the proposed annual report would take three to
four hours to prepare each year. Based on the Department's amendments
to the final rule as discussed in section III above and the two
comments discussed here, the Department has made changes to the final
Form EOIR-31 and Form EOIR-31A.
1. Request for Recognition, Renewal of Recognition, or Extension of
Recognition for a Non-Profit, Federal Tax-Exempt Religious, Charitable,
Social Service, or Similar Organization (Form EOIR-31)
The Department has modified the final Form EOIR-31 and the
instructions thereto for consistency with the changes in the final rule
regarding the requirements for recognition and renewal of recognition.
First, the final form does not require organizations to provide
information regarding whether a substantial amount of their immigration
legal services budget is from outside funding sources. Second, the
instructions have been modified to say that the form will generally be
used every six years (rather than three years) in connection with a
request to renew recognition, and that the request need not be
accompanied by a request for accreditation of a representative. Third
and finally, the final form has been amended to reflect the changes to
the annual reports required to be submitted at renewal. In the final
rule, the annual report has been renamed the summary of immigration
legal services provided. More significantly, the substance of the
summary has been modified to include information already gathered for
other purposes like funder reports or otherwise readily accessible to
the organization, such as: The total number of clients served (whether
through client intakes, applications prepared and filed with USCIS,
cases in which the organization's attorneys or accredited
representatives appeared before the Immigration Courts or, if
applicable, the Board, or referrals to attorneys or other
organizations) and clients to which it provided services at no cost; a
general description of the immigration legal services and other
immigration-related services (e.g., educational or outreach events)
provided; a statement regarding whether services were provided pro bono
or clients were charged in accordance with a fee schedule and
organizational policies or guidance regarding fee waivers and reduced
fees; and a list of the offices or locations where the immigration
legal services were provided.
The Department has determined that the estimated average time to
review the form, gather necessary materials, complete the form, and
assemble the attachments is 2 hours for initial recognition, which is
the same as the current information collection. The current Form EOIR-
31 has been in use for several years, and the Department has not
received any comments regarding the accuracy of this estimate. The
Department has now received two comments in response to the proposed
rule's revisions to the form suggesting that the time estimate may not
be accurate. However, the commenters did not specifically address the
revised form, as no individual requested it during the comment period.
Notwithstanding the comments received, the Department has kept the
estimated average total response time of 2 hours for initial
recognition because initial recognition requires the same materials as
the current information collection and the revised form provides much
improved detail and specificity that will assist organizations in
preparing and completing the form in a timely manner.
For renewal of recognition, the Department clarifies that an
organization will not be required to submit the information previously
submitted at initial recognition, unless such information has changed
since the initial recognition and it affects the organization's
recognition. Instead, an organization will only be required to complete
the form and submit fee schedules and six annual summaries of
immigration legal services provided (formerly called the annual report
in the proposed rule). The Department understands that these summaries,
though simplified under the final rule, will place some additional
burdens on organizations. Therefore, the Department has adjusted the
estimated time to account for the burdens associated with preparation
and retention of the summaries of immigration legal services provided.
The Department estimates that the average time to review the form,
gather necessary materials, complete the form, and assemble the
attachments for each application to renew recognition will be 7 hours
in total. The estimate includes
[[Page 92361]]
1 hour for review and completion of the form, and an additional 6 hours
divided over 6 years to prepare the annual summaries of immigration
legal services provided. This estimate and the one for initial
recognition are minimized by the time saved from streamlining the
recognition process to allow an organization to file a single
application for multiple locations.
2. Request by Organization for Accreditation or Renewal of
Accreditation of Non-Attorney (Form EOIR-31A)
Based on changes in the final rule, the instructions to the final
Form EOIR-31A have been modified to reflect that requests for renewal
of accreditation must be requested every three years, and that requests
for accreditation do not need to be submitted with requests for renewal
of recognition, unless the renewal dates for both are the same.
The Department finds no reason to adjust the estimated average time
to complete Form EOIR-31A, despite the comments received about the time
burden to request recognition and accreditation. The comments did not
directly address the use of the revised form, as no individual
requested the form. The comments generally concerned requests for
accreditation, which may have related to the period in which there was
no form to request accreditation. Even if the comments concerned the
current information collection, the final form is improved in clarity
and specificity such that organizations should be able to prepare and
complete the form in an expeditious manner.
3. Immigration Practitioner Complaint Form (Form EOIR-44)
The two comments received did not concern the revisions to the Form
EOIR-44, which was updated to reflect that the public may use the form
to file a complaint against a recognized organization in addition to an
immigration practitioner. Therefore, the final rule adopts the
revisions to the EOIR-44 as proposed.
List of Subjects
8 CFR Part 1001
Administrative practice and procedure, Aliens, Immigration,
Organizations and functions (Government agencies).
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organizations and functions (Government agencies).
8 CFR Part 1103
Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and recordkeeping requirements.
8 CFR Part 1212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 1292
Administrative practice and procedure, Immigration, Lawyers,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, 8 CFR parts
1001, 1003, 1103, 1212, and 1292 are amended as follows:
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.
0
2. In Sec. 1001.1, add paragraphs (x) and (y) to read as follows:
Sec. 1001.1 Definitions.
* * * * *
(x) The term OLAP means the Office of Legal Access Programs.
(y) The term OLAP Director means the Program Director of the Office
of Legal Access Programs.
* * * * *
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. 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
4. In Sec. 1003.0, revise paragraphs (a) and (e)(1), redesignate
paragraph (f) as paragraph (g), and add new paragraph (f), to read as
follows:
Sec. 1003.0 Executive Office for Immigration Review.
(a) Organization. Within the Department of Justice, there shall be
an Executive Office for Immigration Review (EOIR), headed by a Director
who is appointed by the Attorney General. The Director shall be
assisted by a Deputy Director and by a General Counsel. EOIR shall
include the Board of Immigration Appeals, the Office of the Chief
Immigration Judge, the Office of the Chief Administrative Hearing
Officer, the Office of Legal Access Programs, and such other staff as
the Attorney General or the Director may provide.
* * * * *
(e) * * *
(1) Professional standards. The General Counsel shall administer
programs to protect the integrity of immigration proceedings before
EOIR, including administering the disciplinary program for
practitioners and recognized organizations under subpart G of this
part.
* * * * *
(f) Office of Legal Access Programs and authorities of the Program
Director. Within EOIR, there shall be an Office of Legal Access
Programs (OLAP), consisting of a Program Director and such other staff
as the Director deems necessary. Subject to the supervision of the
Director, the Program Director of OLAP (the OLAP Director), or the OLAP
Director's designee, shall have the authority to:
(1) Develop and administer a system of legal orientation programs
to provide education regarding administrative procedures and legal
rights under immigration law;
(2) Develop and administer a program to recognize organizations and
accredit representatives to provide representation before the
Immigration Courts, the Board, and DHS, or DHS alone. The OLAP Director
shall determine whether an organization and its representatives meet
the eligibility requirements for recognition and accreditation in
accordance with this chapter. The OLAP Director shall also have the
authority to administratively terminate the recognition of an
organization and the accreditation of a representative and to maintain
the roster of recognized organizations and their accredited
representatives;
(3) Issue guidance and policies regarding the implementation of
OLAP's statutory and regulatory authorities; and
(4) Exercise such other authorities as the Director may provide.
* * * * *
0
5. In Sec. 1003.1, revise paragraph (b)(13), the first sentence of
paragraph (d)(2)(iii), and paragraph (d)(5) to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
[[Page 92362]]
(b) * * *
(13) Decisions of adjudicating officials in disciplinary
proceedings involving practitioners or recognized organizations as
provided in subpart G of this part.
* * * * *
(d) * * *
(2) * * *
(iii) Disciplinary consequences. The filing by a practitioner, as
defined in Sec. 1003.101(b), of an appeal that is summarily dismissed
under paragraph (d)(2)(i) of this section, may constitute frivolous
behavior under Sec. 1003.102(j). * * *
* * * * *
(5) Discipline of practitioners and recognized organizations. The
Board shall have the authority pursuant to Sec. 1003.101 et seq. to
impose sanctions upon practitioners who appear in a representative
capacity before the Board, the Immigration Courts, or DHS, and upon
recognized organizations. The Board shall also have the authority
pursuant to Sec. 1003.107 to reinstate disciplined practitioners to
appear in a representative capacity before the Board and the
Immigration Courts, or DHS, or all three authorities.
* * * * *
0
6. In Sec. 1003.101, add paragraph (c) to read as follows:
Sec. 1003.101 General provisions.
* * * * *
(c) The administrative termination of a representative's
accreditation under 8 CFR 1292.17 after the issuance of a Notice of
Intent to Discipline pursuant to Sec. 1003.105(a)(1) shall not
preclude the continuation of disciplinary proceedings and the
imposition of sanctions, unless counsel for the government moves to
withdraw the Notice of Intent to Discipline and the adjudicating
official or the Board grants the motion.
0
7. In Sec. 1003.102, revise paragraph (f)(2), remove the word ``or''
from the end of paragraph (t)(2), remove the period and add ``; or'' in
its place at the end of paragraph (u), and add paragraph (v).
The revision and addition read as follows:
Sec. 1003.102 Grounds.
* * * * *
(f) * * *
(2) Contains an assertion about the practitioner or the
practitioner's qualifications or services that cannot be substantiated.
A practitioner shall not state or imply that the practitioner has been
recognized or certified as a specialist in immigration or nationality
law unless such certification is granted by the appropriate State
regulatory authority or by an organization that has been approved by
the appropriate State regulatory authority to grant such certification.
An accredited representative shall not state or imply that the
accredited representative:
(i) Is approved to practice before the Immigration Courts or the
Board, if the representative is only approved as an accredited
representative before DHS;
(ii) Is an accredited representative for an organization other than
a recognized organization through which the representative acquired
accreditation; or
(iii) Is an attorney.
* * * * *
(v) Acts outside the scope of the representative's approved
authority as an accredited representative.
0
8. In Sec. 1003.103, revise paragraph (c) to read as follows:
Sec. 1003.103 Immediate suspension and summary disciplinary
proceedings; duty of practitioner or recognized organization to notify
EOIR of conviction or discipline.
* * * * *
(c) Duty of practitioner and recognized organizations to notify
EOIR of conviction or discipline. A practitioner and if applicable, the
authorized officer of each recognized organization with which a
practitioner is affiliated must notify the EOIR disciplinary counsel
within 30 days of the issuance of the initial order, even if an appeal
of the conviction or discipline is pending, when the practitioner has
been found guilty of, or pleaded guilty or nolo contendere to, a
serious crime, as defined in Sec. 1003.102(h), or has been disbarred
or suspended by, or while a disciplinary investigation or proceeding is
pending has resigned from, the highest court of any State, possession,
territory or Commonwealth of the United States, or the District of
Columbia, or any Federal court. A practitioner's failure to do so may
result in an immediate suspension as set forth in paragraph (a) of this
section and other final discipline. An organization's failure to do so
may result in the administrative termination of its recognition for
violating the reporting requirement under 8 CFR 1292.14. This duty to
notify applies only to convictions for serious crimes and to orders
imposing discipline for professional misconduct entered on or after
August 28, 2000.
0
9. In Sec. 1003.104, revise paragraph (b) to read as follows:
Sec. 1003.104 Filing of Complaints; preliminary inquiries;
resolutions; referrals of complaints.
* * * * *
(b) Preliminary inquiry. Upon receipt of a disciplinary complaint
or on its own initiative, the EOIR disciplinary counsel will initiate a
preliminary inquiry. If a complaint is filed by a client or former
client, the complainant thereby waives the attorney-client privilege
and any other privilege relating to the representation to the extent
necessary to conduct a preliminary inquiry and any subsequent
proceedings based thereon. If the EOIR disciplinary counsel determines
that a complaint is without merit, no further action will be taken. The
EOIR disciplinary counsel may, in the disciplinary counsel's
discretion, close a preliminary inquiry if the complainant fails to
comply with reasonable requests for assistance, information, or
documentation. The complainant and the practitioner shall be notified
of any such determination in writing.
* * * * *
0
10. In Sec. 1003.105, revise the paragraph (a) subject heading and
paragraph (a)(1), the first sentence of paragraph (c)(1), the last
sentence of paragraph (c)(2), and paragraphs (c)(3), (d)(2)
introductory text, and (d)(2)(ii) to read as follows:
Sec. 1003.105 Notice of Intent to Discipline.
(a) Issuance of Notice. (1) If, upon completion of the preliminary
inquiry, the EOIR disciplinary counsel determines that sufficient prima
facie evidence exists to warrant charging a practitioner with
professional misconduct as set forth in Sec. 1003.102 or a recognized
organization with misconduct as set forth in Sec. 1003.110, the EOIR
disciplinary counsel will file with the Board and issue to the
practitioner or organization that was the subject of the preliminary
inquiry a Notice of Intent to Discipline. In cases involving
practitioners, service of the notice will be made upon the practitioner
either by certified mail to the practitioner's last known address, as
defined in paragraph (a)(2) of this section, or by personal delivery.
In cases involving recognized organizations, service of the notice will
be made upon the authorized officer of the organization either by
certified mail at the address of the organization or by personal
delivery. The notice shall contain a statement of the charge(s), a copy
of the preliminary inquiry report, the proposed disciplinary sanctions
to be imposed, the procedure for filing an answer or requesting a
hearing, and the mailing address and telephone number of the Board. In
summary disciplinary
[[Page 92363]]
proceedings brought pursuant to Sec. 1003.103(b), a preliminary
inquiry report is not required to be filed with the Notice of Intent to
Discipline. If a Notice of Intent to Discipline is filed against an
accredited representative, the EOIR disciplinary counsel shall send a
copy of the notice to the authorized officer of the recognized
organization through which the representative is accredited at the
address of the organization.
* * * * *
(c) Answer--(1) Filing. The practitioner or, in cases involving a
recognized organization, the organization, shall file a written answer
to the Notice of Intent to Discipline with the Board within 30 days of
the date of service of the Notice of Intent to Discipline unless, on
motion to the Board, an extension of time to answer is granted for good
cause. * * *
(2) * * * The practitioner or, in cases involving a recognized
organization, the organization, may also state affirmatively special
matters of defense and may submit supporting documents, including
affidavits or statements, along with the answer.
(3) Request for hearing. The practitioner or, in cases involving a
recognized organization, the organization, shall also state in the
answer whether a hearing on the matter is requested. If no such request
is made, the opportunity for a hearing will be deemed waived.
(d) * * *
(2) Upon such a default by the practitioner or, in cases involving
a recognized organization, the organization, the counsel for the
government shall submit to the Board proof of service of the Notice of
Intent to Discipline. The practitioner or the organization shall be
precluded thereafter from requesting a hearing on the matter. The Board
shall issue a final order adopting the proposed disciplinary sanctions
in the Notice of Intent to Discipline unless to do so would foster a
tendency toward inconsistent dispositions for comparable conduct or
would otherwise be unwarranted or not in the interests of justice. With
the exception of cases in which the Board has already imposed an
immediate suspension pursuant to Sec. 1003.103 or that otherwise
involve an accredited representative or recognized organization, any
final order imposing discipline shall not become effective sooner than
15 days from the date of the order to provide the practitioner
opportunity to comply with the terms of such order, including, but not
limited to, withdrawing from any pending immigration matters and
notifying immigration clients of the imposition of any sanction. Any
final order imposing discipline against an accredited representative or
recognized organization shall become effective immediately. A
practitioner or a recognized organization may file a motion to set
aside a final order of discipline issued pursuant to this paragraph,
with service of such motion on counsel for the government, provided:
* * * * *
(ii) The practitioner's or the recognized organization's failure to
file an answer was due to exceptional circumstances (such as serious
illness of the practitioner or death of an immediate relative of the
practitioner, but not including less compelling circumstances) beyond
the control of the practitioner or the recognized organization.
0
11. In Sec. 1003.106, revise paragraph (a)(2) introductory text,
paragraphs (a)(2)(i) through (iii), paragraph (a)(3) introductory text,
and paragraphs (a)(3)(ii), (b), and (c) to read as follows:
Sec. 1003.106 Right to be heard and disposition.
(a) * * *
(2) The procedures set forth in paragraphs (b) through (d) of this
section apply to cases in which the practitioner or recognized
organization files a timely answer to the Notice of Intent to
Discipline, with the exception of cases in which the Board issues a
final order pursuant to Sec. 1003.105(d)(2) or Sec. 1003.106(a)(1).
(i) The Chief Immigration Judge shall, upon the filing of an
answer, appoint an Immigration Judge as an adjudicating official. At
the request of the Chief Immigration Judge, the Chief Administrative
Hearing Officer may appoint an Administrative Law Judge as an
adjudicating official. The Director may appoint either an Immigration
Judge or Administrative Law Judge as an adjudicating official if the
Chief Immigration Judge or the Chief Administrative Hearing Officer
does not appoint an adjudicating official or if the Director determines
it is in the interest of efficiency to do so. An Immigration Judge or
Administrative Law Judge shall not serve as the adjudicating official
in any case in which the Judge is the complainant, in any case
involving a practitioner who regularly appears before the Judge, or in
any case involving a recognized organization whose representatives
regularly appear before the Judge.
(ii) Upon the practitioner's or, in cases involving a recognized
organization, the organization's, request for a hearing, the
adjudicating official may designate the time and place of the hearing
with due regard to the location of the practitioner's practice or
residence or of the recognized organization, the convenience of
witnesses, and any other relevant factors. When designating the time
and place of a hearing, the adjudicating official shall provide for the
service of a notice of hearing, as the term ``service'' is defined in
Sec. 1003.13, on the practitioner or the authorized officer of the
recognized organization and the counsel for the government. The
practitioner or the recognized organization shall be afforded adequate
time to prepare a case in advance of the hearing. Pre-hearing
conferences may be scheduled at the discretion of the adjudicating
official in order to narrow issues, to obtain stipulations between the
parties, to exchange information voluntarily, and otherwise to simplify
and organize the proceeding. Settlement agreements reached after the
issuance of a Notice of Intent to Discipline are subject to final
approval by the adjudicating official or, if the practitioner or
organization has not filed an answer, subject to final approval by the
Board.
(iii) The practitioner or, in cases involving a recognized
organization, the organization, may be represented by counsel at no
expense to the government. Counsel for the practitioner or the
organization shall file the appropriate Notice of Entry of Appearance
(Form EOIR-27 or EOIR-28) in accordance with the procedures set forth
in this part. Each party shall have a reasonable opportunity to examine
and object to evidence presented by the other party, to present
evidence, and to cross-examine witnesses presented by the other party.
If the practitioner or the recognized organization files an answer but
does not request a hearing, then the adjudicating official shall
provide the parties an opportunity to submit briefs and evidence to
support or refute any of the charges or affirmative defenses.
* * * * *
(3) Failure to appear in proceedings. If the practitioner or, in
cases involving a recognized organization, the organization, requests a
hearing as provided in Sec. 1003.105(c)(3) but fails to appear, the
adjudicating official shall then proceed and decide the case in the
absence of the practitioner or the recognized organization in
accordance with paragraph (b) of this section, based on the available
record, including any additional evidence or arguments presented by the
counsel for the
[[Page 92364]]
government at the hearing. In such a proceeding the counsel for the
government shall submit to the adjudicating official proof of service
of the Notice of Intent to Discipline as well as the Notice of the
Hearing. The practitioner or the recognized organization shall be
precluded thereafter from participating further in the proceedings. A
final order imposing discipline issued pursuant to this paragraph shall
not be subject to further review, except that the practitioner or the
recognized organization may file a motion to set aside the order, with
service of such motion on counsel for the government, provided:
* * * * *
(ii) The practitioner's or the recognized organization's failure to
appear was due to exceptional circumstances (such as serious illness of
the practitioner or death of an immediate relative of the practitioner,
but not including less compelling circumstances) beyond the control of
the practitioner or the recognized organization.
(b) Decision. The adjudicating official shall consider the entire
record and, as soon as practicable, render a decision. If the
adjudicating official finds that one or more grounds for disciplinary
sanctions enumerated in the Notice of Intent to Discipline have been
established by clear and convincing evidence, the official shall rule
that the disciplinary sanctions set forth in the Notice of Intent to
Discipline be adopted, modified, or otherwise amended. If the
adjudicating official determines that the practitioner should be
suspended, the time period for such suspension shall be specified. If
the adjudicating official determines that the organization's
recognition should be revoked, the official may also identify the
persons affiliated with the organization who were directly involved in
the conduct that constituted the grounds for revocation. If the
adjudicating official determines that the organization's recognition
should be terminated, the official shall specify the time restriction,
if any, before the organization may submit a new request for
recognition. Any grounds for disciplinary sanctions enumerated in the
Notice of Intent to Discipline that have not been established by clear
and convincing evidence shall be dismissed. The adjudicating official
shall provide for service of a written decision or memorandum
summarizing an oral decision, as the term ``service'' is defined in
Sec. 1003.13, on the practitioner or, in cases involving a recognized
organization, on the authorized officer of the organization and on the
counsel for the government. Except as provided in paragraph (a)(2) of
this section, the adjudicating official's decision becomes final only
upon waiver of appeal or expiration of the time for appeal to the
Board, whichever comes first, and does not take effect during the
pendency of an appeal to the Board as provided in Sec. 1003.6. A final
order imposing discipline against an accredited representative or
recognized organization shall take effect immediately.
(c) Appeal. Upon issuance of a decision by the adjudicating
official, either party or both parties may appeal to the Board to
conduct a review pursuant to Sec. 1003.1(d)(3). Parties must comply
with all pertinent provisions for appeals to the Board, including
provisions relating to forms and fees, as set forth in Part 1003, and
must use Form EOIR-45. The decision of the Board is the final
administrative order as provided in Sec. 1003.1(d)(7), and shall be
served upon the practitioner or, in cases involving a recognized
organization, the organization, as provided in Sec. 1003.1(f). With
the exception of cases in which the Board has already imposed an
immediate suspension pursuant to Sec. 1003.103 or cases involving
accredited representatives or recognized organizations, any final order
imposing discipline shall not become effective sooner than 15 days from
the date of the order to provide the practitioner opportunity to comply
with the terms of such order, including, but not limited to,
withdrawing from any pending immigration matters and notifying
immigration clients of the imposition of any sanction. A final order
imposing discipline against an accredited representative or recognized
organization shall take effect immediately. A copy of the final
administrative order of the Board shall be served upon the counsel for
the government. If disciplinary sanctions are imposed against a
practitioner or a recognized organization (other than a private
censure), the Board may require that notice of such sanctions be posted
at the Board, the Immigration Courts, or DHS for the period of time
during which the sanctions are in effect, or for any other period of
time as determined by the Board.
* * * * *
0
12. In Sec. 1003.107, revise paragraphs (a) and (b), redesignate
paragraph (c) as paragraph (d), and add new paragraph (c) to read as
follows:
Sec. 1003.107 Reinstatement after disbarment or suspension.
(a) Reinstatement upon expiration of suspension. (1) Except as
provided in paragraph (c)(1) of this section, after the period of
suspension has expired, a practitioner who has been suspended and
wishes to be reinstated must file a motion to the Board requesting
reinstatement to practice before the Board and the Immigration Courts,
or DHS, or before all three authorities. The practitioner must
demonstrate by clear and convincing evidence that notwithstanding the
suspension, the practitioner otherwise meets the definition of attorney
or representative as set forth in Sec. 1001.1(f) and (j),
respectively, of this chapter. The practitioner must serve a copy of
such motion on the EOIR disciplinary counsel. In matters in which the
practitioner was ordered suspended from practice before DHS, the
practitioner must serve a copy of such motion on the DHS disciplinary
counsel.
(2) The EOIR disciplinary counsel and, in matters in which the
practitioner was ordered suspended from practice before DHS, the DHS
disciplinary counsel, may reply within 13 days of service of the motion
in the form of a written response objecting to the reinstatement on the
ground that the practitioner failed to comply with the terms of the
suspension. The response must include supporting documentation or
evidence of the petitioner's failure to comply with the terms of the
suspension. The Board, in its discretion, may afford the parties
additional time to file briefs or hold a hearing to determine if the
practitioner meets all the requirements for reinstatement.
(3) If a practitioner does not meet the definition of attorney or
representative, the Board shall deny the motion for reinstatement
without further consideration. If the practitioner failed to comply
with the terms of the suspension, the Board shall deny the motion and
indicate the circumstances under which the practitioner may apply for
reinstatement. If the practitioner meets the definition of attorney or
representative and the practitioner otherwise has complied with the
terms of the suspension, the Board shall grant the motion and reinstate
the practitioner.
(b) Early reinstatement. (1) Except as provided in paragraph (c) of
this section, a practitioner who has been disbarred or who has been
suspended for one year or more may file a petition for reinstatement
directly with the Board after one-half of the suspension period has
expired or one year has
[[Page 92365]]
passed, whichever is greater, provided that notwithstanding the
suspension, the practitioner otherwise meets the definition of attorney
or representative as set forth in Sec. 1001.1(f) and (j),
respectively, of this chapter. A copy of such a petition shall be
served on the EOIR disciplinary counsel. In matters in which the
practitioner was ordered disbarred or suspended from practice before
DHS, a copy of such petition shall be served on the DHS disciplinary
counsel.
(2) A practitioner seeking early reinstatement must demonstrate by
clear and convincing evidence that the practitioner possesses the moral
and professional qualifications required to appear before the Board,
the Immigration Courts, or DHS, and that the practitioner's
reinstatement will not be detrimental to the administration of justice.
The EOIR disciplinary counsel and, in matters in which the practitioner
was ordered disbarred or suspended from practice before DHS, the DHS
disciplinary counsel, may reply within 30 days of service of the
petition in the form of a written response to the Board, which may
include, but is not limited to, documentation or evidence of the
practitioner's failure to comply with the terms of the disbarment or
suspension or of any complaints filed against the disbarred or
suspended practitioner subsequent to the practitioner's disbarment or
suspension.
(3) If a practitioner cannot meet the definition of attorney or
representative, the Board shall deny the petition for reinstatement
without further consideration. If the petition for reinstatement is
found to be otherwise inappropriate or unwarranted, the petition shall
be denied. Any subsequent petitions for reinstatement may not be filed
before the end of one year from the date of the Board's previous denial
of reinstatement, unless the practitioner is otherwise eligible for
reinstatement under paragraph (a). If the petition for reinstatement is
determined to be timely, the practitioner meets the definition of
attorney or representative, and the petitioner has otherwise
established by the requisite standard of proof that the practitioner
possesses the qualifications set forth herein, and that reinstatement
will not be detrimental to the administration of justice, the Board
shall grant the petition and reinstate the practitioner. The Board, in
its discretion, may hold a hearing to determine if the practitioner
meets all of the requirements for reinstatement.
(c) Accredited representatives. (1) An accredited representative
who has been suspended for a period of time greater than the remaining
period of validity of the representative's accreditation at the time of
the suspension is not eligible to be reinstated under Sec. 1003.107(a)
or (b). In such circumstances, after the period of suspension has
expired, an organization may submit a new request for accreditation
pursuant to 8 CFR 1292.13 on behalf of such an individual.
(2) Disbarment. An accredited representative who has been disbarred
is permanently barred from appearing before the Board, the Immigration
Courts, or DHS as an accredited representative and cannot seek
reinstatement.
* * * * *
0
13. In Sec. 1003.108, revise paragraph (a) introductory text,
paragraphs (a)(1)(i) through (iv), and paragraph (a)(2)(v), add
paragraph (a)(3), and revise paragraph (b) to read as follows:
Sec. 1003.108 Confidentiality.
(a) Complaints and preliminary inquiries. Except as otherwise
provided by law or regulation, information concerning complaints or
preliminary inquiries is confidential. A practitioner or recognized
organization whose conduct is the subject of a complaint or preliminary
inquiry, however, may waive confidentiality, except that the EOIR
disciplinary counsel may decline to permit a waiver of confidentiality
if it is determined that an ongoing preliminary inquiry may be
substantially prejudiced by public disclosure before the filing of a
Notice of Intent to Discipline.
(1) * * *
(i) A practitioner or recognized organization has caused, or is
likely to cause, harm to client(s), the public, or the administration
of justice, such that the public or specific individuals should be
advised of the nature of the allegations. If disclosure of information
is made pursuant to this paragraph, the EOIR disciplinary counsel may
define the scope of information disseminated and may limit the
disclosure of information to specified individuals and entities;
(ii) A practitioner or recognized organization has committed
criminal acts or is under investigation by law enforcement authorities;
(iii) A practitioner or recognized organization is under
investigation by a disciplinary or regulatory authority, or has
committed acts or made omissions that may reasonably result in
investigation by such authorities;
(iv) A practitioner or recognized organization is the subject of
multiple disciplinary complaints and the EOIR disciplinary counsel has
determined not to pursue all of the complaints. The EOIR disciplinary
counsel may inform complainants whose allegations have not been pursued
of the status of any other preliminary inquiries or the manner in which
any other complaint(s) against the practitioner or recognized
organization have been resolved.
(2) * * *
(v) To the practitioner or recognized organization who is the
subject of the complaint or preliminary inquiry or the practitioner's
or recognized organization's counsel of record.
* * * * *
(3) Disclosure of information for the purpose of recognition of
organizations and accreditation of representatives. The EOIR
disciplinary counsel, in the exercise of discretion, may disclose
information concerning complaints or preliminary inquiries regarding
applicants for recognition and accreditation, recognized organizations
or their authorized officers, or accredited representatives to the OLAP
Director for any purpose related to the recognition of organizations
and accreditation of representatives.
(b) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. Resolutions reached prior to the issuance of a Notice of
Intent to Discipline, such as warning letters, admonitions, and
agreements in lieu of discipline are confidential, except that
resolutions that pertain to an accredited representative may be
disclosed to the accredited representative's organization and the OLAP
Director. However, all such resolutions may become part of the public
record if the practitioner becomes subject to a subsequent Notice of
Intent to Discipline.
* * * * *
0
14. Add Sec. Sec. 1003.110 and 1003.111 to read as follows:
Sec. 1003.110 Sanction of recognized organizations.
(a) Authority to sanction. (1) An adjudicating official or the
Board may impose disciplinary sanctions against a recognized
organization if it is in the public interest to do so. It will be in
the public interest to impose disciplinary sanctions if a recognized
organization has engaged in the conduct described in paragraph (b) of
this section. In accordance with the disciplinary proceedings set forth
in this subpart, an adjudicating official or the Board may impose the
following sanctions:
(i) Revocation, which removes the organization and its accredited
representatives from the recognition and accreditation roster and
permanently bars the organization from future recognition;
[[Page 92366]]
(ii) Termination, which removes the organization and its accredited
representatives from the recognition and accreditation roster but does
not bar the organization from future recognition. In terminating
recognition under this section, the adjudicating official or the Board
may preclude the organization from submitting a new request for
recognition under 8 CFR 1292.13 before a specified date; or
(iii) Such other disciplinary sanctions, except a suspension, as
the adjudicating official or the Board deems appropriate.
(2) The administrative termination of an organization's recognition
under 8 CFR 1292.17 after the issuance of Notice of Intent to
Discipline pursuant to Sec. 1003.105(a)(1) shall not preclude the
continuation of disciplinary proceedings and the imposition of
sanctions, unless counsel for the government moves to dismiss the
Notice of Intent to Discipline and the adjudicating official or the
Board grants the motion.
(3) The imposition of disciplinary sanctions against a recognized
organization does not result in disciplinary sanctions against that
organization's accredited representatives; disciplinary sanctions, if
any, against an organization's accredited representatives must be
imposed separately from disciplinary sanctions against the
organization. Termination or revocation of an organization's
recognition has the effect of terminating the accreditation of
representatives of that organization, but such individuals may retain
or seek accreditation through another recognized organization.
(b) Grounds. It shall be deemed to be in the public interest for an
adjudicating official or the Board to impose disciplinary sanctions
against any recognized organization that violates one or more of the
grounds specified in this paragraph, except that these grounds do not
constitute the exclusive grounds for which disciplinary sanctions may
be imposed in the public interest. A recognized organization may be
subject to disciplinary sanctions if it:
(1) Knowingly or with reckless disregard provides a false statement
or misleading information in applying for recognition or accreditation
of its representatives;
(2) Knowingly or with reckless disregard provides false or
misleading information to clients or prospective clients regarding the
scope of authority of, or the services provided by, the organization or
its accredited representatives;
(3) Fails to adequately supervise accredited representatives;
(4) Employs, receives services from, or affiliates with an
individual who performs an activity that constitutes the unauthorized
practice of law or immigration fraud; or
(5) Engages in the practice of law through staff when it does not
have an attorney or accredited representative.
(c) Joint disciplinary proceedings. The EOIR disciplinary counsel
or DHS disciplinary counsel may file a Notice of Intent to Discipline
against a recognized organization and one or more of its accredited
representatives pursuant to Sec. 1003.101 et seq. Disciplinary
proceedings conducted on such notices, if they are filed jointly with
the Board, shall be joined and referred to the same adjudicating
official pursuant to Sec. 1003.106. An adjudicating official may join
related disciplinary proceedings after the filing of a Notice of Intent
to Discipline.
Sec. 1003.111 Interim suspension.
(a) Petition for interim suspension--(1) EOIR Petition. In
conjunction with the filing of a Notice of Intent to Discipline or at
any time thereafter during disciplinary proceedings before an
adjudicating official, the EOIR disciplinary counsel may file a
petition for an interim suspension of an accredited representative.
Such suspension, if issued, precludes the representative from
practicing before the Board and the Immigration Courts during the
pendency of disciplinary proceedings and continues until the issuance
of a final order in the disciplinary proceedings.
(2) DHS Petition. In conjunction with the filing of a Notice of
Intent to Discipline or at any time thereafter during disciplinary
proceedings before an adjudicating official, the DHS disciplinary
counsel may file a petition for an interim suspension of an accredited
representative. Such suspension, if issued, precludes the
representative from practicing before DHS during the pendency of
disciplinary proceedings and continues until the issuance of a final
order in the disciplinary proceedings.
(3) Contents of the petition. In the petition, counsel for the
government must demonstrate by a preponderance of the evidence that the
accredited representative poses a substantial threat of irreparable
harm to clients or prospective clients. An accredited representative
poses a substantial threat of irreparable harm to clients or
prospective clients if the representative committed three or more acts
in violation of the grounds of discipline described at Sec. 1003.102,
when actual harm or threatened harm is demonstrated, or engages in any
other conduct that, if continued, will likely cause irreparable harm to
clients or prospective clients. Counsel for the government must serve
the petition on the accredited representative, as provided in Sec.
1003.105, and send a copy of the petition to the authorized officer of
the recognized organization at the address of the organization through
which the representative is accredited.
(4) Requests to broaden scope. The EOIR disciplinary counsel or DHS
disciplinary counsel may submit a request to broaden the scope of any
interim suspension order such that an accredited representative would
be precluded from practice before the Board, the Immigration Courts,
and DHS.
(b) Response. The accredited representative may file a written
response to the petition for interim suspension within 30 days of
service of the petition.
(c) Adjudication. Upon the expiration of the time to respond to the
petition for an interim suspension, the adjudicating official will
consider the petition for an interim suspension, the accredited
representative's response, if any, and any other evidence presented by
the parties before determining whether to issue an interim suspension.
If the adjudicating official imposes an interim suspension on the
representative, the adjudicating official may require that notice of
the interim suspension be posted at the Board and the Immigration
Courts, or DHS, or all three authorities. Upon good cause shown, the
adjudicating official may set aside an order of interim suspension when
it appears in the interest of justice to do so. If a final order in the
disciplinary proceedings includes the imposition of a period of
suspension against an accredited representative, time spent by the
representative under an interim suspension pursuant to this section may
be credited toward the period of suspension imposed under the final
order.
PART 1103--APPEALS, RECORDS, AND FEES
0
15. The authority citation for part 1103 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28
U.S.C. 509, 510.
0
16. In Sec. 1103.3, revise paragraph (a), remove and reserve paragraph
(b), and revise paragraph (c).
The revisions read as follows:
[[Page 92367]]
Sec. 1103.3 Denials, appeals, and precedent decisions.
(a) DHS regulations. The regulations pertaining to denials,
appeals, and precedent decisions of the Department of Homeland Security
are contained in 8 CFR Chapter I.
* * * * *
(c) DHS precedent decisions. The Secretary of Homeland Security, or
specific officials of the Department of Homeland Security designated by
the Secretary with the concurrence of the Attorney General, may file
with the Attorney General decisions relating to the administration of
the immigration laws of the United States for publication as precedent
in future proceedings, and upon approval of the Attorney General as to
the lawfulness of such decision, the Director of the Executive Office
for Immigration Review shall cause such decisions to be published in
the same manner as decisions of the Board and the Attorney General.
PART 1212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
17. The authority citation for part 1212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458); Title VII of Public Law 110-229.
0
18. Revise Sec. 1212.6 to read as follows:
Sec. 1212.6 Border crossing identification cards.
The regulations of the Department of Homeland Security pertaining
to border crossing identification cards can be found at 8 CFR 212.6.
PART 1292--REPRESENTATION AND APPEARANCES
0
19. Revise the authority citation for part 1292 to read as follows:
Authority: 8 U.S.C. 1103, 1362.
0
20. In part 1292, before Sec. 1292.1, add an undesignated center
heading to read ``In General''.
0
21. In Sec. 1292.1, revise paragraph (a)(4) to read as follows:
Sec. 1292.1 Representation of others.
(a) * * *
(4) Accredited representative. An individual whom EOIR has
authorized to represent immigration clients on behalf of a recognized
organization, and whose period of accreditation is current and has not
expired. A partially accredited representative is authorized to
practice solely before DHS. A fully accredited representative is
authorized to practice before DHS, and upon registration, to practice
before the Immigration Courts and the Board.
* * * * *
Sec. 1292.2 [Removed and Reserved]
0
22. Remove and reserve Sec. 1292.2.
0
23. Revise Sec. 1292.3 to read as follows:
Sec. 1292.3 Conduct for practitioners and recognized organizations--
rules and procedures.
Practitioners, as defined in Sec. 1003.101(b) of this chapter, and
recognized organizations are subject to the imposition of sanctions as
provided in 8 CFR part 1003, subpart G, Sec. 1003.101 et seq., and 8
CFR 292.3 (pertaining to practice before DHS).
0
24. Revise Sec. 1292.6 to read as follows:
Sec. 1292.6 Interpretation.
Interpretations of Sec. Sec. 1292.1 through 1292.6 will be made by
the Board, subject to the provisions of part 1003 of this chapter.
Interpretations of Sec. Sec. 1292.11 through 1292.20 will be made by
the OLAP Director.
0
25. Add Sec. Sec. 1292.11 through 1292.20, with an undesignated center
heading preceding Sec. 1292.11, to read as follows:
Sec.
* * * * *
Recognition of organizations and accreditation of non-attorney
representatives
Sec.
1292.11 Recognition of an organization.
1292.12 Accreditation of representatives.
1292.13 Applying for recognition of organizations or accreditation
of representatives.
1292.14 Reporting, recordkeeping, and posting requirements for
recognized organizations.
1292.15 Extension of recognition and accreditation to multiple
offices or locations of an organization.
1292.16 Renewal of recognition and accreditation.
1292.17 Administrative termination of recognition and accreditation.
1292.18 Administrative review of denied requests for
reconsideration.
1292.19 Complaints against recognized organizations and accredited
representatives.
1292.20 Roster of recognized organizations and accredited
representatives.
* * * * *
Recognition of Organizations and Accreditation of Non-Attorney
Representatives
Sec. 1292.11 Recognition of an organization.
(a) In general. The OLAP Director, in the exercise of discretion,
may recognize an eligible organization to provide representation
through accredited representatives who appear on behalf of clients
before the Immigration Courts, the Board, and DHS, or DHS alone. The
OLAP Director will determine whether an organization is eligible for
recognition. To be eligible for recognition, the organization must
establish that:
(1) The organization is a non-profit religious, charitable, social
service, or similar organization that provides immigration legal
services primarily to low-income and indigent clients within the United
States, and, if the organization charges fees, has a written policy for
accommodating clients unable to pay fees for immigration legal
services;
(2) The organization is a Federal tax-exempt organization
established in the United States;
(3) The organization is simultaneously applying to have at least
one employee or volunteer of the organization approved as an accredited
representative by the OLAP Director and at least one application for
accreditation is concurrently approved, unless the organization is
seeking renewal of recognition and has an accredited representative or
is seeking renewal of recognition on inactive status as described in
Sec. 1292.16(i);
(4) The organization has access to adequate knowledge, information,
and experience in all aspects of immigration law and procedure; and
(5) The organization has designated an authorized officer to act on
behalf of the organization.
(b) Proof of status as non-profit religious, charitable, social
service, or similar organization established in the United States and
service to low-income and indigent clients. The organization must
submit: A copy of its organizing documents, including a statement of
its mission or purpose; a declaration from its authorized officer
attesting that it serves primarily low-income and indigent clients; a
summary of the legal services to be provided; if it charges fees for
legal services, fee schedules and organizational policies or guidance
regarding fee waivers or reduced fees based on financial need; and its
annual budget. The organization may also submit additional
documentation to demonstrate non-profit status and service to primarily
low-income and indigent individuals, such as reports prepared for
funders or information about other free or low-cost immigration-related
services that it provides (e.g., educational or outreach events).
(c) Annual budget. The organization must submit its annual budget
for providing immigration legal services for
[[Page 92368]]
the current year and, if available, its annual budget for providing
immigration legal services for the prior year. If the annual budgets
for both the current and prior years are unavailable, the organization
must submit its projected annual budget for the upcoming year. The
annual budget should describe how the organization is funded and
include information about the organization's operating expenses and
sources of revenue for providing immigration legal services. Sources of
revenue may include, but are not limited to, grants, fees, donations,
or dues.
(d) Proof of tax-exempt status. The organization must submit a copy
of its currently valid IRS tax-exemption determination letter,
alternative documentation to establish Federal tax-exempt status, or
proof that is has applied for Federal tax-exempt status.
(e) Proof of knowledge, information, and experience. The
organization must submit: A description of the immigration legal
services that the organization seeks to offer; a description of the
legal resources to which the organization has access; an organizational
chart showing names, titles, and supervisors of immigration legal staff
members; a description of the qualifications, experience, and breadth
of immigration knowledge of these staff members, including, but not
limited to resumes, letters of recommendation, certifications, and a
list of all relevant, formal immigration-related trainings attended by
staff members; and any agreement or proof of a formal arrangement
entered into with non-staff immigration practitioners and recognized
organizations for consultations or technical legal assistance.
(f) Validity period of recognition. Recognition is valid for a
period of six years from the date of the OLAP Director's approval of
recognition, unless the organization has been granted conditional
recognition. Conditional recognition is granted to an organization that
has not been recognized previously, that has Federal tax-exempt status
pending, or that has been approved for recognition after recognition
was previously terminated pursuant to Sec. 1292.17 or 8 CFR 1003.101
et seq. Conditional recognition is valid for two years from the date of
the OLAP Director's approval of conditional recognition. Any
organization's recognition is subject to being terminated pursuant to
Sec. 1292.17 or upon the issuance of disciplinary sanctions
(termination or revocation) under 8 CFR 1003.101 et seq.
Sec. 1292.12 Accreditation of representatives.
(a) In general. Only recognized organizations, or organizations
simultaneously applying for recognition, may request accreditation of
individuals. The OLAP Director, in the exercise of discretion, may
approve accreditation of an eligible individual as a representative of
a recognized organization for either full or partial accreditation. An
individual who receives full accreditation may represent clients before
the Immigration Courts, the Board, and DHS. An individual who receives
partial accreditation may represent clients only before DHS. In the
request for accreditation, the organization must specify whether it
seeks full or partial accreditation and establish eligibility for
accreditation for the individual. To establish eligibility for
accreditation, an organization must demonstrate that the individual for
whom the organization seeks accreditation:
(1) Has the character and fitness to represent clients before the
Immigration Courts and the Board, or DHS, or before all three
authorities. Character and fitness includes, but is not limited to, an
examination of factors such as: Criminal background; prior acts
involving dishonesty, fraud, deceit, or misrepresentation; past history
of neglecting professional, financial, or legal obligations; and
current immigration status that presents an actual or perceived
conflict of interest;
(2) Is employed by or is a volunteer of the organization;
(3) Is not an attorney as defined in 8 CFR 1001.1(f);
(4) Has not resigned while a disciplinary investigation or
proceeding is pending and is not subject to any order disbarring,
suspending, enjoining, restraining, or otherwise restricting the
individual in the practice of law or representation before a court or
any administrative agency;
(5) Has not been found guilty of, or pleaded guilty or nolo
contendere to, a serious crime, as defined in 8 CFR 1003.102(h), in any
court of the United States, or of any State, possession, territory,
commonwealth, or the District of Columbia, or of a jurisdiction outside
of the United States; and
(6) Possesses broad knowledge and adequate experience in
immigration law and procedure. If an organization seeks full
accreditation for an individual, it must establish that the individual
also possesses skills essential for effective litigation.
(b) Request for accreditation. To establish that an individual
satisfies the requirements of paragraph (a) of this section, the
organization must submit a request for accreditation (Form EOIR-31A and
supporting documents). The request for accreditation must be signed by
the authorized officer and the individual to be accredited, both
attesting that the individual satisfies these requirements.
(c) Proof of knowledge and experience. To establish that the
individual satisfies the requirement in paragraph (a)(6) of this
section, the organization must submit with its request for
accreditation, at minimum: A description of the individual's
qualifications, including education and immigration law experience;
letters of recommendation from at least two persons familiar with the
individual's qualifications; and documentation of all relevant, formal
immigration-related training, including a course on the fundamentals of
immigration law, procedure, and practice. An organization must also
submit documentation that an individual for whom the organization seeks
full accreditation has formal training, education, or experience
related to trial and appellate advocacy.
(d) Validity period of accreditation. Accreditation is valid for a
period of three years from the date of the OLAP Director's approval of
accreditation, unless the organization's recognition or the
representative's accreditation is terminated pursuant to Sec. 1292.17
or the organization or the representative is subject to disciplinary
sanctions (termination, revocation, suspension, or disbarment) under 8
CFR 1003.101 et seq.
(e) Change in accreditation. An organization may request to change
the accreditation of a representative from partial to full
accreditation at any time during the validity period of accreditation
or at renewal. Such a request will be treated as a new, initial request
for full accreditation and must comply with this section.
Sec. 1292.13 Applying for recognition of organizations or
accreditation of representatives.
(a) In general. An organization applying for recognition or
accreditation of a representative must submit a request for recognition
(Form EOIR-31) or a request for accreditation (Form EOIR-31A) to the
OLAP Director with proof of service of a copy of the request on the
appropriate USCIS office(s) in the jurisdictions where the organization
offers or intends to offer immigration legal services. An organization
must submit a separate request for accreditation (Form EOIR-31A) for
each individual for whom it seeks accreditation. To determine whether
an
[[Page 92369]]
organization has established eligibility for recognition or
accreditation of a representative, the OLAP Director shall review all
information contained in the request for recognition or accreditation
and may review any publicly available information or any other
information that OLAP may obtain or possess about the organization, its
authorized officer, or the proposed representative or may have received
pursuant to paragraphs (b), (c), and (d) of this section. Unfavorable
information obtained by the OLAP Director that may be relied upon to
disapprove a recognition or accreditation request, if not previously
served on the organization, shall be disclosed to the organization, and
the organization shall be given a reasonable opportunity to respond.
Prior to determining whether to approve or disapprove a request for
recognition or accreditation, the OLAP Director may request additional
information from the organization pertaining to the eligibility
requirements for recognition or accreditation. The OLAP Director, in
writing, shall inform the organization and each USCIS office in the
jurisdictions where the organization offers or intends to offer
immigration legal services of the determination approving or
disapproving the organization's request for recognition or
accreditation of a representative. The OLAP Director may, in the
exercise of discretion, extend the deadlines provided in this section.
The OLAP Director is authorized to allow requests, notifications,
recommendations, and determinations described in this section to be
made electronically.
(b) USCIS recommendation and investigation. Within 30 days from the
date of service of the request for recognition or accreditation, the
USCIS office served with the request may submit to the OLAP Director a
recommendation for approval or disapproval of the request for
recognition or accreditation, including an explanation for the
recommendation, or may request from the OLAP Director a specified
period of additional time, generally no more than 30 days, in which to
conduct an investigation or otherwise obtain relevant information
regarding the organization, its authorized officer, or any individual
for whom the organization seeks accreditation. The OLAP Director shall
inform the organization if the OLAP Director grants a request from
USCIS for additional time to conduct an investigation, or if, in the
exercise of discretion, the OLAP Director has requested that USCIS
conduct an investigation of the organization, its authorized officer,
or any individual for whom the organization seeks accreditation. USCIS
must submit any recommendation with proof of service of a copy of the
recommendation on the organization. Within 30 days of service of an
unfavorable recommendation, the organization may file with the OLAP
Director a response to the unfavorable recommendation, along with proof
of service of a copy of such response on the USCIS office that provided
the recommendation.
(c) ICE recommendation. Upon receipt of a request for recognition
or accreditation, the OLAP Director may request a recommendation or
information from ICE in the jurisdictions where the organization offers
or intends to offer immigration legal services regarding the
organization, its authorized officer, or any individual for whom the
organization seeks accreditation. Within 30 days from the date of
receipt of the OLAP Director's request, ICE may make a recommendation
or disclose information regarding the organization, its authorized
officer, or individuals for whom the organization seeks accreditation.
ICE must submit any recommendation with proof of service of a copy of
the recommendation on the organization. Within 30 days of service of an
unfavorable recommendation, the organization may file with the OLAP
Director a response to the unfavorable recommendation, along with proof
of service of a copy of such response on the ICE office that provided
the recommendation. The OLAP Director, in writing, shall inform ICE of
the determination approving or disapproving the organization's request
for recognition or accreditation of a representative.
(d) EOIR investigation. Upon receipt of a request for recognition
or accreditation, the OLAP Director may request that the EOIR
disciplinary counsel or anti-fraud officer conduct an investigation
into the organization, its authorized officer, or any individual for
whom the organization seeks accreditation. Within 30 days from the date
of receipt of the OLAP Director's request, the EOIR disciplinary
counsel or anti-fraud officer may disclose to the OLAP Director
information, including complaints, preliminary inquiries, warning
letters, and admonitions, relating to the organization, its authorized
officer, or any individual for whom the organization seeks
accreditation.
(e) Finality of decision. The OLAP Director's determination to
approve a request for recognition or accreditation is final. An
organization whose request for recognition or accreditation was
disapproved may make one request for reconsideration of the disapproval
within 30 days of the determination. An organization whose request for
recognition or accreditation was disapproved, or whose request for
reconsideration after disapproval and, if applicable, request for
administrative review pursuant to Sec. 1292.18 was denied, may submit
a new request for recognition or accreditation at any time unless
otherwise prohibited.
Sec. 1292.14 Reporting, recordkeeping, and posting requirements for
recognized organizations.
(a) Duty to report changes. A recognized organization has a duty to
promptly notify the OLAP Director in writing or electronically of
changes in the organization's contact information, changes to any
material information the organization provided in Form EOIR-31, Form
EOIR-31A, or the documents submitted in support thereof, or changes
that otherwise materially relate to the organization's eligibility for
recognition or the eligibility for accreditation of any of the
organization's accredited representatives. These changes may include
alterations to: The organization's name, address, telephone number, Web
site address, email address, or the designation of the authorized
officer of the organization; an accredited representative's name or
employment or volunteer status with the organization; and the
organization's structure, including a merger of organizations that have
already been individually accorded recognition, or a change in non-
profit or Federal tax-exempt status.
(b) Recordkeeping. A recognized organization must compile each of
the following records in a timely manner, and retain them for a period
of six years from the date the record is created, as long as the
organization remains recognized:
(1) The organization's immigration legal services fee schedule, if
the organization charges any fees for immigration legal services, for
each office or location where such services are provided; and
(2) An annual summary of immigration legal services provided by the
organization, which includes: The total number of clients served
(whether through client intakes, applications prepared and filed with
DHS, cases in which its attorneys or accredited representatives
appeared before the Immigration Courts or, if applicable, the Board, or
referrals to attorneys or other organizations) and clients to whom it
provided services at no cost; a general
[[Page 92370]]
description of the immigration legal services and other immigration-
related services (e.g., educational or outreach events) provided; a
statement regarding whether services were provided pro bono or clients
were charged in accordance with a fee schedule and organizational
policies or guidance regarding fee waivers and reduced fees; and a list
of the offices or locations where the immigration legal services were
provided. The summary should not include any client-specific or client-
identifying information. OLAP may require the organization to submit
such records to it or DHS upon request.
(c) Posting. The OLAP Director shall have the authority to issue
public notices regarding recognition and accreditation and to require
recognized organizations and accredited representatives to post such
public notices. Information contained in the public notices shall be
limited to: The names and validity periods of a recognized organization
and its accredited representatives, the requirements for recognition
and accreditation, and the means to complain about a recognized
organization or accredited representative.
Sec. 1292.15 Extension of recognition and accreditation to multiple
offices or locations of an organization.
Upon approving an initial request for recognition or a request for
renewal of recognition, or at any other time, the OLAP Director, in the
OLAP Director's discretion, may extend the recognition of an
organization to any office or location where the organization offers
services. To request extension of recognition, an organization that is
seeking or has received recognition must submit a Form EOIR-31 that
identifies the name and address of the organization's headquarters or
designated office and the name and address of each other office or
location for which the organization seeks extension of recognition. The
organization must also provide a declaration from its authorized
officer attesting that it periodically conducts inspections of each
such office or location, exercises supervision and control over its
accredited representatives at those offices and locations, and provides
access to adequate legal resources at each such office or location.
OLAP may require an organization to seek separate recognition for an
office or location of the organization, for example, when a subordinate
office or location has distinct operations, management structure, or
funding sources from the organization's headquarters. The OLAP
Director's determination to extend recognition to the offices or
locations identified in Form EOIR-31 permits the organization's
accredited representatives to provide immigration legal services out of
those offices or locations. OLAP will post the address of each office
or location to which recognition has been extended on the roster of
recognized organizations and accredited representatives. The OLAP
Director is authorized to allow requests and determinations described
in this section to be made electronically.
Sec. 1292.16 Renewal of recognition and accreditation.
(a) In general. To retain its recognition and the accreditation of
its representatives after the conclusion of the validity period
specified in Sec. 1292.11(f) or Sec. 1292.12(d), an organization must
submit a request for renewal of its recognition or the accreditation of
its representatives (Form EOIR-31, Form EOIR-31A, and supporting
documents). In the exercise of discretion, as provided in paragraph (i)
of this section, the OLAP Director may approve an organization's
request for renewal of recognition without a currently approved
accredited representative.
(b) Timing of renewal--(1) Recognition. An organization requesting
renewal of recognition must submit the request on or before the sixth
anniversary date of the organization's last approval or renewal of
recognition or, for a conditionally recognized organization, on or
before the second anniversary of the approval date of the conditional
recognition. Any request must include proof of service of a copy of the
request on the appropriate USCIS office(s) in the jurisdictions where
the organization offers or intends to offer immigration legal services.
(2) Accreditation. An organization requesting renewal of
accreditation of its representative must submit the request on or
before the third anniversary date of the representative's last approval
or renewal of accreditation, with proof of service of a copy of the
request on the appropriate USCIS office(s) in the jurisdictions where
the organization offers or intends to offer immigration legal services.
(3) The OLAP Director, in the OLAP Director's discretion, may grant
additional time to submit a request for renewal or accept a request for
renewal filed out of time. The recognition of the organization and the
accreditation of any representatives for whom the organization timely
requests renewal shall remain valid pending the OLAP Director's
consideration of the renewal requests, except in the case of an interim
suspension pursuant to 8 CFR 1003.111.
(c) Renewal requirements--(1) Recognition. The request for renewal
of recognition must establish that the organization remains eligible
for recognition under Sec. 1292.11(a), include the records specified
in Sec. 1292.14(b) regarding fee schedules and the summary of
immigration legal services provided that the organization compiled
since the last approval of recognition, and describe any unreported
changes that impact eligibility for recognition from the date of the
last approval of recognition.
(2) Accreditation. Each request for renewal of accreditation must
establish that the individual remains eligible for accreditation under
Sec. 1292.12(a) and has continued to receive formal training in
immigration law and procedure commensurate with the services the
organization provides and the duration of the representative's
accreditation.
(d) Recommendations and investigations. Each USCIS office served
with a request for renewal of recognition or a request for renewal of
accreditation may submit to the OLAP Director a recommendation for
approval or disapproval of that request pursuant to Sec. 1292.13(b).
The OLAP Director may request a recommendation from ICE or an
investigation from the EOIR disciplinary counsel or anti-fraud officer,
pursuant to Sec. 1292.13(c) and (d).
(e) Renewal process. The OLAP Director shall review all information
contained in the requests and may review any publicly available
information or any other information that OLAP may possess about the
organization, its authorized officer, or any individual for whom the
organization seeks accreditation or renewal of accreditation or that
OLAP may have received pursuant to Sec. 1292.13(b) through (d).
Unfavorable information obtained by the OLAP Director that may be
relied upon to disapprove a recognition or accreditation request, if
not previously served on the organization, shall be disclosed to the
organization, and the organization shall be given a reasonable
opportunity to respond. Prior to determining whether to approve or
disapprove a request for renewal of recognition or accreditation, the
OLAP Director may request additional information from the organization
pertaining to the eligibility requirements for recognition or
accreditation. The OLAP Director, in writing, shall inform the
organization and the appropriate DHS office(s) in the jurisdictions
where
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the organization offers or intends to offer immigration legal services
of the determination to approve or disapprove a request for renewal of
recognition. If the OLAP Director renews recognition, the OLAP Director
shall issue a written determination approving or disapproving each
request for accreditation or renewal of accreditation. The OLAP
Director is authorized to allow requests, notifications,
recommendations, and determinations described in this section to be
made electronically.
(f) Finality of decision. The OLAP Director's determination to
approve a request to renew recognition or accreditation is final. An
organization whose request for renewal of recognition or accreditation
of its representatives has been disapproved may make one request for
reconsideration of the disapproval within 30 days of the determination.
The recognition of the organization and the accreditation of any
representatives for whom the organization timely requests
reconsideration shall remain valid pending the OLAP Director's
consideration of the reconsideration request, except in the case of an
interim suspension pursuant to 8 CFR 1003.111. An organization whose
recognition or accreditation of its representatives is terminated
because the organization's request to renew recognition or
accreditation is disapproved or whose request for reconsideration after
disapproval and, if applicable, request for administrative review
pursuant to Sec. 1292.18 was denied, may submit a new request for
recognition and accreditation at any time unless otherwise prohibited.
(g) Validity period of recognition and accreditation after renewal.
After renewal of recognition, the recognition of the organization is
valid for a period of six years from the date of the OLAP Director's
determination to renew recognition, unless the organization's
recognition is terminated pursuant to Sec. 1292.17 or the organization
is subject to disciplinary sanctions (i.e., termination or revocation)
under 8 CFR 1003.101 et seq. After renewal of accreditation, the
accreditation of a representative is valid for a period of three years
from the date of the OLAP Director's determination to renew
accreditation, unless the organization's recognition or the
representative's accreditation is terminated pursuant to Sec. 1292.17
or the organization or the representative is subject to disciplinary
sanctions (termination, revocation, suspension, or disbarment) under 8
CFR 1003.101 et seq.
(h) Organizations and representatives recognized and accredited
prior to January 18, 2017--(1) Applicability. An organization or
representative that received recognition or accreditation prior to
January 18, 2017, through the Board under former Sec. 1292.2 is
subject to the provisions of this part. Such an organization or
representative shall continue to be recognized or accredited until the
organization is required to request renewal of its recognition and
accreditation of its representatives as required by paragraphs (h)(2)
and (3) of this section and pending the OLAP Director's determination
on the organization's request for renewal if such a request is timely
made, unless the organization's recognition or the representative's
accreditation is terminated pursuant to Sec. 1292.17 or the
organization or the representative is subject to disciplinary sanctions
(termination, revocation, suspension, or disbarment) under 8 CFR
1003.101 et seq.
(2) Renewal of recognition. To retain its recognition, an
organization that received recognition prior to January 18, 2017, must
request renewal of its recognition pursuant to this section on or
before the following dates:
(i) Within 1 year of January 18, 2017, if the organization does not
have an accredited representative on the effective date of this
regulation;
(ii) Within 2 years of January 18, 2017, if the organization is not
required to submit a request for renewal at an earlier date under
paragraph (h)(2)(i) of this section, and the organization has been
recognized for more than 10 years as of the effective date of this
regulation; or
(iii) Within 3 years of January 18, 2017, if the organization is
not required to submit a request for renewal at an earlier date under
paragraph (h)(2)(i) or (ii) of this section.
(3) Renewal of accreditation. To retain the accreditation of its
representatives who were accredited prior to January 18, 2017, an
organization must request renewal of accreditation of its
representatives on or before the date that the representative's
accreditation would have expired under the prior rule.
(i) Inactive status. An organization shall be placed on inactive
status if it has no currently approved accredited representative, and
it promptly notified OLAP that it no longer has an accredited
representative, as required by Sec. 1292.14(a). An organization on
inactive status is precluded from providing immigration legal services
unless it has an attorney on staff. An organization shall be on
inactive status for two years from the date the organization is placed
on inactive status in order for the organization to apply for and have
approved the accreditation of one or more representatives. If an
organization on inactive status is subject to renewal while on inactive
status, the organization must request renewal of recognition at the
time required for renewal. The OLAP Director, in the OLAP Director's
discretion, may approve a request to renew an organization's
recognition without a currently approved accredited representative,
provided that the organization satisfies the renewal requirements under
Sec. 1292.16(c)(1) and attests that it intends to apply for and have
approved the accreditation of one or more representatives within two
years from the date of renewal. An organization renewed under such
circumstances shall be on inactive status for two years from the date
of renewal in order for the organization to apply for and have approved
the accreditation of one or more representatives. The OLAP Director, in
the OLAP Director's discretion, may grant an organization additional
time on inactive status beyond the time limits provided in this
paragraph.
Sec. 1292.17 Administrative termination of recognition and
accreditation.
(a) In general. The OLAP Director may administratively terminate an
organization's recognition or a representative's accreditation and
remove the organization or representative from the recognition and
accreditation roster. Prior to issuing a determination to
administratively terminate recognition or accreditation, the OLAP
Director may request, in writing or electronically, information from
the organization, representative, DHS, or EOIR, regarding the bases for
termination. The OLAP Director, in writing or electronically, shall
inform the organization or the representative, as applicable, of the
determination to terminate the organization's recognition or the
representative's accreditation, and the reasons for the determination.
(b) Bases for administrative termination of recognition. The bases
for termination of recognition under this section are:
(1) An organization did not submit a request to renew its
recognition at the time required for renewal;
(2) An organization's request for renewal of recognition is
disapproved or request for reconsideration after disapproval and if
applicable, request for administrative review pursuant to Sec. 1292.18
is denied;
[[Page 92372]]
(3) All of the organization's accredited representatives have been
terminated pursuant to this section or suspended or disbarred pursuant
to 8 CFR 1003.101 et seq., and the organization is not on inactive
status as described in Sec. 1292.16(i);
(4) An organization submits a written request to the OLAP Director
for termination of its recognition;
(5) An organization fails to comply with its reporting,
recordkeeping, or posting requirements under Sec. 1292.14, after being
notified of the deficiencies and having an opportunity to respond;
(6) An organization fails to maintain eligibility for recognition
under Sec. 1292.11, after being notified of the deficiencies and
having an opportunity to respond; or
(7) An organization on inactive status fails to have an individual
approved as an accredited representative within the time provided under
Sec. 1292.16(i).
(c) Bases for administrative termination of accreditation. The
bases for termination of accreditation under this section are:
(1) An individual's organization has had its recognition terminated
pursuant to this section or terminated or revoked pursuant to 8 CFR
1003.101 et seq.;
(2) An organization does not submit a request for renewal of the
individual's accreditation at the time required for renewal;
(3) An organization's request for renewal of an individual's
accreditation is disapproved or request for reconsideration after
disapproval and, if applicable, request for administrative review
pursuant to Sec. 1292.18, is denied;
(4) An accredited representative submits a written request to the
OLAP Director for termination of the representative's accreditation;
(5) An organization submits a written request to the OLAP Director
for termination of the accreditation of one or more of its
representatives; or
(6) An individual fails to maintain eligibility for accreditation
under Sec. 1292.12, after the individual's organization has been
notified of the deficiencies and has had an opportunity to respond.
(d) Request for reconsideration. An organization whose recognition
is terminated pursuant to paragraph (b)(5) or (6) of this section or
the accreditation of its representative(s) is terminated pursuant to
paragraph (c)(6) of this section may make one request for
reconsideration of the disapproval within 30 days of the determination.
The recognition of the organization and the accreditation of any
representatives for whom the organization timely requests
reconsideration shall remain valid pending the OLAP Director's
consideration of the reconsideration request. The OLAP Director is
authorized to allow requests and determinations described in this
paragraph to be made electronically.
(e) Effect of administrative termination of recognition. The OLAP
Director's determination to terminate recognition is final as of the
date of service of the administrative termination notice. Upon service
or electronic delivery of an administrative termination of recognition
notice to the organization's accredited representatives by OLAP, the
organization's representatives shall no longer be authorized to
represent clients before the Immigration Courts, the Board, or DHS on
behalf of that organization, but the notice shall not affect an
individual's accreditation through another recognized organization
unless otherwise specified. An organization whose recognition is
terminated may submit a new request for recognition at any time after
its termination unless otherwise prohibited.
(f) Effect of administrative termination of accreditation. The OLAP
Director's determination to terminate accreditation is final as of the
date of service of the administrative termination notice. Upon service
or electronic delivery of an administrative termination of
accreditation notice to an accredited representative by OLAP, the
individual shall no longer be authorized to represent clients before
the Immigration Courts, the Board, or DHS on behalf of that
organization, but the notice does not affect the individual's
accreditation through another organization unless specified in the
determination. An organization may submit a request for accreditation
on behalf of any individual whose accreditation has been terminated
unless otherwise prohibited.
Sec. 1292.18 Administrative review of denied requests for
reconsideration.
(a) Authority of the Director. The Director has the discretionary
authority to review a request for reconsideration pursuant to Sec.
1292.13(e), Sec. 1292.16(f), or Sec. 1292.17(d) that has been denied.
The Director may delegate this authority to any officer within EOIR,
except the OLAP Director.
(1) An organization whose request for reconsideration pursuant to
Sec. 1292.13(e), Sec. 1292.16(f), or Sec. 1292.17(d) has been denied
may request administrative review from the Director within ten (10)
days of the denial, identifying the alleged factual or legal errors in
the underlying determination. The request for administrative review
shall be submitted to the OLAP Director, who will forward the request
to the Director.
(2) The Director may review a request for reconsideration pursuant
to Sec. 1292.13(e), Sec. 1292.16(f), or Sec. 1292.17(d) that has
been denied on the Director's own initiative by issuing a notification
of administrative review within ten (10) days of the denial. This
notification shall state the issues to be reviewed.
(3) The recognition of the organization and the accreditation of
any representatives that are subject to administrative review as
described in this section shall remain valid pending the Director's
consideration of the request, except in the case of an interim
suspension pursuant to 8 CFR 1003.111.
(b) Review. The Director shall review the record before OLAP and
the organization's request for administrative review, and, in the
Director's discretion, may request additional filings from the
organization. The Director may affirm the denial of the request for
reconsideration or vacate the denial and return the matter to the OLAP
Director for further action consistent with the Director's
determination. The Director may not approve a request for recognition
or accreditation or renewal thereof.
Sec. 1292.19 Complaints against recognized organizations and
accredited representatives.
(a) Filing complaints. Any individual may submit a complaint to
EOIR or DHS that a recognized organization or accredited representative
has engaged in behavior that is a ground of termination or otherwise
contrary to the public interest. Complaints must be submitted in
writing or on Form EOIR-44 to the EOIR disciplinary counsel or DHS
disciplinary counsel and must state in detail the information that
supports the basis for the complaint, including, but not limited to:
The name and address of each complainant; the name and address of each
recognized organization and accredited representative that is a subject
of the complaint; the nature of the conduct or behavior; the
individuals involved; and any other relevant information. EOIR
disciplinary counsel and DHS disciplinary counsel shall notify each
other of any complaint that pertains, in whole or in part, to a matter
involving the other agency. EOIR may authorize that complaints
submitted to the EOIR disciplinary counsel may be made electronically.
(b) Preliminary inquiry. Upon receipt of the complaint, the EOIR
disciplinary counsel shall initiate a preliminary
[[Page 92373]]
inquiry. If a complaint is filed by a client or former client of a
recognized organization or any of its accredited representatives, the
complainant waives the attorney-client privilege and any other
privilege relating to the representation to the extent necessary to
conduct a preliminary inquiry and any subsequent proceedings based
thereon. If the EOIR disciplinary counsel determines that a complaint
is without merit, no further action will be taken. The EOIR
disciplinary counsel may also, in the disciplinary counsel's
discretion, dismiss a complaint if the complainant fails to comply with
reasonable requests for information or documentation. If the EOIR
disciplinary counsel determines that a complaint has merit, the EOIR
disciplinary counsel may disclose information concerning the complaint
or the preliminary inquiry to the OLAP Director pursuant to 8 CFR
1003.108(a)(3) or initiate disciplinary proceedings through the filing
of a Notice of Intent to Discipline pursuant to 8 CFR 1003.105. If a
complaint involves allegations that a recognized organization or
accredited representative engaged in criminal conduct, the EOIR
disciplinary counsel shall refer the matter to DHS or the appropriate
United States Attorney, and if appropriate, to the Inspector General,
the Federal Bureau of Investigation, or other law enforcement agency.
Sec. 1292.20 Roster of recognized organizations and accredited
representatives.
The OLAP Director shall maintain a roster of recognized
organizations and their accredited representatives. An electronic copy
of the roster shall be made available to the public and updated
periodically.
Dated: December 6, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-29726 Filed 12-16-16; 8:45 am]
BILLING CODE 4410-30-P