[Federal Register Volume 84, Number 59 (Wednesday, March 27, 2019)]
[Proposed Rules]
[Pages 11446-11448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05838]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 84, No. 59 / Wednesday, March 27, 2019 / 
Proposed Rules  

[[Page 11446]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1292

[EOIR Docket No. 18-0301; RIN 1125-AA83]


Professional Conduct for Practitioners, Scope of Representation 
and Appearances

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

ACTION: Advance notice of proposed rulemaking with request for comment.

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SUMMARY: The Department of Justice (Department) is evaluating the 
possibility of revising the rules and procedures governing 
representation and appearance during proceedings before the Executive 
Office for Immigration Review's (EOIR) immigration courts and Board of 
Immigration Appeals (BIA). The Department is considering whether to 
amend those rules to allow for, and identify the nature and scope of, 
authorized practitioners' limited representation of aliens before EOIR. 
The Department is issuing this advance notice of proposed rulemaking 
(ANPRM) to solicit public suggestions for any such potential amendments 
to the relevant portions of EOIR's regulations.

DATES: The Department invites written or electronic comments from 
members of the public submitted on or before April 26, 2019. Written 
comments postmarked on or before that date will be considered timely. 
The electronic Federal Docket Management System will accept comments 
prior to midnight Eastern Time at the end of that day.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0301 or RIN 1125-AA83, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Lauren Alder Reid, Assistant Director, Office of 
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please 
reference EOIR Docket No. 18-0301 on your correspondence. This mailing 
address may be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Lauren Alder Reid, Assistant 
Director, Office of Policy, Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact 
Telephone Number (703) 305-0289.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2616, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to submit written data, views, or 
arguments on all aspects of this ANPRM. EOIR also invites comments that 
relate to the economic, environmental, or federalism effects that might 
result from any regulatory changes related to these matters.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at 
www.regulations.gov. Such information includes personally identifiable 
information (such as a person's name, address, or any other data that 
might personally identify that individual) that the commenter 
voluntarily submits.
    If you want to submit personally identifiable information as part 
of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first 
paragraph of your comment and precisely and prominently identify the 
information of which you seek redaction.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment and precisely and prominently identify the confidential 
business information of which you seek redaction. If a comment has so 
much confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on 
www.regulations.gov. Personally identifiable information and 
confidential business information provided as set forth above will be 
placed in the agency's public docket file, but not posted online. To 
inspect the agency's public docket file in person, you must make an 
appointment with agency counsel. Please see the FOR FURTHER INFORMATION 
CONTACT paragraph above for the agency counsel's contact information 
specific to this rule.

II. Background

    The Immigration and Nationality Act (INA) provides that aliens 
appearing before an immigration judge and on appeal before the BIA 
``shall have the privilege of being represented, at no expense to the 
Government, by counsel of the alien's choosing who is authorized to 
practice in such proceedings.'' INA Sec.  240(b)(4)(A) (8 U.S.C. 
1229a(b)(4)(A)); see also INA Sec.  292 (8 U.S.C. 1362). Attorneys in 
good standing and accredited representatives approved by EOIR are 
eligible to represent respondents in EOIR proceedings, as well as 
certain other persons as provided in 8 CFR 1292.1.
    In order to represent an alien before EOIR, an attorney or 
representative must meet the regulatory requirements, including the 
filing of a Notice of Entry of Appearance as Attorney or Representative 
before the Immigration Court (Form EOIR-28) or a Notice of Entry of 
Appearance as Attorney or Representative before the Board of 
Immigration Appeals (Form EOIR-27), as appropriate. See 8 CFR 
1003.3(a)(3), 1003.17, 1003.38(g), and part 1292. Representation 
continues in the proceedings for which an attorney or representative 
enters an appearance before EOIR, whether it is front of the 
immigration court or the BIA. The representation continues until and 
unless the immigration judge or the BIA, whichever applies, grants an 
oral or written motion to withdraw or substitute. See 8 CFR 1003.17(b), 
1003.38(g), 1292.4(a).\1\
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    \1\ In 2003, the Attorney General redesignated the previous 
regulations in 8 CFR parts 3 and 292, relating to EOIR, as 8 CFR 
parts 1003 and 1292 in connection with the abolition of the former 
Immigration and Naturalization Service and the transfer of its 
responsibilities to the Department of Homeland Security. 68 FR 9824 
(Feb. 28, 2003). Under the Homeland Security Act, EOIR (including 
the BIA and the immigration courts) remains under the authority of 
the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). 8 CFR 
1292.4(a) (previously 8 CFR 292.4(a)) provides that withdrawal/
substitution of counsel before the BIA is permitted in accordance 
with 8 CFR 1003.36 (previously 8 CFR 3.36). However, 8 CFR 3.36 
(later 8 CFR 1003.36) was redesignated as 8 CFR 3.38 (later 8 CFR 
1003.38) in April 1992. See 57 FR 11568, 11570 (Apr. 6, 1992). Thus, 
the correct reference in 8 CFR 1292.4(a) should be to 8 CFR 
1003.38(g). Further, the reference to 1003.16 should be understood 
as a reference to 1003.17.

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[[Page 11447]]

    Historically, EOIR did not permit limited appearances by attorneys 
and accredited representatives. That is, prior to a regulatory change 
published in 2015, an attorney or accredited representative who entered 
an appearance on behalf of a respondent for any purpose was deemed to 
be the person's representative for purposes of all of immigration court 
or BIA proceedings for which they entered an appearance, including bond 
proceedings and removal proceedings.
    In 2015, the Department published a final rule to allow 
representatives ``to enter an appearance solely to custody and bond 
proceedings before the Immigration Court'' by amending 8 CFR 
1003.17(a). 80 FR 59500 (Oct. 1, 2015). In response to a comment 
seeking a broadening of the limited scope of representation permitted, 
the Department noted that the regulations would still require ``a 
representative of record to represent an individual in all aspects of 
each separate type of proceeding, unless the immigration judge grants a 
motion to withdraw or substitute counsel.'' 80 FR 59501. Therefore, 
when an attorney or authorized representative enters an appearance 
before an immigration court, the appearance may be entered for 
representation in ``custody or bond proceedings only, any other 
proceedings only, or for all proceedings'' before an immigration judge. 
8 CFR 1003.17(a).
    In any case appealed to the BIA, the alien may also be represented 
by an attorney or representative. See 8 U.S.C. 1362. Representation 
before the BIA continues until and unless withdrawal or substitution of 
attorney or representative is permitted. See 8 CFR 1003.38(g), 
1292.4(a).
    In addition to the foregoing regulations dealing with appearances, 
the current EOIR regulations also include definitions pertaining to 
practice. See 8 CFR 1001.1(i) and (k):

    (i) The term practice means the act or acts of any person 
appearing in any case, either in person or through the preparation 
or filing of any brief or other document, paper, application, or 
petition on behalf of another person or client before or with DHS, 
or any immigration judge, or the Board.
* * * * *
    (k) The term preparation, constituting practice, means the study 
of the facts of a case and the applicable laws, coupled with the 
giving of advice and auxiliary activities, including the incidental 
preparation of papers, but does not include the lawful functions of 
a notary public or service consisting solely of assistance in the 
completion of blank spaces on printed Service forms by one whose 
remuneration, if any, is nominal and who does not hold himself out 
as qualified in legal matters or in immigration and naturalization 
procedure.

    The Department is now considering further revision to EOIR's 
regulations governing the rules of practice and the scope of appearance 
and representation in proceedings before the immigration courts and the 
BIA.

III. Request for Public Comments

    Before proposing any specific regulatory text for public comment, 
the Department is seeking preliminary input from the public. In 
addition to soliciting suggestions and comments in responses to the 
specific questions raised in this ANPRM, the Department is particularly 
interested in hearing from all those who have a stake in providing, 
receiving, or coordinating representation in the immigration court 
system. The Department is interested in hearing all views related to 
the possibility of expanding procedures for the limited representation 
of aliens in proceedings before EOIR.
    Question 1: Should the Department permit certain types of limited 
representation currently impermissible under regulations? If so, to 
what extent? If not, why not?
    Question 2: Should limited representation be permitted to allow 
attorneys or representatives to appear at a single hearing in 
proceedings before EOIR, possibly leaving the respondent without 
representation for a subsequent hearing on the same filing? If so, to 
what extent? If not, why not?
    Question 3: Should limited representation be permitted to allow 
attorneys or representatives to prepare or file a pleading, 
application, motion, brief, or other document without providing further 
representation in the case? If not, why not? If so, should attorneys or 
representatives be required to identify themselves as the author of the 
document or should anonymity (i.e., ghostwriting) be permitted?
    Question 4: If limited representation is permitted in proceedings 
before EOIR, should an attorney or representative be required to file a 
Notice of Entry of Appearance regardless of the scope of the limited 
representation? If so, should a form separate from the EOIR-27 and 
EOIR-28 be created for such appearances?
    Question 5: If limited representation is permitted, should 
attorneys or representatives certify to EOIR, either through a form or 
filings made, that the alien has been informed about the limited scope 
of the representation?
    Question 6: If limited representation is permitted in proceedings 
before EOIR, to what extent should such attorneys or representatives 
have access to the relevant record of proceedings?
    Question 7: To what extent could different approaches for limited 
representation impair the adjudicative process or encourage abuse or 
other misconduct that adversely affects EOIR, the public, or aliens in 
proceedings, or lead to increased litigation regarding issues of 
ineffective assistance of counsel?
    Question 8: What safeguards, if any, should be implemented to 
ensure the integrity of the process associated with limited 
representation in proceedings before EOIR, and to prevent any potential 
abuse and fraud?
    Question 9: What kinds of constraints or legal concerns with 
respect to limited representation may arise under state rules of ethics 
or professional conduct for attorneys who are members of the bar in the 
various states?
    Question 10: Should EOIR provide that practitioners, as a condition 
of representing aliens in a limited manner, be required to agree to 
limit their fees in charging for their services?
    Question 11: The Department is interested in gathering other 
information or data relating to the issue of expanding limited 
appearances in EOIR proceedings. Are there any additional issues or 
information not addressed by the Department's questions that are 
important for the Department to consider? Please provide as much detail 
as possible in your response.
    Comments that will provide the most assistance to EOIR will 
reference a specific regulatory section, provide draft regulatory 
language, explain the reasons for the recommended amendment, and 
include data, information, or authority that support the recommended 
amendment.

IV. Statutory and Executive Order Review

    This ANPRM has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), The Principles of Regulation, in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,''

[[Page 11448]]

section 1(b), General Principles of Regulation, and in accordance with 
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs.'' The Department has determined that this ANPRM is a significant 
regulatory action under Executive Order 12866, section 3(f), and 
accordingly this ANPRM has been reviewed by the Office of Management 
and Budget. Pursuant to guidance issued by OMB, the requirements of 
E.O. 13771 do not apply to this ANPRM.
    This action does not propose or impose any requirements. The ANPRM 
is being published to seek information from the public regarding the 
possibility of revising the rules and procedures governing 
representation and appearance during proceedings before EOIR's 
immigration courts and the BIA. The requirements of the Regulatory 
Flexibility Act (RFA) do not apply to this action because, at this 
stage, it is an ANPRM and not a ``rule'' as defined in 5 U.S.C. 601. 
Following review of the comments received in response to this ANPRM, if 
EOIR decides to proceed with a notice of proposed rulemaking regarding 
this matter, EOIR will conduct all relevant analyses as required by 
statute or Executive Order.

    Dated: March 5, 2019.
James R. McHenry,
Director.
[FR Doc. 2019-05838 Filed 3-26-19; 8:45 am]
 BILLING CODE 4410-30-P