[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Rules and Regulations]
[Pages 56247-56259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19882]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 177 / Wednesday, September 14, 2022 / 
Rules and Regulations  

[[Page 56247]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001 and 1003

[EOIR Docket No. 22-0201; A.G. Order No. 5499-2022]
RIN 1125-AA83


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

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

ACTION: Final rule.

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SUMMARY: On March 27, 2019, the Department of Justice (the Department) 
published in the Federal Register an Advanced Notice of Proposed 
Rulemaking (ANPRM) to solicit public comments regarding whether the 
Department should allow practitioners who appear before the Executive 
Office for Immigration Review (EOIR) to engage in limited 
representation or representation of a noncitizen during only a portion 
of the case, beyond what the regulations permitted. On September 30, 
2020, after reviewing the comments to the ANPRM, the Department 
published in the Federal Register a Notice of Proposed Rulemaking 
(NPRM). The NPRM proposed to amend the regulations to allow 
practitioners the option of entering a limited appearance to assist pro 
se individuals with drafting, writing, or filing applications, 
petitions, briefs, and other documents in proceedings before EOIR, as 
opposed to requiring the practitioner to enter an appearance to become 
the ``practitioner of record'' and thereby to accept certain 
obligations and responsibilities. This final rule responds to comments 
received in response to the NPRM and adopts the proposed rule with 
changes as described below. Specifically, this final rule permits 
practitioners to provide document assistance to pro se individuals by 
entering a limited appearance through new Forms EOIR-60 or EOIR-61, 
without requiring the practitioner to become the practitioner of record 
or to submit a motion to withdraw or substitute after completing the 
document assistance.

DATES: This rule is effective November 14, 2022.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Background

    The Immigration and Nationality Act (INA) provides that noncitizens 
appearing before an immigration judge ``shall have the privilege of 
being represented, at no expense to the Government, by counsel of the 
[noncitizen]'s choosing who is authorized to practice in such 
proceedings.'' INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA 
292, 8 U.S.C. 1362 (``In any removal proceedings before an immigration 
judge . . . the person concerned shall have the privilege of being 
represented (at no expense to the Government) by such counsel . . . as 
[the person concerned] shall choose.''); 8 CFR 1003.16(b) (``The 
[noncitizen] may be represented in proceedings before an Immigration 
Judge by an attorney or other representative of [the person 
concerned's] choice in accordance with 8 CFR part 1292, at no expense 
to the government.'').
    The Department has promulgated regulations that establish rules of 
procedure before the immigration courts and the Board of Immigration 
Appeals (BIA), including rules specifying who is authorized to provide 
representation and standards of professional conduct governing those 
authorized to provide representation. See 8 CFR Subpart A (BIA rules of 
procedure); 8 CFR Subpart C (immigration court rules of procedure); 8 
CFR Subpart G (rules of professional conduct for practitioners); 8 CFR 
1292.1 (describing individuals authorized to provide representation 
before EOIR). Under those regulations, individuals authorized to 
provide representation--i.e., attorneys, law students, law graduates, 
reputable individuals, accredited representatives, and accredited 
officials--are known as ``practitioners.'' 8 CFR 1003.101(b); see also 
8 CFR 1292.1. In order to become the ``practitioner of record,'' which 
authorizes and requires the practitioner to appear before EOIR on 
behalf of the respondent, file all documents on behalf of the 
respondent, and accept service of process of all documents filed in the 
proceedings, practitioners must file a Notice of Entry of Appearance as 
Attorney or Representative Before the Board of Immigration Appeals 
(Form EOIR-27) or a Notice of Entry of Appearance as Attorney or 
Representative Before the Immigration Court (Form EOIR-28). 8 CFR 
1003.3(a)(3), 1003.17(a), 1003.38(g), 1292.4(a). When a practitioner 
enters an appearance using these forms, that individual is the 
practitioner of record in the case for which the appearance form was 
filed, unless and until the immigration judge or the BIA grants a 
motion to withdraw or substitute. 8 CFR 1003.17(a)(3), 1003.38(g)(3), 
1292.4(a).
    Prior to a 2015 final rule, an entry of appearance in immigration 
court through the filing of a Form EOIR-28 required a practitioner to 
represent a noncitizen in all proceedings before the immigration court, 
including removal and bond proceedings if the noncitizen was 
detained.\1\ See Separate Representation for Custody and Bond 
Proceedings, 80 FR 59500 (Oct. 1, 2015). The 2015 final rule allowed 
practitioners to enter an appearance to represent a noncitizen in 
``custody or bond proceedings only, any other proceedings only, or for 
all proceedings.'' 8 CFR 1003.17(a). In sum, a practitioner can enter 
an appearance to be a practitioner of record in one of three 
capacities: (1) all proceedings, to include removal, deportation, 
exclusion, credible and reasonable fear, or any other proceeding type, 
and custody or bond; (2) custody or bond proceedings only; or (3) all 
proceedings other than custody and bond proceedings. A practitioner who 
enters an appearance in one of the three capacities becomes

[[Page 56248]]

the practitioner of record for the designated proceeding(s). That 
practitioner then has certain obligations and responsibilities, 
including completing written filings, making appearances in court, and 
accepting service of documents, unless and until the immigration judge 
permits withdrawal or substitution of counsel. See 8 CFR 1003.17(b). 
Separate appearances in custody and non-custody proceedings are 
permitted under that final rule, and this rule does not alter that. As 
has been the case since 2015, a noncitizen remains ``pro se'' in any 
type of proceeding in which a practitioner has not entered an 
appearance to be the practitioner of record. For example, if a 
practitioner entered an appearance to be practitioner of record in 
custody or bond proceedings only, the noncitizen would remain ``pro 
se'' in all proceedings other than custody or bond proceedings. See 80 
FR at 59500 (authorizing a practitioner to enter an appearance solely 
for custody or bond proceedings before the immigration court, such that 
noncitizen would appear pro se for all other proceedings if no 
practitioner has entered an appearance for those other proceedings).
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    \1\ The 2015 amendment did not alter the rules for entering an 
appearance before the BIA. A separate entry of appearance was 
already required when an appeal was filed with the BIA from a 
decision of an immigration judge or a District Director decision. 
See 8 CFR 1003.38(g).
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    For many years, members of the public have requested that the 
Department modify EOIR's regulations to allow practitioners to engage 
in limited appearances before EOIR on behalf of pro se noncitizens, 
without the practitioner being obligated to become the practitioner of 
record and represent the noncitizen for the entire proceeding, so that 
the practitioner could provide in-person representation for a discrete, 
limited part of a proceeding or draft forms or applications beyond what 
is already permitted by separate appearances as discussed above. See, 
e.g., 84 FR at 11447 (referencing ``a comment seeking a broadening of 
the limited scope of representation permitted''). Commenters in support 
of allowing such limited appearances contended that doing so would 
enable practitioners to provide legal services to a greater number of 
noncitizens in immigration proceedings and thereby improve the 
efficiency of immigration proceedings. Specifically, the commenters 
indicated that the greatest benefit of a limited appearance mechanism 
would be to permit practitioners to provide pro se noncitizens with 
assistance in the preparation, drafting, and filing of documents, 
without obligating those practitioners to become the practitioners of 
record, as is required under the current regulations.
    The Department agrees and acknowledges the importance of allowing 
practitioners to limit their appearance to document assistance to 
enhance the efficiency and fairness of immigration proceedings. After 
consideration, the Department has determined that permitting limited 
appearances to provide document assistance to pro se noncitizens would 
be beneficial because it would give practitioners greater flexibility 
to assist noncitizens appearing pro se before EOIR, provide increased 
access to competent legal services for noncitizens in immigration 
proceedings, and aid EOIR in adjudicating cases of pro se noncitizens 
who receive document assistance from practitioners. The new rule does 
not allow limited appearances for in-person representation, beyond what 
is already permitted under separate appearances as described above. See 
80 FR at 59500-01; see also Matter of Velasquez, 19 I&N Dec. 377, 384 
(BIA 1986).\2\
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    \2\ This final rule supersedes the statement in Matter of 
Velasquez that ``there is no `limited' appearance of counsel in 
immigration proceedings,'' 19 I&N Dec. at 384, because this rule 
amends the regulation that Matter of Velasquez relied upon.
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II. Summary of Changes

    The final rule expands the circumstances in which practitioners may 
assist noncitizens in proceedings before an immigration court and the 
BIA by allowing practitioners to enter limited appearances--without 
further obligations or responsibilities to the immigration court, the 
BIA, or the noncitizen--when only providing assistance with documents 
filed in those proceedings. The rule clarifies when practitioners must 
file an appearance and the effect of the entry of a particular 
appearance. There is no change to the mechanism that causes a 
practitioner to become the ``practitioner of record,'' which authorizes 
and requires the practitioner to appear before EOIR on behalf of the 
respondent, file all documents on behalf of the respondent, and accept 
service of process of all documents filed in the proceedings. A 
practitioner becomes a practitioner of record only by entering an 
appearance using a Form EOIR-27 or Form EOIR-28. Under this rule, 
practitioners may also choose to enter a limited appearance on a Form 
EOIR-60 or EOIR-61 when only providing document assistance to pro se 
noncitizens. Such a limited appearance does not restrict practitioners 
from later filing a Form EOIR-27 or EOIR-28 to enter an appearance as 
the practitioner of record.
    ``Document assistance'' is the drafting, completing, or filling in 
of blank spaces of a specific motion, brief, form, or other document or 
set of documents intended to be filed with the immigration court or 
BIA. If they are not otherwise the practitioner of record, 
practitioners who engage in document assistance must disclose such 
assistance by entering a limited appearance. To facilitate this 
process, EOIR has created two new entry of appearance forms: Form EOIR-
60 (Notice of Entry of Limited Appearance for Document Assistance 
Before the Board of Immigration Appeals) and Form EOIR-61 (Notice of 
Entry of Limited Appearance for Document Assistance Before the 
Immigration Court). In addition, practitioners must identify themselves 
on the documents with which they assisted and complete the preparer 
section on forms with which they assisted.
    Unlike an entry of appearance to become the practitioner of record 
through the filing of a Form EOIR-27 or EOIR-28, the entry of a limited 
appearance for document assistance pursuant to a Form EOIR-60 or EOIR-
61 does not impose any continuing obligations to the noncitizen, the 
immigration court, or the BIA on the part of the practitioner. See 8 
CFR 1003.17(b)(2), 1003.38(g)(2)(ii). Practitioners who enter a limited 
appearance do not become the practitioner of record and, as such, do 
not have the authorization, obligation, or responsibility to appear on 
behalf of the noncitizen, to otherwise represent the noncitizen before 
the immigration court or the BIA, or to move to substitute or withdraw 
from the proceeding. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii). A 
noncitizen who receives only document assistance from a practitioner 
remains pro se unless and until a practitioner files a Form EOIR-27 or 
EOIR-28 to become the practitioner of record. See 8 CFR 1003.17(b)(2), 
1003.38(g)(2)(ii). Indeed, only when a practitioner enters an 
appearance via an EOIR-27 or EOIR-28 and becomes the practitioner of 
record will the practitioner receive notice of a noncitizen's upcoming 
hearings, be sent filings in the case and be permitted access to the 
case file and appear in person on the noncitizen's behalf.
    As explained infra, the final rule amends the definitions of 
``practice'' and ``preparation'' in order to provide greater clarity 
and specificity to those terms. Further, the final rule clarifies the 
duty to enter an appearance and any disciplinary consequences 
associated with failing to enter the proper appearance, whether through 
a Form

[[Page 56249]]

EOIR-27, EOIR-28, EOIR-60, or EOIR-61, are not determined by whether 
the practitioner is engaging in ``practice'' or is engaging in 
``preparation.'' Practitioners enter an appearance through Form EOIR-27 
or Form EOIR-28 when they seek to become the practitioner of record and 
to take on the responsibilities and obligations attendant to that 
status. Practitioners enter a limited appearance through Form EOIR-60 
or Form EOIR-61 when they only assist with documents intended to be 
filed with EOIR, regardless of whether the practitioners' work related 
to those documents constitutes ``practice'' or ``preparation.''
    As noted below and as was already the case, all practitioner 
conduct--not just conduct that requires a practitioner to enter an 
appearance as the attorney of record--may be subject to EOIR's 
disciplinary rules. See 8 CFR 1003.101(b); 8 CFR 1003.102. Accordingly, 
practitioners who provide assistance that requires an appearance on 
Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 are subject to EOIR's Rules 
of Professional Conduct. The final rule amends the disciplinary rules 
to amend practitioners' obligations to enter an appearance on the 
appropriate Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 and obligations 
regarding the drafting and signing of documents. Such amendments are 
discussed further below.
    Given that only ``practitioners'' may enter an appearance before 
EOIR, the changes made in this final rule regarding the circumstances 
in which a practitioner must enter an appearance do not apply to non-
practitioners. Non-practitioners continue to be permitted to assist 
noncitizens with the ``preparation'' of documents, which consists 
solely of filling in blank spaces on printed forms with information 
provided by the applicant or petitioner that are to be filed with or 
submitted to EOIR, only where such acts do not include the exercise of 
professional judgment to provide legal advice or legal services.\3\
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    \3\ Some commenters raised the concern that this rulemaking will 
not achieve the Department's goals of preventing fraud by 
individuals not authorized to practice immigration law if EOIR's 
appearance and disciplinary rules only apply to practitioners. While 
the disciplinary rules have always only applied to practitioners, 
complaints of non-practitioner fraud will continue to be 
investigated by EOIR's Fraud and Abuse Prevention Program. See EOIR, 
Fraud and Abuse Prevention Program, available at https://www.justice.gov/eoir/fraud-and-abuse-prevention-program (last 
updated Mar. 4, 2020). Additionally, permitting limited appearances 
for document assistance will likely increase the capacity of 
practitioners that will be able to assist noncitizens and as such, 
noncitizens will likely be less inclined to seek out the services of 
non-practitioners who may be acting unscrupulously and should be 
solely limited to ``preparation'' of documents.
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    In summary, the final rule establishes or reaffirms that 
practitioners: (1) must enter an appearance on Form EOIR-27 or Form 
EOIR-28 to become the practitioner of record and thereby be authorized 
and required to appear for hearings or arguments on behalf of a 
noncitizen before the immigration courts or the BIA, to file documents 
on behalf of a noncitizen, and to accept service of process on behalf 
of a noncitizen of all documents filed in a proceeding; (2) must enter 
a limited appearance on Form EOIR-60 or Form EOIR-61 when they provide 
document assistance to a pro se noncitizen, regardless of whether the 
assistance involves ``practice'' (i.e., factual or legal analysis in 
drafting or completion of a document) or simply ``preparation'' (i.e., 
filling in the blank spaces of a pre-printed form with information 
provided by the noncitizen); and (3) are not required to enter an 
appearance as described above when solely providing legal advice or 
engaging in a legal consultation pertaining to a noncitizen but not 
assisting with documents or appearing before EOIR on behalf of the 
noncitizen, even though such conduct constitutes ``practice.'' The 
final rule also reaffirms that non-practitioners cannot file an 
appearance or engage in ``practice'' under any circumstances and are 
limited to engaging in ``preparation.''

III. Comments and Responses

    The comment period for the NPRM closed on October 30, 2020. The 
Department received 41 comments. Non-governmental organizations, legal 
advocacy groups, non-profit organizations, and religious organizations 
submitted the majority of these comments, and individual commenters 
submitted the remainder. The Department provided an additional 60-day 
notice and comment period for the proposed Notices of Entry of Limited 
Appearance for Document Assistance, Forms EOIR-60 and EOIR-61. See 
Agency Information Collection Activities; Proposed Collection; Comments 
Requested; Notice of Entry of Limited Appearance for Document 
Assistance Before the Board of Immigration Appeals; and Notice of Entry 
of Limited Appearance for Document Assistance Before the Immigration 
Court, 86 FR 48443 (Aug. 30, 2021). No comments were received during 
that comment period. Both in response to the results of the public 
solicitations for comments and as the result of further consideration, 
the Department has revised the proposed rule as discussed below.
    Below, the Department has summarized the comments and explained the 
changes the Department has made in response. The comments are addressed 
by topic rather than by reference to a specific commenter to prevent 
confusion due to overlapping comments and multiple subjects raised in 
some of the submissions.
    Some commenters asserted that the rule did not adequately explain 
the goals and reasons for the proposed changes, why the Department was 
departing from existing practice of prohibiting limited appearances, 
that the revised definitions of ``practice'' and ``preparation'' were 
arbitrary and capricious, as well as vague, and that the Department did 
not consider the effect of the rule on various service-provider 
programs. They stated that these concerns rise to a violation of the 
Administrative Procedure Act (APA) and the U.S. Constitution. The 
Department believes that the reasoning for the proposed changes was 
sufficiently set forth in both the ANPRM and NPRM, and that the NPRM 
adequately addressed these issues as well as the rule's expected impact 
on the public. Nevertheless, the Department provides further 
explanation and clarification to address these concerns herein.

A. Entering an Appearance

    The Department received many comments expressing confusion or 
demonstrating a lack of clarity in the proposed rule as to when the 
proposed rule would require filing an entry of appearance. The comments 
reflected confusion about the scope of the definitions of ``practice,'' 
``preparation,'' and ``representation''; the effect of filling out a 
form's ``preparer section'' on the obligation to enter an appearance; 
and the obligations, if any, of practitioners after the practitioner 
finishes providing document assistance.
    Additionally, the Department received many comments that the 
proposed definitions of ``practice,'' ``preparation,'' and 
``representation'' as defined in the NPRM could be interpreted by 
practitioners to create additional barriers to representation and have 
the overall effect of providing fewer noncitizens with legal assistance 
in immigration proceedings.\4\

[[Page 56250]]

Specifically, commenters stated that the NPRM drastically expands the 
``practice'' definition to include nearly any interactions 
practitioners have with pro se noncitizens because typically all 
interactions between practitioners and pro se noncitizens include 
provision of legal advice or the exercise of legal judgment. The 
proposed rule defined ``representation'' as including any form of 
``practice'' because it stated in its text that ``representation before 
EOIR includes practice.'' See Professional Conduct for Practitioners--
Rules and Procedures, and Representation and Appearances, 85 FR 61640, 
61651 (Sept. 30, 2020) (emphasis in original). Commenters expressed 
concern that this expanded definition could discourage representation 
because any form of ``practice''--including the provision of legal 
advice that does not include document assistance--would require the 
entry of an appearance and thereby diminish the opportunity for pro se 
noncitizens to receive legal assistance or advice. Commenters alleged 
that nonprofit providers in particular, who already have limited 
resources, would limit the scope of their services so as not to engage 
in ``representation.''
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    \4\ One commenter recommended that the Department pursue 
universal federally funded representation in immigration proceedings 
in lieu of this rule and to combat such potential chilling effect on 
representation. This recommendation is beyond the Department's scope 
of rulemaking authority under current law.
---------------------------------------------------------------------------

    Considering these comments and the concerns raised, the Department 
has amended the regulatory provisions related to entry of appearances 
before the immigration courts and the BIA, see 8 CFR 1003.17, 
1003.38(g), as well as the definitions of ``practice'' and 
``preparation,'' see 8 CFR 1001.1(i), (k). The final rule eliminates 
the reference to ``represented'' at 8 CFR 1003.17(a) and 1003.38(g) and 
does not otherwise rely on the definitions of ``representation'' or 
``practice'' to determine when an entry of appearance pursuant to a 
Form EOIR-27 or Form EOIR-28 is required, as the proposed rule did. 
Given the changes the final rule makes to the entry of appearance 
regulations, the Department has determined that revisions to the 
existing definition of ``representation'' at 1001.1(m) are not needed. 
See 8 CFR 1001.1(m) (``The term representation . . . includes practice 
and preparation as defined in paragraphs (i) and (k) of this 
section''). The definition will remain unchanged because 
``representation'' is a term used elsewhere in the EOIR regulations, 
namely, the rules of professional conduct and the rules governing who 
can provide representation. See 8 CFR 1003.102(o) (disciplinary 
sanctions may be imposed if a practitioner ``[f]ails to provide 
competent representation,'' which ``requires the legal knowledge, 
skill, thoroughness, and preparation reasonably necessary for the 
representation''); 8 CFR 1292.1 (defining who is authorized to provide 
representation). The changes in this final rule are intended to clarify 
that practitioners may provide legal advice (i.e., engage in certain 
forms of ``practice''), including, for example, engaging in 
consultations with unrepresented noncitizens at a self-help clinic or 
legal orientation program, without creating an obligation to enter a 
full appearance as practitioner of record or otherwise represent the 
noncitizen in proceedings before EOIR.
    The final rule requires an entry of appearance in two 
circumstances: (1) when a practitioner wants to become the practitioner 
of record, which authorizes and requires the practitioner to appear 
before EOIR on behalf of the respondent, file all documents on behalf 
of the respondent, and accept service of process of all documents filed 
in the proceedings,\5\ 8 CFR 1003.17(a), 1003.38(g)(1); and, (2) when a 
practitioner provides document assistance only and does not want to 
become the practitioner of record, 8 CFR 1003.17(b), 1003.38(g)(2). 
Practitioners who want to become a practitioner of record must enter an 
appearance on either Form EOIR-27 or Form EOIR-28. See 1003.17(a), 
1003.38(g). Practitioners who only provide document assistance and do 
not want to become the practitioner of record must enter a limited 
appearance for document assistance on Form EOIR-60 or Form EOIR-61. See 
1003.17(b). Practitioners can provide document assistance to pro se 
noncitizens by drafting, completing, or filling in of blank spaces of a 
specific motion, brief, form, or other document or set of documents 
intended to be filed with EOIR. In order to avoid any confusion as to 
what kinds of document assistance require the filing of a limited 
appearance form, when practitioners engage in any document assistance 
for pro se noncitizens, they must complete a Form EOIR-60 or Form EOIR-
61, regardless of whether the practitioners' conduct with respect to 
the documents constitutes ``practice'' or ``preparation.''
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    \5\ In immigration court proceedings, a practitioner can enter 
an appearance and become the practitioner of record for ``custody or 
bond proceedings only, any other proceedings only, or for all 
proceedings.'' 8 CFR 1003.17(a).
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1. Entry of Appearance as Practitioner of Record
    Under the current rules, it is unclear whether it is the 
practitioner or some other triggering event, such as engaging in 
``practice'' or ``preparation,'' that determines when an entry of 
appearance is required. While the final rule makes no changes to the 
actions practitioners take to become the practitioner of record--
namely, the requirement to enter an appearance on Form EOIR-27 or Form 
EOIR-28--it does remove any reference to ``represented'' in order to 
eliminate any perception that all acts constituting ``practice,'' 
``preparation,'' or ``representation'' determine the entry of such 
appearance. The final rule revises 1003.17(a) and 1003.38(g) to make 
clear that practitioners become practitioners of record, regardless of 
whether they are engaging in ``practice'' or ``preparation'' or 
otherwise meeting the definition of ``representation,'' when they seek 
authorization to and wish to take on the responsibilities and 
obligations of that role, which includes appearing at hearings, filing 
documents on behalf of a noncitizen, and accepting service on behalf of 
a noncitizen. Practitioners are not authorized to engage in these 
activities or have these obligations unless they have entered an 
appearance on Form EOIR-27 or Form EOIR-28.
2. Entry of Limited Appearance for Document Assistance
    When a practitioner's services to a pro se noncitizen are limited 
to document assistance, and they are not practitioner of record before 
the immigration court or the BIA, practitioners are required to enter a 
limited appearance on Form EOIR-60 or Form EOIR-61. See generally 8 CFR 
1003.17(b), 1003.38(g)(2). ``Document assistance'' is described at 
1003.17(b) (and in 1003.38(g)(2) with some minor variation) as 
``assistance to a pro se respondent with the drafting, completion, or 
filling in of blank spaces of a specific motion, brief, form, or other 
document or set of documents intended to be filed'' with the 
immigration court or BIA. Regardless of whether the practitioners' 
document assistance constitutes ``practice'' or ``preparation,'' 
practitioners must complete the applicable entry of appearance form for 
a limited appearance when they provide any document assistance. See id. 
While discussing available forms of relief based on a particular 
noncitizen's circumstances and providing legal advice about how to 
complete an application for relief to be filed at an immigration court 
constitute ``practice,'' such actions would not necessarily constitute 
document assistance unless the practitioner also assisted with 
drafting, completion, or filling in the applications for relief. In 
addition to submitting the Form EOIR-60 or Form EOIR-61, practitioners 
who have

[[Page 56251]]

engaged in document assistance are required to complete the ``preparer 
section'' of any form for which assistance was provided and to disclose 
that they drafted a document, such as a motion or brief, by placing 
their name and signature on the document. 8 CFR 1003.17(c), 
1003.38(g)(3). A limited appearance form is only required when 
providing document assistance to a pro se noncitizen, and it is not 
required of the practitioner of record who has already submitted a Form 
EOIR-27 or EOIR-28.
3. Scope of Conduct: ``Practice'' and ``Preparation''
    As described above, the Department received many comments 
expressing concern that the proposed rule's definitions of ``practice'' 
and ``preparation'' could dissuade practitioners from entering 
appearances to assist pro se noncitizens. The Department acknowledges 
that the NPRM's definitions of ``practice'' and ``preparation,'' when 
read in conjunction with the NPRM's requirements for entry of an 
appearance, had the unintended consequence of causing confusion about 
the type of conduct that requires an entry of appearance, for both 
limited appearances for document assistance and to become the 
practitioner of record, whether for removal proceedings, custody 
proceedings, or both. Therefore, the final rule does not rely on these 
definitions for determining when an entry of appearance is required for 
either a limited appearance or to become the practitioner of record. 
See, e.g., 8 CFR 1003.17(a), (b). Nonetheless, the final rule clarifies 
and simplifies the definitions of ``practice'' and ``preparation'' 
because these definitions explain the kind of conduct in which only 
practitioners can engage (i.e., practice), and the kind of conduct in 
which both practitioners and non-practitioners can engage (i.e., 
preparation). Despite the difference between the terms, the Department 
makes clear in the final rule that practitioners who engage in any 
document assistance, whether ``practice'' or ``preparation,'' must 
complete a Form EOIR-60 or EOIR-61. See 1003.17(b), 1003.38(g)(2).
a. ``Practice''
    Commenters voiced concern with the NPRM's definition of 
``practice'' and the interaction of that definition with the proposed 
rule's entry of appearance requirements. They expressed concern that 
the terms ``exercise of legal judgment'' and ``legal advice'' in the 
NPRM's definition of ``practice'' indicated that nearly any action a 
practitioner takes on behalf of a noncitizen would require an entry of 
appearance. Specifically, they indicated that this broad definition of 
``practice'' could cause any form of education, orientation, or 
discussion with a pro se noncitizen to be considered ``practice'' and 
to trigger the obligation to file an entry of appearance. They also 
asserted that some conduct that was described as ``practice'' should 
not require entry of an appearance.\6\
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    \6\ For example, some commenters expressed apprehension that the 
proposed rule would end ``Friend of the Court'' programs, in which 
participants assist the immigration court in person without entering 
an appearance by providing information about particular noncitizens. 
Contrary to this claim, the final rule does not affect the ability 
of a person to appear as amicus curiae in immigration proceedings 
because amicus curiae appear as an aid to the court and not as a 
practitioner. See EOIR Director's Memorandum 22-06, Friend of the 
Court, May 5, 2022, available at https://www.justice.gov/eoir/page/file/1503696/download.
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    As described above, although some actions constituting ``practice'' 
may require the entry of an appearance, the final rule does not rely on 
the definition of ``practice'' in determining when an appearance must 
be filed. The final rule revises 1003.17(a) and 1003.38(g) to make 
clear that practitioners become the practitioners of record, pursuant 
to the filing of a Form EOIR-27 or Form EOIR-28, when they seek 
authorization to take on the responsibilities and obligations of that 
role, which includes appearing at hearings, filing documents on behalf 
of a noncitizen, and accepting service on behalf of a noncitizen. The 
final rule further clarifies that the entry of a limited appearance 
pursuant to the filing of a Form EOIR-60 or EOIR-61 is required only 
when a practitioner is engaged in document assistance--described in 
1003.17(b) as ``assistance to a pro se respondent with the drafting, 
completion, or filling in of blank spaces of a specific motion, brief, 
form, or other document or set of documents intended to be filed''--
with the immigration court or BIA. Thus, a limited appearance must 
accompany any document assistance provided by a practitioner that is at 
least ``preparation,'' regardless of whether it may also constitute 
``practice.'' 8 CFR 1003.17(b), 1003.38(g)(2).
    The final rule does not adopt the language from the NPRM for the 
definition of ``practice.'' See 85 FR at 61651. Instead, it defines 
``practice'' as ``exercising professional judgment to provide legal 
advice or legal services related to any matter before EOIR,'' with a 
non-exhaustive description of conduct that constitutes practice in 
order to further clarify the meaning of this language. 8 CFR 1001.1(i). 
The description in the final rule includes a range of conduct: giving 
legal advice, drafting and filing documents on behalf of another person 
before EOIR, and appearing in person on behalf of another person before 
EOIR. Id. Based on that description of conduct, examples of 
``practice'' include, but are not limited to, the following actions if 
taken by a practitioner: engaging in a consultation with an individual 
about forming an attorney-client relationship for assistance in 
immigration proceedings, or otherwise providing legal advice; 
discussing available forms of relief based on a particular noncitizen's 
circumstances; providing legal advice about how to complete an asylum 
application to be filed at an immigration court; drafting a motion to 
reopen on behalf of a noncitizen that is intended to be filed with the 
BIA; and appearing before an immigration judge in person on behalf of a 
noncitizen in removal proceedings.
    The rule maintains a broad definition of ``practice'' for a 
specific reason: all practitioner conduct that constitutes 
``practice''--not just conduct that requires entry of an appearance--
may be subject to EOIR's Rules of Professional Conduct and state rules 
regulating attorney conduct. See, e.g., 8 CFR 1003.101. For example, 
practitioners may be in violation of the EOIR Rules of Professional 
Conduct or state rules for providing a noncitizen with erroneous advice 
regarding the available forms of relief that the noncitizen relied on 
to their detriment. Therefore, practitioners should be mindful that 
even if entry of an appearance is not required, their actions might 
nonetheless be subject to other provisions of the regulations or other 
rules.
    As discussed above, the terms ``practice'' and ``preparation'' do 
not determine when an appearance must be entered to become the 
practitioner of record; practitioners may engage in some conduct 
constituting ``practice'' or ``preparation'' without having to enter an 
appearance to become the practitioner of record. Moreover, even if 
engaging in ``practice'' or ``preparation,'' the practitioner may only 
be required to enter a limited appearance if such conduct constitutes 
document assistance as described in 1003.17(b) and 1003.38(g)(2). For 
example, if a practitioner is leading a legal orientation session to a 
group of pro se noncitizens, and in doing so, merely explains available 
forms of immigration relief to them, the practitioner is not required 
to enter an appearance of any kind. However, if a practitioner assists 
a pro

[[Page 56252]]

se noncitizen in drafting an asylum application after the presentation 
concludes, the practitioner must enter a limited appearance.
b. ``Preparation''
    Commenters indicated that the proposed rule's definition of 
``preparation'' could result in practitioners not providing assistance 
to pro se noncitizens. They suggested that the definition could 
discourage practitioners from taking any action that constitutes 
``preparation'' that could also be considered ``practice'' (i.e., the 
``exercise of professional judgment'' or ``provision of legal advice'' 
in identifying and completing forms) and thus, require entry of an 
appearance under the NPRM's definitions. For example, commenters stated 
that they would be less willing to ask basic questions of noncitizens 
to assist them in completing forms or to solicit information in order 
to guide them in selecting applications for relief, if it would require 
an entry of appearance as practitioner of record and bind them to 
further obligations to the noncitizen or EOIR.
    The final rule does not adopt the language of the proposed rule and 
retains part of the language of the existing regulatory definition of 
``preparation,'' stating that ``preparation'' consists ``solely of 
filling in blank spaces on printed forms.'' \7\ The rule makes clear 
that such action does not include the ``exercise of professional 
judgment to provide legal advice or legal services''; instead, the 
provision of legal advice or services is included under the definition 
of ``practice,'' to explicitly distinguish ``preparation'' from 
``practice.'' See 8 CFR 1001.1(i), (k).
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    \7\ Additionally, in response to commenters' request, the final 
rule removes references to the Department of Homeland Security (DHS) 
in the ``preparation'' definition, as DHS is a separate agency with 
its own definitions. See 8 CFR 1.2. The final rule retains existing 
pre-NPRM regulatory language regarding non-practitioner preparation 
and the requirement that any fees for such assistance be nominal and 
that the non-practitioner cannot hold themselves out as qualified in 
legal matters or immigration or naturalization procedures. See 8 CFR 
1001.1(k).
---------------------------------------------------------------------------

    The Department believes that the commenters' concerns have been 
sufficiently addressed. As noted, supra, an entry of appearance to 
become the practitioner of record and to seek authorization to take on 
the associated responsibilities and obligations is not dictated by the 
terms ``practice'' or ``preparation.'' The entry of limited appearances 
for document assistance does not bind practitioners to provide further 
assistance, which should encourage rather than deter practitioners from 
providing assistance to noncitizens.\8\ While a practitioner will 
always be required to enter a limited appearance when engaged in 
``preparation'' (i.e., the ministerial act of filling in the blanks of 
printed forms), doing so does not bind the practitioner to further 
obligations to the noncitizen or EOIR. Even if practitioners engage in 
``practice'' when providing document assistance, they are only required 
to enter a limited appearance per a Form EOIR-60 or EOIR-61.
---------------------------------------------------------------------------

    \8\ Some commenters indicated that it is unfair to require only 
practitioners engaging in ``preparation'' to complete an entry of 
limited appearance form if non-practitioners engaging in the exact 
same conduct are not obligated to do so. The Department disagrees. 
Practitioners have specific legal and ethical obligations due to 
their status as practitioners. Indeed, the final rule requires 
completion of a Form EOIR-60 or EOIR-61 in order to have the 
practitioner attest that they understand that EOIR's Rules of 
Professional Conduct govern their conduct. See Forms EOIR-60 and 
EOIR-61. Non-practitioners are limited to engaging in conduct that 
is exclusively ``preparation,'' which is a narrow segment of conduct 
because the preparation of most forms requires engaging in 
``practice.'' Moreover, non-practitioners engaging in preparation of 
forms are still required to complete the preparer section of the 
forms, when applicable. EOIR's Fraud and Abuse Prevention Program 
will continue to be investigate reports of non-practitioners 
engaging in services beyond those authorized (i.e., engaging in the 
unauthorized practice of law), including those kinds of conduct 
defined as ``practice'' in this rule. See EOIR, Fraud and Abuse 
Prevention Program, available at https://www.justice.gov/eoir/fraud-and-abuse-prevention-program (last updated Mar. 4, 2020).
---------------------------------------------------------------------------

    For example, practitioners, without further obligation, may 
permissibly assist a pro se noncitizen in completing a change of 
address form (Form EOIR-33) and engage in ``preparation,'' provided 
that the practitioner completes a limited appearance form.\9\ Without 
further obligation to become the practitioner of record, practitioners 
may also assist pro se noncitizens in completing asylum applications 
and provide legal advice on how to present claims on the form, even 
though they are engaging in ``practice'' and ``preparation.'' 
Practitioners doing so are required to complete a Form EOIR-60 or EOIR-
61 to be filed with the application and to complete the preparer 
section of the form. Conversely, if a practitioner is merely reading an 
administrative form to the applicant, in English or in the applicant's 
primary language, an entry of appearance would not be required.
---------------------------------------------------------------------------

    \9\ The Form EOIR-60 and Form EOIR-61 are estimated to take no 
more than 6 minutes to complete.
---------------------------------------------------------------------------

4. Form EOIR-60 and Form EOIR-61
    In contemplating changes to the manner of entry of appearance forms 
as suggested by the proposed rule, some commenters stated that 
completing an additional appearance form for actions that did not 
previously require an appearance form is too burdensome, especially 
when they must also complete the ``preparer section'' of a form. After 
careful deliberation, the Department determined that the informational 
needs of requiring such disclosure far outweigh the burden imposed on 
practitioners.
    The goals of this rulemaking include providing greater flexibility 
to practitioners to be able to assist noncitizens appearing pro se 
before EOIR; providing increased access to legal assistance for such 
noncitizens, while adding protections to reduce the risk of individuals 
being victimized by ``ghostwriting'' and fraud; and ensuring 
practitioners are abiding by EOIR's Rules of Professional Conduct. The 
Department determined that identification of practitioners through the 
submission of an entry of limited appearance form, plus the additional 
requirements regarding the ``preparer section'' on forms and disclosure 
of assistance on other documents through name and signature, will 
reduce the risk to the public of unscrupulous individuals that 
currently prey on vulnerable noncitizens through ``ghostwriting.'' For 
example, the Department believes that, by increasing flexibility for 
practitioners who wish to provide varying types of assistance to 
noncitizens in proceedings before EOIR, the pool of individuals engaged 
in legitimate practices and available to assist noncitizens will 
expand, leaving less room for bad actors. Such requirements will also 
hold practitioners accountable for the document assistance they perform 
pursuant to the final rule.
    Ghostwriting is a practice that occurs when an unidentified 
individual, whether a practitioner or non-practitioner, assists a 
noncitizen with or drafts pleadings, applications, petitions, motions, 
briefs, or other documents that are filed with EOIR. Ghostwritten 
documents can contain false or fraudulent information, sometimes 
unbeknownst to the noncitizen, and often present substandard, 
incomplete, inaccurate, or boilerplate work products. Ghostwriting is 
often a means for unscrupulous or unqualified individuals and other bad 
actors to deceive and mislead noncitizens and EOIR or, with the 
acquiescence of noncitizens, ghostwriting may be a means to perpetuate 
fraud and undermine proceedings.
    As described in the NPRM, ghostwriting is harmful to parties and 
undermines the integrity of proceedings, candor to the tribunal, and

[[Page 56253]]

accountability. See 85 FR at 61647; see also, e.g., Villagordoa Bernal 
v. Rodriguez, No. 16-cv-152-CAS, 2016 WL 3360951, at *7 (C.D. Cal. June 
10, 2016) (``[T]he parties are reminded that ghostwriting of pro se 
filings is, of course, inappropriate and potentially sanctionable 
conduct.'') (citing Ricotta v. Calif., 4 F. Supp. 2d 961, 986 (S.D. 
Cal. 1998))); Tift v. Ball, No. 07-cv-276-RSM, 2008 WL 701979, at *1 
(W.D. Wash. Mar. 12, 2008) (``It is therefore a violation for attorneys 
to assist pro se litigants by preparing their briefs, and thereby 
escape the obligations imposed on them under Rule 11.''); Laremont-
Lopez v. SE Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79 
(E.D. Va. 1997) (explaining that ghostwriting causes confusion 
regarding representation, interferes with the administration of 
justice, constitutes a misrepresentation to the court under Rule 11, 
and while ``convenient for counsel,'' disrupts the proper conduct of 
proceedings).
    Importantly, under the final rule, allowing practitioners to enter 
an appearance for document assistance without further obligation to act 
on behalf of a pro se noncitizen should expand noncitizens' access to 
practitioner assistance. Indeed, commenters indicated that they would 
be able to provide more services to noncitizens if limited appearances 
for document assistance were permitted. Unqualified or unethical 
individuals and other bad actors should have a reduced ability to 
operate in immigration proceedings through ``ghostwriting'' because 
practitioners who may have been dissuaded from providing assistance if 
they could not limit their role to document assistance will be more 
willing to engage in a limited appearance, thereby furthering the 
ability of noncitizens to find authorized and competent practitioners 
who are willing to identify themselves and provide assistance. 
Identification will also enable noncitizens, EOIR, and other 
authorities to hold practitioners accountable for the quality and 
substance of the limited documentary assistance work they perform.
    These benefits far outweigh the burdens of having to complete the 
entry of a limited appearance form, which is estimated to take only 6 
minutes to complete, and the other disclosure requirements of the final 
rule. See infra Section V.H. Paperwork Reduction Act of 1995 (further 
explaining the benefits of these regulatory changes). Indeed, as 
described below, the new limited appearance forms are less burdensome 
than the revisions to the appearance forms the Department proposed in 
the NPRM. In contrast to the originally proposed forms, the new Forms 
EOIR-60 and Form EOIR-61 do not include the proposed information 
collection that would have required signature by the noncitizen and 
disclosure of fees charged by a practitioner.
    Given the benefits of identifying practitioners who provide only 
document assistance before EOIR, the Department agrees with the 
commenters that separate appearance forms for the entry of a limited 
appearance are more appropriate than attempting to modify the existing 
appearance forms to capture this unique type of appearance. Further, 
the Department recognizes that revising the Form EOIR-27 and Form EOIR-
28 to encompass substantially different circumstances could cause 
confusion over the practitioner's representation status. Thus, the 
Department created the Form EOIR-60 and Form EOIR-61 for practitioners' 
entry of a limited appearance rather than revising Form EOIR-27 and 
Form EOIR-28. These new forms provide the most efficient means for EOIR 
to track the identity of practitioners who have entered a limited 
appearance for document assistance, as distinct from those who have 
entered an appearance as practitioner of record.
    Some commenters indicated that the Department did not allow the 
public an opportunity to comment on the draft forms contemplated for 
limited appearances. Pursuant to the Paperwork Reduction Act of 1995, 
agency discussion of the information collection and the provision of 
instructions for providing public comments in the associated rulemaking 
is sufficient to provide the required public notice. See 44 U.S.C. 
3506(c)(2)(A) (listing considerations for which an agency must solicit 
public comment on proposed information collections). The NPRM contained 
such information and described the intended changes to the Forms EOIR-
27 and EOIR-28. See 85 FR at 61647. However, after consideration of the 
public comments that recommended separate forms for entering a limited 
appearance in balance with the agency's needs, the Department decided 
to proceed in line with that recommendation. In order to provide the 
public with the opportunity to comment on that decision, the Department 
published a 60-day notice in the Federal Register on August 30, 2021, 
that the Department was inviting public comments ahead of its 
submission to the Office of Management and Budget for review and 
approval. See 86 FR 48443. The public comment period closed on October 
29, 2021. No public comments were received.
5. Requirements of Form EOIR-60 and Form EOIR-61
    When a Form EOIR-60 or Form EOIR-61 is completed, the final rule 
provides that it must not be filed as a standalone document. 8 CFR 
1003.17(b)(1), 1003.38(g)(2)(i). Rather, a single Form EOIR-60 or Form 
EOIR-61 must be filed with the immigration court or the BIA, 
respectively, with the document on which a practitioner has provided 
assistance. If a practitioner prepares, drafts, or completes a set of 
documents that are filed together, a single Form EOIR-60 or Form EOIR-
61 may be completed to accompany that set of documents. Id. As provided 
in this rule, the practitioner must also complete the preparer section 
of any forms, if applicable, and must identify the practitioner by name 
and signature on any motions or briefs being submitted. 8 CFR 
1003.17(c), 1003.38(g)(3). Noncitizens may file the entry of a limited 
appearance and assisted documents themselves or may arrange for an 
individual, such as the practitioner who assisted, to file the 
documents in accordance with EOIR filing policies. See, e.g., EOIR, 
Immigration Court Practice Manual Ch. 3.1(a), available at https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual 
(last updated Dec. 16, 2021) (explaining how documents may be filed 
with EOIR, either through the U.S. Postal Service or by courier, or 
electronically where permitted and/or required, and that ``[h]and-
delivered filings should be brought to the Immigration Court's public 
window during that court's filing hours''). After any such initial 
filing of a document or set of documents with a Form EOIR-60 or EOIR-
61, a subsequent filing of a document or set of documents in which a 
practitioner provided document assistance must be accompanied by a 
separate Form EOIR-60 or Form EOIR-61. 8 CFR 1003.17(b)(1), 
1003.38(g)(2)(i).
    The Form EOIR-60 and Form EOIR-61 requires the practitioner to 
provide the following data: practitioner's name; contact information; 
bar number (``BAR#'') or EOIR identification number (``EOIR ID#''),\10\ 
as applicable; and a

[[Page 56254]]

description of the underlying document(s) for which assistance was 
provided. The practitioner's signature attests that they explained the 
scope of their limited assistance to the pro se noncitizen,\11\ that 
they are an authorized and qualified ``practitioner,'' and that they 
understand that they are bound by EOIR's Rules of Professional Conduct. 
The Department has taken steps to minimize any burden imposed on 
practitioners by deleting the ``certification by the pro se 
respondent'' and ``fees charged'' fields as proposed by the NPRM. See 
85 FR at 61645. The Department agrees with commenters that the 
information regarding fees is unnecessary because such information is 
not captured on the Form EOIR-27 or Form EOIR-28 and because excessive 
or unethical legal fees are regulated through EOIR's Rules of 
Professional Conduct and similar state rules and standards. The 
Department estimates that the Forms EOIR-60 or EOIR-61 are expected to 
take no more than 6 minutes to complete.
---------------------------------------------------------------------------

    \10\ In response to a commenter's question regarding 
registration to practice before EOIR, the regulations at 8 CFR 
1292.1(f) already authorize the registration of ``attorneys and 
accredited representatives . . . as a condition of practice before 
immigration judges or the Board of Immigration Appeals.'' Under the 
registration procedures established pursuant to these regulations, 
practitioners who are attorneys or accredited representatives are 
already required to complete the electronic registration process 
prior to entering an appearance before EOIR, regardless of whether 
that appearance is limited to providing document assistance.
    \11\ Relatedly, the Department is cognizant of potential 
difficulties raised by the public in completing document assistance 
with noncitizens who are detained. However, those difficulties exist 
independently of the final rule. In fact, if a practitioner is able 
to provide underlying document assistance to a detained noncitizen, 
then they will be able to explain the scope of their limited 
appearance--as required by the attestation on the Form EOIR-60 and 
EOIR-61--at the same time. Similar to the current entry of 
appearance forms EOIR-27 and EOIR-28, the noncitizen's signature is 
not required on the EOIR-60 and EOIR-61, further minimizing the 
burden of entering a limited appearance.
---------------------------------------------------------------------------

6. Noncitizen Retains Pro Se Status
    In cases where a practitioner enters a limited appearance for 
document assistance, the noncitizen remains pro se and unrepresented in 
the EOIR proceedings. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii). 
Through the submission of the Form EOIR-60 or Form EOIR-61, the 
practitioner is not transformed into the practitioner of record, and 
thus, is not required to appear in immigration court or before the BIA 
on the noncitizen's behalf, will not receive service of process of any 
case filings, and will not be provided with access to the record of 
proceedings.\12\ See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii).
---------------------------------------------------------------------------

    \12\ Commenters urged that access to the record of proceedings 
should be allowed for practitioners entering limited appearances. 
However, the Department decided that existing access procedures 
properly balance access with security and confidentiality and should 
remain unchanged given the discrete scope of a limited appearance 
for document assistance. This is particularly so, given that 
practitioners engaging in limited appearances do not have the same 
obligations as those intending to be practitioner of record. Thus, 
the final rule makes no changes to existing record of proceedings 
access procedures. See, e.g., EOIR, Immigration Court Practice 
Manual, Ch. 1.6(c) (last updated Feb. 14, 2022) (explaining access 
procedures). Alternatively, practitioners who are not the 
practitioner of record in a case may obtain the record of proceeding 
from the noncitizen--who may make an electronic request by email 
directly to the immigration court or BIA for a copy--or 
practitioners may submit a Freedom of Information Act (FOIA) request 
to EOIR that includes signed written consent from the noncitizen who 
is the subject of the record of proceeding. See e.g., id., at Ch. 
12.2 (describing the process for making a request directly with the 
immigration court or BIA or through the FOIA process).
---------------------------------------------------------------------------

B. Rules of Professional Conduct

    Many commenters indicated that the NPRM's proposed revisions to the 
disciplinary rule, 8 CFR 1003.102(t), to delete the ``pattern or 
practice'' requirement, and instead include language that indicates 
that failure to file an appearance form even one time could result in 
disciplinary action, is problematic because a single mistake should not 
be sufficient to institute disciplinary action. Moreover, they raised 
concerns regarding the proposed revisions to 8 CFR 1003.102(u), which 
would penalize the drafting of documents that are later filed with 
EOIR. Commenters stated that, due to the proposed provision's ambiguity 
about the scope of ``drafting,'' disciplinary action could be based on 
templates or example briefs that organizations provide to pro se 
noncitizens but are completed later in time without the assistance of a 
practitioner. Practitioners are concerned that they could be 
disciplined for substandard quality of such filings when they did not 
actually assist in completing them.
    The Department agrees that 8 CFR 1003.102(t) should include 
language to clarify that a single instance of failing to file an 
appropriate entry of appearance form does not lead to disciplinary 
action. Therefore, the final rule amends 8 CFR 1003.102(t) to allow 
discipline of any practitioner who ``repeatedly'' fails to sign and 
file the appropriate entry of appearance form. ``Repeatedly,'' rather 
than ``pattern or practice,'' is an easily understood standard that is 
used for other grounds for discipline. See 8 CFR 1003.102(l) 
(``[r]epeatedly fails to appear . . .''); 1003.102(u) (``[r]epeatedly 
files notices, motions, briefs, or claims that reflect little or no 
attention to the specific factual or legal issues . . .''). 
``Repeatedly'' serves to clarify that only a practitioner who fails to 
file the proper appearance form on more than one occasion is subject to 
discipline. Additionally, based on the changes in this final rule--to 
both the definitions of ``practice'' and ``preparation'' and the 
provisions of 8 CFR 1003.17 and 1003.38--references to ``practice'' and 
``preparation'' in the current 8 CFR 1003.102(t) have been removed as 
unnecessary to effectively describe the conduct subject to disciplinary 
action.\13\
---------------------------------------------------------------------------

    \13\ The terms ``practice'' and ``preparation'' as included in 
current 8 CFR 1003.102(t) were, in part, the subject of a Federal 
lawsuit, Northwest Immigration Rights Project (NWIRP) v. Garland, 
No. 2:17-cv-00716 (W.D. Wash.). To the extent commenters have raised 
concerns that the proposed rule violates a Settlement Agreement 
entered in that litigation, such concerns are unfounded as the final 
rule satisfies the aims of the Settlement Agreement. See generally 
Notice of Settlement and Filing of Settlement Agreement, NWIRP v. 
Barr, No. 2:17-cv-00716 (W.D. Wash. Apr. 17, 2019) (permitting 
Department to aim to promulgate regulations allowing practitioners 
to provide pro se noncitizens with document assistance without 
requiring practitioner to enter appearance as practitioner of record 
and to require identification of such practitioners to EOIR with the 
option of disciplinary procedures for failing to do so).
---------------------------------------------------------------------------

    The final rule also amends 8 CFR 1003.102(u) to subject 
practitioners to discipline if they repeatedly ``draft'' notices, 
motions, briefs or claims that are filed with DHS or EOIR that rely on 
boilerplate language and reflect little or no attention to the specific 
facts or legal issues applicable to a client's case. This ground of 
discipline currently focuses on practitioners who repeatedly ``file'' 
such documents. See 65 FR 39526, June 27, 2000, as amended at 73 FR 
76923, Dec. 18, 2008, 81 FR 92362, Dec. 19, 2016 (8 CFR 1003.102(u)). 
Given that practitioners can permissibly draft documents for pro se 
noncitizens under the changes to the final rule that permit a limited 
appearance for document assistance, the Department determined that it 
is necessary to amend this ground to hold practitioners accountable for 
the quality of their assistance on such documents. 8 CFR 1003.102(u). 
The applicability of this provision should not depend on whether 
documents drafted by a practitioner under this rule are ``filed'' by 
the practitioner or are ``filed'' by the noncitizen after receiving the 
practitioner's documentary assistance.
    Commenters' concern about being subject to discipline for documents 
completed and filed by pro se noncitizens without practitioner 
assistance is unfounded. The use of template documents or form 
pleadings, drafted by a practitioner but later completed and filed by 
pro se noncitizens who add case-specific information without any 
assistance by the practitioner, need not be accompanied by a Form EOIR-
60 or Form EOIR-61 or the practitioner's name and signature. Because 
the practitioner who created the template or form pleading did not 
provide

[[Page 56255]]

assistance with the drafting of the case-specific content of the 
document filed by the noncitizen, the practitioner would not be 
responsible for such document.\14\
---------------------------------------------------------------------------

    \14\ However, the template itself or the provision of such a 
template may implicate other disciplinary rules depending on the 
facts and circumstances. For example, if the template is legally 
deficient in some manner, disciplinary rules may be at issue.
---------------------------------------------------------------------------

    Further, the final rule creates a separate ground for discipline at 
8 CFR 1003.102(w), which requires practitioners to sign documents in 
conformity with EOIR rules and any form instructions. This provision 
builds on and provides further clarity to the prohibition on 
practitioners failing to sign pleadings, applications, motions, or 
other filings that was previously included at 8 CFR 1003.102(t)(2).

C. Miscellaneous Changes

    Finally, the final rule makes changes to 8 CFR 1003.2 and 1003.3 to 
include references to when the new entry of appearance form, Form EOIR-
60, must be utilized in filings regarding reopening before the BIA and 
when the form must be filed with a Notice of Appeal before the BIA, 
respectively. This clarification is necessary to inform practitioners 
that any document assistance with respect to filings regarding 
reopening before the BIA or a Notice of Appeal before the BIA falls 
under the scope of 8 CFR 1003.38 and thus requires an entry of 
appearance.
    Additionally, the final rule moves (without change) the definition 
of the term ``practitioner'' from EOIR's Rules of Professional Conduct, 
see 8 CFR 1003.101(b), to the list of generally applicable definitions 
section. The Department is moving this term for clarity since the 
provisions at 8 CFR 1003.17 and 1003.38 regarding entry of appearances 
apply to all types of practitioners.

IV. Notice-and-Comment Requirements

    The NPRM provided for a 30-day notice and comment period as 
required pursuant to 5 U.S.C. 553. The proposed rule provided 
sufficient detail and rationale to permit interested parties to comment 
meaningfully. Indeed, the Department received a number of substantive 
comments recommending changes to the rule that have, in fact, been 
adopted in certain respects. For example, pursuant to the public input 
received, the final rule eliminates the proposed requirements to 
disclose fees and obtain a signed written attestation from the 
noncitizen and creates separate forms for entering a limited 
appearance. Despite the discussion of the relevant issues in the NPRM, 
some commenters contended that the 30-day comment period for this rule 
was insufficient because there were significant equities at stake, this 
rule was not time-sensitive, and the COVID-19 pandemic made it 
difficult to respond properly to the proposed rule on a short 
timeframe.
    While the APA does not require a minimum specific length of time 
for the comment period, the Department believes the 30-day comment 
period was clearly sufficient given the limited set of issues addressed 
in the NPRM and the volume and detail of comments received. See 5 
U.S.C. 553(b), (c). Moreover, the Department provided an additional 60-
day notice and comment period to comment on the proposed entry of 
limited appearance Forms EOIR-60 and EOIR-61, which reflected that the 
disclosure of fees and attestation from the noncitizen were not being 
required. No comments were received regarding those forms during that 
comment period.
    The revisions to ``practice'' and ``preparation,'' at 8 CFR 
1001.1(i) and (k), maintain the general framework of the definitions in 
the proposed rule, and also provide additional clarity about their 
scope. The changes to the regulatory text are within the scope of the 
notice provided by the NPRM, and the adopted changes are consistent 
with the public comments received. Therefore, the final rule is a 
logical outgrowth of the proposed agency action described in the NPRM 
See, e.g., Environmental Defense Center v. U.S. E.P.A., 344 F.3d 832, 
851-52 (9th Cir. 2003); American Water Works Ass'n v. E.P.A., 40 F.3d 
1266, 1274 (D.C. Cir. 1994). Thus, the purpose of the NPRM was 
adequately stated and the interested parties could reasonably have 
anticipated the final rulemaking from the NPRM and the comments 
received.

V. Regulatory Requirements

A. Administrative Procedure Act

    This final rule is being published with a 60-day delayed effective 
date, greater than the minimum 30-day period required by the 
Administrative Procedure Act. 5 U.S.C. 553(d).

B. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. Though many 
practitioners may qualify as small entities under the Regulatory 
Flexibility Act, the burdens of this rule will typically be limited to 
the submission of forms identifying their personal participation, a 
requirement estimated to require 6 minutes of time in each instance.
    Practitioners who wish to represent noncitizens in person as 
practitioner of record in immigration proceedings are already required 
to submit a Form EOIR-27 or EOIR-28, and all individuals who prepare an 
application form or other form for a noncitizen are already required to 
disclose such preparation if the form requires it. This rule will 
require practitioners who provide document assistance to noncitizens to 
submit a Form EOIR-60 or EOIR-61, if they elect not to become the 
practitioner of record to represent them in EOIR proceedings. However, 
most, if not all, such practitioners are well-versed in submitting a 
similar Form EOIR-27 or EOIR-28 for entry of appearance in cases in 
which they do represent a noncitizen in proceedings before EOIR. The 
new Forms EOIR-60 or EOIR-61 are similar in nature to the existing 
appearance forms, and therefore, should be simple to complete. They are 
not expected to take more than 6 minutes to complete and will only 
involve providing information that the practitioner providing 
assistance already knows well--i.e., their own contact information and 
identification of the documents they assisted with.
    The Department has also determined that the needs of requiring such 
disclosure far outweigh the burden imposed on practitioners. The goals 
of this rulemaking include providing greater flexibility to 
practitioners to be able to assist noncitizens appearing pro se before 
EOIR and increasing access to legal assistance for such noncitizens 
because practitioners who may have been dissuaded from providing 
assistance if they could not limit their role to document assistance 
will be more willing to engage in a limited appearance. The Department 
expects that this rulemaking will increase the number of competent 
practitioners willing to identify themselves to EOIR. These changes, in 
turn, will likely diminish the risk of individuals being exploited by 
unaccountable ``ghostwriting'' because unqualified and unethical 
individuals should have a reduced ability to operate in immigration 
proceedings. Finally, the enhanced identification provisions of the 
rulemaking will ensure that practitioners are abiding by EOIR's Rules 
of Professional Conduct by allowing EOIR to hold practitioners 
accountable for the quality and substance of their work.
    In order to achieve these goals, EOIR must have a means of 
accurately

[[Page 56256]]

identifying practitioners providing document assistance under the terms 
of this rule. The Department recognizes that requiring practitioners to 
complete an entry of limited appearance form does impose a burden on 
practitioners, and the Department has taken steps to minimize that as 
much as possible, without sacrificing the requirements necessary to 
safeguard noncitizens from unscrupulous actors. Therefore, even though 
there will be an impact on practitioners, the Department believes that 
the needs far outweigh the burden.

C. 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 (as adjusted for inflation), 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.

D. Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Congressional Review Act. However, the Department will be submitting 
the required reports under the Congressional Review Act to the 
Government Accountability Office and to the House and Senate.

E. Executive Orders 12866 and 13563

    The Office of Information and Regulatory Affairs (OIRA) has 
determined that this rule is a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 (Regulatory Planning and Review). 
Accordingly, this rule has been submitted to the Office of Management 
and Budget (OMB) for review. This rule has been drafted and reviewed in 
accordance with Executive Order 12866's section 1(b), Principles of 
Regulation, and in accordance with section 1(b) of Executive Order 
13563 (Improving Regulation and Regulatory Review), General Principles 
of Regulation.
    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 using the best 
available methods to quantify costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility.
    As discussed above, practitioners who wish to act as practitioner 
of record for noncitizens in person in immigration proceedings are 
already required to submit Form EOIR-27 or EOIR-28 and all individuals 
who prepare an application form for a noncitizen are already required 
to disclose such preparation if the form requires it. Although this 
rule will require practitioners who provide document assistance to 
noncitizens but elect not to become the practitioner of record to 
represent them in court, to submit a Form EOIR-60 or EOIR-61, most, if 
not all, such practitioners are well-versed in submitting a similar 
Form EOIR-27 or EOIR-28 for cases in which they represent a noncitizen 
in proceedings before EOIR.
    Moreover, the limited appearance form, which substantially mirrors 
existing forms, will not add any significant time burden. The new Forms 
EOIR-60 or EOIR-61 are similar in nature to the existing appearance 
forms and are not expected to take more than 6 minutes to complete. 
They only involve providing information that the practitioner providing 
assistance already knows well--i.e., their own contact information and 
basic details about the limited appearance by identifying the documents 
for which they provided assistance. Any costs to practitioners will be 
solely in relation to completing the limited appearance form and 
explaining the scope of their assistance to the noncitizen. The 
practitioner may, but is not required to, separately serve the form on 
DHS or EOIR. Rather, the practitioner may provide the form to the pro 
se noncitizen for them to file and serve with the underlying document.
    Thus, for the reasons explained above and in the NPRM, the expected 
costs of this rule are likely to be de minimis.

F. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the Federal government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, the Department has determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

G. 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.

H. Paperwork Reduction Act of 1995

    The Department of Justice, through EOIR, has submitted an 
information collection request to OMB for review and clearance in 
accordance with review procedures of the Paperwork Reduction Act of 
1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing 
regulations, 5 CFR part 1320. The Department, through EOIR, previously 
submitted this rulemaking, including a request for a new information 
collection (ICR Ref. No. 202111-1125-001), to the Office of Management 
and Budget (OMB) for review and approval in accordance with the 
Paperwork Reduction Act of 1995. This proposed information collection 
was previously published in the Federal Register at 86 FR 48443 (Aug. 
30, 2021), allowing for a 60-day comment period. OMB assigned OMB 
Control Number 1125-0021 to this collection. Further comments are 
encouraged and will be accepted for 30 days from the date of 
publication of this rulemaking. Written comments and recommendations 
for the proposed information collection should be sent within 30 days 
of publication of this notice to https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting 
``Currently under Review--Open for Public Comments'' or by using the 
search function.
    The Department received comments related to the proposed 
information collections associated with this rulemaking. In the 
proposed rule, the Department stated that it would revise Form EOIR-26, 
Notice of Appeal from a Decision of an Immigration Judge; Form EOIR-27; 
and Form EOIR-28, to allow for limited appearances as contemplated in 
this rule. See 85 FR at 61650. However, after further deliberation, the 
Department has decided to pursue a new information collection request 
(ICR) containing two new standalone forms for limited appearances 
related to document assistance for pro se noncitizens. The Department 
appreciates commenters' recommendation that the Department create 
separate forms for the entry of a limited appearance before the 
immigration courts and the BIA. The commenters' concerns that amending 
the existing entry of appearance forms would cause confusion that could 
lead to the misuse of the collection were valid. Thus, EOIR has created 
the Forms

[[Page 56257]]

EOIR-60, Notice of Entry of Limited Appearance for Document Assistance 
Before the Board of Immigration Appeals, and EOIR-61, Notice of Entry 
of Limited Appearance for Document Assistance Before the Immigration 
Court. The forms will be made available on EOIR's website, in a 
fillable .pdf format. This rule implements new requirements for 
practitioners to enter a limited appearance when assisting a pro se 
noncitizen with documents intended to be filed with EOIR. This 
information collection is necessary to allow a practitioner to notify 
the BIA or the Immigration Court that the practitioner is entering a 
limited appearance to assist a pro se noncitizen with a legal filing or 
other document intended to be filed with EOIR. In completing the form, 
practitioners must confirm that they have explained the scope of their 
limited assistance to the noncitizen and the form must be filed with 
the associated documents. The form creates no continuing obligation on 
the part of the practitioner, and because of this, a new form must be 
filed with each document submission. EOIR currently uses appropriate 
information technology to reduce burdens and improve data quality, 
agency efficiency, and responsiveness to the public. Under this rule, 
EOIR will continue to do so to the maximum extent practicable and will 
explore implementing technology to facilitate information collections.
    Under the current regulation, it is estimated that it takes a total 
of 6 minutes to complete an entry of appearance form. At this time, it 
is difficult for EOIR to estimate the total receipts it will receive 
for this new collection. Pursuant to the NPRM, EOIR estimated the total 
receipts would be at least as many receipts as received for the other 
two forms for the entry of appearance before the Immigration Court 
(Form EOIR-28) and the Board of Immigration Appeals (Form EOIR-27). 
These forms are used for practitioners who wish to appear on behalf of 
a noncitizen in pending proceedings and remain the practitioner of 
record to which all obligations and responsibilities attach. Forms 
EOIR-28 and EOIR-27 are not used for limited appearance purposes, but 
EOIR expects that at least some of those practitioners will enter 
limited appearances to assist noncitizens with document filings. 
Therefore, in order to not underestimate the burden, EOIR will assume 
that it will receive as many entries for limited appearances as it does 
for full appearances. Therefore, the total number of submissions of the 
Forms EOIR-60 and EOIR-61 are expected to be 841,029 (the total 
receipts for the EOIR-27 (53,816) and EOIR-28 (787,213) for FY2019 as 
provided in the NPRM). The total public burden of these revised 
collections is estimated to be 84,102.9 burden hours annually (for Form 
EOIR-27, 53,816 noncitizens (FY 2019) x 1 response per noncitizen x 6 
minutes per response = 5,381.6 burden hours) + (for Form EOIR-28, 
787,213 noncitizens (FY 2019) x 1 response per noncitizen x 6 minutes 
per response = 78,721.3 burden hours) = 84,102.9 burden hours).
    Following the new ICR's review and approval by the Office of 
Information and Regulatory Affairs (OIRA), the Department will publish 
notice of the new forms in the Federal Register. Following that 
publication, use of the new standalone form will be mandatory as 
outlined in 8 CFR 1003.17(a)(2) and 1003.38(g)(1)(ii).

List of Subjects

8 CFR Part 1001

    Administrative practice and procedure, Immigration.

8 CFR Part 1003

    Administrative practice and procedure, [Noncitizens], Immigration, 
Legal services, Organization and functions (Government agencies).

    Accordingly, for the reasons stated in the preamble, parts 1001 and 
1003 of title 8 of the Code of Federal Regulations are amended as 
follows:

PART 1001--DEFINITIONS

0
1. The authority citation for part 1001 continues 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, revise paragraphs (i) and (k) and add paragraph 
(ff) to read as follows:


Sec.  1001.1  Definitions.

* * * * *
    (i) The term practice means exercising professional judgment to 
provide legal advice or legal services related to any matter before 
EOIR. Practice includes, but is not limited to, determining available 
forms of relief from removal or protection; providing advice regarding 
legal strategies; drafting or filing any document on behalf of another 
person appearing before EOIR based on an analysis of applicable facts 
and law; or appearing on behalf of another person in any matter before 
EOIR.
* * * * *
    (k) The term preparation means the act or acts consisting solely of 
filling in blank spaces on printed forms with information provided by 
the applicant or petitioner that are to be filed with or submitted to 
EOIR, where such acts do not include the exercise of professional 
judgment to provide legal advice or legal services. When this act is 
performed by someone other than a practitioner, the fee for filling in 
blank spaces on printed forms, if any, must be nominal, and the 
individual may not hold himself or herself out as qualified in legal 
matters or in immigration and naturalization procedure.
* * * * *
    (ff) The term practitioner means an attorney as defined in 
paragraph (f) of this section who does not represent the Federal 
Government, or a representative as defined in paragraph (j) of this 
section.

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.  1003.2, revise paragraph (g)(1) to read as follows:


1003.2  Reopening or reconsideration before the Board of Immigration 
Appeals.

* * * * *
    (g) * * *
    (1) English language, entry of appearance, and proof of service 
requirements. A motion and any submission made in conjunction with a 
motion must be in English or accompanied by a certified English 
translation. If a party other than DHS is represented, any motion or 
related filing by that party must be accompanied by a Form EOIR-27, 
Notice of Entry of Appearance as Attorney or Representative Before the 
Board, pursuant to 8 CFR 1003.38(g)(1). If a party other than DHS is 
pro se and receives document assistance from a practitioner with a 
motion or related filing pursuant to 8 CFR 1003.38(g)(2), a Form EOIR-
60 must be filed with the motion or related filing. In all cases, the 
motion must include proof of service on the opposing party of the 
motion and all attachments. If the moving party is not DHS, service of 
the motion must be made upon the DHS office in which the

[[Page 56258]]

case was completed before the immigration judge.
* * * * *

0
5. In 1003.3, revise paragraph (a)(3) to read as follows:


1003.3  Notice of appeal.

    (a) * * *
    (3) General requirements for all appeals. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec.  1003.8. If the respondent 
or applicant is represented, pursuant to 8 CFR 1003.38(g)(1), a Form 
EOIR-27, Notice of Entry of Appearance as Attorney or Representative 
Before the Board, must be filed with the Notice of Appeal. If the 
respondent or applicant receives document assistance from a 
practitioner with the appeal, pursuant to 8 CFR 1003.38(g)(2), a Form 
EOIR-60 must be filed with the Notice of Appeal. The appeal and all 
attachments must be in English or accompanied by a certified English 
translation.
* * * * *

0
6. Revise Sec.  1003.17 to read as follows:


1003.17  Entry of appearance.

    (a) Entering an appearance using Form EOIR-28. A practitioner must 
enter an appearance in proceedings before an immigration court using 
Form EOIR-28 to perform the functions of and become the practitioner of 
record. The practitioner of record is authorized and required to appear 
in immigration court on behalf of the respondent, file all documents on 
behalf of the respondent, and accept service of process of all 
documents filed in the proceedings. The practitioner may enter an 
appearance to be the practitioner of record for all proceedings before 
the immigration court, or for custody and bond proceedings only, or for 
all proceedings other than custody and bond proceedings. A 
practitioner's entry of appearance in only a custody or bond proceeding 
shall be separate and apart from an entry of appearance in any 
proceeding other than custody or bond before the immigration court. The 
Form EOIR-28 must indicate whether the practitioner's entry of 
appearance is for all proceedings, for custody and bond proceedings 
only, or for all proceedings other than custody and bond proceedings.
    (1) Filing Form EOIR-28. The practitioner must file a copy of the 
Form EOIR-28 with the immigration court and serve a copy on DHS as 
required by 8 CFR 1003.32. The practitioner must file and serve a Form 
EOIR-28 even if the practitioner has previously filed a separate Notice 
of Entry of Appearance with DHS for appearances before DHS or 
previously entered a limited appearance using Form EOIR-61 in 
connection with document assistance under paragraph (b) of this 
section.
    (2) Effect of Filing Form EOIR-28. A practitioner who enters an 
appearance using Form EOIR-28 is the practitioner of record and must 
appear in immigration court on behalf of the respondent, file all 
documents on behalf of the respondent, and accept service of process of 
all documents filed in the proceedings, consistent with 8 CFR 1292.5. 
Filing a Form EOIR-28 provides the practitioner with access to the 
record of proceedings during the course of proceedings. A respondent 
shall be considered represented for the proceedings in which an EOIR-28 
has been filed.
    (3) Withdrawal or substitution. A practitioner who enters an 
appearance on behalf of a respondent before the immigration court by 
filing a Form EOIR-28 remains the practitioner of record unless an 
immigration judge permits withdrawal or substitution during proceedings 
upon oral or written motion submitted without fee.
    (b) Entering a limited appearance for document assistance using 
Form EOIR-61. A practitioner who provides assistance to a pro se 
respondent with the drafting, completion, or filling in of blank spaces 
of a specific motion, brief, form, or other document or set of 
documents intended to be filed with the immigration court, regardless 
of whether such assistance is considered ``practice'' or 
``preparation'' as defined in 8 CFR 1001.1, must disclose such limited 
assistance to the immigration court using Form EOIR-61, unless pursuant 
to paragraph (a) the practitioner has filed a Form EOIR-28 to become 
the practitioner of record.
    (1) Filing Form EOIR-61. A Form EOIR-61 must not be filed as a 
standalone document. The single Form EOIR-61 must be filed with the 
immigration court at the same time as the document or set of documents 
with which the practitioner assisted. Any subsequent filing of a 
document or set of documents with which a practitioner assisted must be 
accompanied by a new Form EOIR-61.
    (2) Effect of Filing Form EOIR-61. A practitioner who enters a 
limited appearance using Form EOIR-61 is not the practitioner of 
record, is not required to appear on behalf of respondent before the 
immigration court, and is not required to submit a motion to withdraw 
or substitute. The submission of a Form EOIR-61 does not create 
additional ongoing obligations between the practitioner, the 
respondent, and EOIR. An appearance through Form EOIR-61 does not 
provide the practitioner with access to the record of proceedings. A 
respondent who received assistance pursuant to this paragraph is not 
represented, remains pro se, and is subject to service of process of 
all documents filed in the proceedings, consistent with 8 CFR 1292.5.
    (c) Completing an appearance form, proof of qualification, 
disclosure requirements, and identification. The practitioner must 
properly complete and sign any Form EOIR-28 or Form EOIR-61, as 
required by the form instructions. A practitioner's personal appearance 
or signature on the Form EOIR-28 or Form EOIR-61 constitutes an 
attestation that the person is authorized and qualified to appear as a 
practitioner in accordance with Sec.  1292.1. Further proof that the 
practitioner meets the qualifications of a practitioner as defined in 
Sec.  1292.1 may be required. The completion of a Form EOIR-28 or Form 
EOIR-61 in connection with an application or form that requires 
disclosure of the preparer does not relieve a practitioner from 
complying with the particular disclosure requirements of the 
application or form. Notwithstanding the completion of a Form EOIR-28 
or Form EOIR-61, the practitioner must identify themselves by name, 
accompanied by their signature, on any document filed or intended to be 
filed with the immigration court pursuant to an appearance under 
paragraph (a) or (b).

0
7. In Sec.  1003.38, revise paragraph (g) to read as follows:


Sec.  1003.38  Appeals

* * * * *
    (g) In proceedings before the Board on behalf of a respondent, a 
practitioner must enter an appearance using Form EOIR-27 or Form EOIR-
60.
    (1) Entering an appearance using Form EOIR-27. In proceedings 
before the Board, in order to become the practitioner of record, which 
authorizes and requires the practitioner to appear before the Board on 
behalf of the respondent, file all documents on behalf of the 
respondent, and accept service of process of all documents filed in the 
proceedings, a practitioner must enter an appearance using Form EOIR-
27.
    (i) Filing Form EOIR-27. The practitioner must file a copy of the 
Form EOIR-27 with the Board and serve a copy on DHS as required by 8 
CFR 1003.32. The practitioner must file and serve a Form EOIR-27 even 
if the practitioner has previously filed a separate Notice of Entry of 
Appearance with DHS for appearances before DHS

[[Page 56259]]

or a Form EOIR-28 with the immigration court, or has previously entered 
a limited appearance using a Form EOIR-60 in connection with document 
assistance under paragraph (g)(2) of this section.
    (ii) Effect of filing Form EOIR-27. A practitioner who enters an 
appearance using Form EOIR-27 is the practitioner of record and must 
appear before the Board on behalf of the respondent, file all documents 
on behalf of the respondent, and accept service of process of all 
documents filed in the proceedings, consistent with 8 CFR 1292.5. 
Filing a Form EOIR-27 provides the practitioner with access to the 
record of proceedings during the course of proceedings. A respondent 
shall be considered represented for the proceedings in which a Form 
EOIR-27 has been filed.
    (iii) Withdrawal or substitution. A practitioner who enters an 
appearance on behalf of a respondent before the Board by filing a Form 
EOIR-27 remains the practitioner of record unless the Board permits 
withdrawal or substitution during proceedings only upon written motion 
submitted without fee.
    (2) Entering a limited appearance for document assistance using 
Form EOIR-60. A practitioner who provides assistance to a pro se 
respondent with the drafting, completion, or filling in of blank spaces 
of a motion, brief, form, or other specific document or set of 
documents intended to be filed with the Board, regardless of whether 
such assistance is considered ``practice'' or ``preparation'' as 
defined in Sec.  1001.1, must disclose such limited assistance to the 
Board using Form EOIR-60, unless pursuant to paragraph (g)(1) the 
practitioner has filed a Form EOIR-27 to become the practitioner of 
record.
    (i) Filing Form EOIR-60. A Form EOIR-60 must not be filed as a 
standalone document. The single Form EOIR-60 must be filed with the 
Board at the same time as the document or set of documents with which 
the practitioner assisted. Any subsequent filing of a document or set 
of documents with which a practitioner assisted must be accompanied by 
a new Form EOIR-60.
    (ii) Effect of Filing Form EOIR-60. A practitioner who enters a 
limited appearance using Form EOIR-60 is not the practitioner of 
record, is not required to appear before the Board, and is not required 
to submit a motion to withdraw or substitute. The submission of a Form 
EOIR-60 does not create additional ongoing obligations between the 
practitioner, the respondent, and EOIR. An appearance through Form 
EOIR-60 does not provide the practitioner with access to the record of 
proceedings. A respondent who received assistance pursuant to this 
paragraph is not represented, remains pro se, and is subject to service 
of process of all documents filed in the proceedings, consistent with 8 
CFR 1292.5.
    (3) Completing an appearance form, proof of qualification, 
disclosure requirements, and identification. The practitioner must 
properly complete and sign any Form EOIR-27 or Form EOIR-60, as 
required by the form instructions. A practitioner's personal appearance 
or signature on the Form EOIR-27 or Form EOIR-60 constitutes a 
representation that the person is authorized and qualified to appear as 
a practitioner in accordance with 8 CFR 1292.1. Further proof that the 
practitioner meets the qualifications of a practitioner as defined in 8 
CFR 1292.1 may be required. The completion of a Form EOIR-27 or Form 
EOIR-60 in connection with an application or form that requires 
disclosure of the preparer does not relieve a practitioner from 
complying with the particular disclosure requirements of the 
application or form.
    Notwithstanding the filing of a Form EOIR-27 or Form EOIR-60, the 
practitioner must identify themselves by name, accompanied by their 
signature, on any document filed or intended to be filed with the Board 
pursuant to an appearance under paragraph (g)(1) or (2) of this 
section.

0
8. In Sec.  1003.101, revise paragraph (b) to read as follows:


Sec.  1003.101  General provisions.

* * * * *
    (b) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. Attorneys employed by the Department of 
Justice shall be subject to discipline pursuant to Sec.  1003.109. 
Nothing in this regulation shall be construed as authorizing persons 
who do not meet the definition of practitioner to represent individuals 
before the Board and the immigration courts or the DHS.
* * * * *

0
9. Amend Sec.  1003.102 by:
0
a. Removing the words ``Immigration Court'' in paragraphs (d) and (j) 
and adding in their place the words ``immigration court'';
0
b. Removing the words ``Immigration Courts'' in paragraph (f)(2)(i) and 
adding in their place the words ``immigration courts'';
0
c. Revising paragraphs (t) and (u); and
0
d. Adding paragraph (w).
    The revisions and addition read as follows:


Sec.  1003.102  Grounds.

* * * * *
    (t) Repeatedly fails to submit a signed and completed entry of 
appearance using the appropriate form in compliance with applicable 
rules and regulations, including 8 CFR 292.4(a), 1003.17, and 1003.38;
    (u) Repeatedly drafts notices, motions, briefs, or claims that are 
filed with DHS or EOIR that reflect little or no attention to the 
specific factual or legal issues applicable to a client's case, but 
rather rely on boilerplate language indicative of a substantial failure 
to competently and diligently represent the client;
* * * * *
    (w) Repeatedly fails to sign any pleading, application, motion, 
petition, brief, or other document prepared, drafted, or filed with DHS 
or EOIR. The practitioner's signature must be in the practitioner's 
individual name and must be handwritten or electronically in conformity 
with the rules and instructions of the applicable system.

    Dated: September 9, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-19882 Filed 9-13-22; 8:45 am]
BILLING CODE 4410-30-P