Federal Register, Volume 91 Issue 145 (Thursday, July 30, 2026)

[Federal Register Volume 91, Number 145 (Thursday, July 30, 2026)]
[Proposed Rules]
[Pages 47979-47994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15458]

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Proposed Rules
Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 91, No. 145 / Thursday, July 30, 2026 /
Proposed Rules

[[Page 47979]]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1103

[Docket No. EOIR-26-AB02; Dir. Order No. 07-2026]
RIN 1125-AB02

Civil Money Penalty for Actions in Contempt of an Immigration
Judge's Proper Exercise of Authority

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking (``NPRM'') would implement
a provision of the Immigration and Nationality Act (``INA'' or ``the
Act'') that authorizes Immigration Judges, under regulations prescribed
by the Attorney General, to sanction by civil money penalty any action
(or inaction) in contempt of the proper exercise of their authority by
certain individuals. The rule would: define the scope of the contempt
authority; provide procedures for contempt findings, penalty
determinations, and penalty payment; establish an appellate process;
and implement oversight of the use of contempt authority. The rule
would also make conforming changes to the grounds for practitioner
discipline.

DATES: Electronic comments must be submitted on or before September 28,
2026. The electronic Federal Docket Management System at https://www.regulations.gov will accept electronic comments until 11:59 p.m.
Eastern Time on that date.

ADDRESSES: If you wish to provide comments regarding this proposed
rulemaking, you must submit your comments, identified by the agency
name and reference RIN 1125-AB02 or EOIR Docket No. EOIR-26-AB02, via
the Federal eRulemaking Portal at https://www.regulations.gov. The
electronic Federal Docket Management System (``FDMS'') at https://www.regulations.gov will accept electronic comments until September 28,
2026. Follow the website instructions for submitting comments. Comments
must be submitted in English, or an English translation must be
provided.
Comments submitted in a manner other than via https://www.regulations.gov will not be considered comments on the proposed
rule and may not receive a response from EOIR. EOIR is not accepting
mailed comments at this time.
If you cannot submit your comment by using https://www.regulations.gov, please contact Jamee E. Comans, Assistant Director
for Policy, Office of Policy, Executive Office for Immigration Review,
by telephone at (703) 305-0289 (not a toll-free call) for alternate
instructions.
Pursuant to 5 U.S.C. 553(b)(4), a plain language summary of the
proposed rule is available in the rulemaking docket at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jamee E. Comans, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2500, Falls Church, Virginia 22041, telephone
(703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule via the method and by the deadline stated above. The
Department of Justice (``Department'') also invites comments that
relate to the economic, environmental, or federalism effects that might
result from the proposed rule. Comments that will provide the most
assistance to the Department will reference a specific portion of the
proposed rule, explain the reason for any recommended change; and
include data, information, or authority that supports such recommended
change.
Please note that all comments received are considered part of the
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONALLY
IDENTIFYING INFORMATION'' in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
https://www.regulations.gov.
Personally identifying information located as set forth above will
be placed in the agency's public docket file but not posted online.
Confidential business information identified and located as set forth
above will not be placed in the public docket file. The Department may
withhold from public viewing information provided in comments that it
determines may impact the privacy of an individual or is offensive. For
additional information, please read the Privacy Act notice that is
available via the link in the footer of https://www.regulations.gov. To
inspect the agency's public docket file in person, you must make an
appointment with the agency. Please see the FOR FURTHER INFORMATION
CONTACT paragraph above for agency contact information.

II. Legal Authority

The Department is issuing this NPRM pursuant to section 103(g) of
the INA, 8 U.S.C. 1103(g), as amended by the Homeland Security Act of
2002 (``HSA''), Public Law 107-296, 116 Stat. 2135. Under the HSA, the
Attorney General retains the authority to ``establish such regulations,
. . . issue such instructions, review such administrative
determinations in immigration proceedings, delegate such authority, and
perform such other acts as the Attorney General determines to be
necessary for carrying out'' the Attorney General's duties under the

[[Page 47980]]

INA. HSA 1102, 116 Stat. at 2273-74; INA 103(g)(2), 8 U.S.C.
1103(g)(2).
Further, the INA explicitly authorizes the Attorney General to
prescribe regulations related to Immigration Judges' authority to issue
civil money penalties for any contemptuous action or inaction during
the course of removal proceedings under section 240 of the INA, 8
U.S.C. 1229a. INA 240(b)(1), 8 U.S.C. 1229a(b)(1).

III. Background

In 1996, Congress codified Immigration Judges' authority to
sanction contemptuous action or inaction by imposing civil money
penalties. Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Public Law 104-208, 304, 110 Stat. 3009, 3009-589; see INA
240(b)(1), 8 U.S.C. 1229a(b)(1). The statute requires, however, that
the Attorney General promulgate regulations to define and delineate
that statutory authority.
In 2006, then-Attorney General Alberto Gonzales announced measures
designed to improve the performance of the Immigration Courts and the
Board of Immigration Appeals (``Board''). One measure directed EOIR to
``draft a new proposed rule that creates a strictly defined and clearly
delineated authority to sanction by civil money penalty an action (or
inaction) in contempt of an immigration judge's proper exercise of
authority.'' \1\ Attorney General Gonzales announced this measure
because ``Immigration judges should have the tools necessary to control
their courtrooms and to protect the adjudicatory system from fraud and
abuse.'' \2\
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\1\ Memorandum from the Attorney General for the Deputy Attorney
General, Assistant Attorney General for Legal Policy, Director of
the Executive Office for Immigration Review, and Acting Chief
Immigration Judge (Aug. 9, 2006), https://www.justice.gov/sites/default/files/ag/legacy/2009/02/10/ag-080906.pdf [https://perma.cc/V79E-T87Q].
\2\ Id.
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Despite Attorney General Gonzales's instruction and Departmental
efforts over time, the Department has not published a rulemaking
implementing ``a strictly defined and clearly delineated authority''
for Immigration Judges to impose a civil money penalty as a sanction
for contemptuous conduct. The Department has adopted regulations
establishing rules of professional conduct for practice before EOIR,
see 8 CFR 1003.101-.111, but that disciplinary process is initiated and
led by the EOIR disciplinary counsel. See generally 8 CFR 1003.105
(detailing discipline process). Thus, there are no existing mechanisms
for Immigration Judges presiding over proceedings to impose sanctions
when an individual engages in contemptuous conduct; if an attorney or
accredited representative engages in contemptuous conduct, the
Immigration Judge is limited to filing a disciplinary complaint in the
same manner as members of the general public. See 8 CFR 1003.104(a)(1).
Now, the Department is issuing this NPRM, which, if finalized,
would implement the contempt authority provided for Immigration Judges
under section 240(b)(1) of the INA, 8 U.S.C. 1229a(b)(1). The
implementation of Immigration Judges' authority to sanction
contemptuous conduct by civil money penalty will honor the framework
envisioned by Congress for Immigration Judges to control the
proceedings before them and help deter detrimental conduct that may
affect such proceedings.

IV. Description of the Proposed Rule

The Department proposes to add Subpart H--Civil Money Penalty for
Contemptuous Conduct Before an Immigration Judge to Title 8, Chapter V,
Part 1003 of the Code of Federal Regulations. Within this subpart, the
Department proposes to: (1) explain the purpose and exceptional nature
of the civil money penalty; (2) describe individuals who may be ordered
to pay a civil money penalty; (3) outline the types of contemptuous
conduct that may result in the imposition of a civil money penalty; (4)
provide procedural standards for the Immigration Judge, the individual,
and the Chief Immigration Judge to follow in the consideration of
contempt matters; (5) authorize and provide standards for appeals to
the Board; (6) provide guidelines for the payment of civil money
penalties, including consequences for failure to pay; and (7) ensure
oversight by EOIR management--primarily by the Chief Immigration
Judge--of Immigration Judges' use of their contempt authority.

A. Purpose of the Proposed Rule

This rule proposes regulations that would allow Immigration Judges
to use the contempt authority Congress provided for nearly 30 years
ago. See INA 240(b)(1), 8 U.S.C. 1229a(b)(1); 8 CFR 1003.121
(proposed). It continues to be the case that Immigration Judges should
have this important tool ``to control their courtrooms and to protect
the adjudicatory system from fraud and abuse.'' \3\ Despite Congress's
decision to provide contempt authority as a tool for Immigration
Judges, the absence of implementing regulations means that Immigration
Judges are currently unable to use this contempt authority to aid in
efficiently conducting and managing removal proceedings. While the
Department's intent to issue regulations to define and delineate the
contempt authority is longstanding,\4\ it is now imperative to do so to
ensure Immigration Judges can exercise contempt authority to
efficiently manage removal proceedings. Indeed, EOIR currently has a
backlog of over 3.5 million cases.\5\ Given the scope of this backlog,
it is crucial for Immigration Judges to have every tool available--
including the authority to impose civil money penalties--to control the
proceedings before them and address and deter conduct that prevents
efficient completion of removal proceedings.
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\3\ Memorandum from the Attorney General for the Deputy Attorney
General, Assistant Attorney General for Legal Policy, Director of
the Executive Office for Immigration Review, and Acting Chief
Immigration Judge 5 (Aug. 9, 2006), https://www.justice.gov/sites/default/files/ag/legacy/2009/02/10/ag-080906.pdf [https://perma.cc/V79E-T87Q].
\4\ See, e.g., Civil Money Penalty for Actions in Contempt of an
Immigration Judge's Proper Exercise of Authority, RIN 1125-AB02,
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=1125-AB02 [https://perma.cc/7YFD-PXTV] (showing inclusion of this rulemaking in the Spring 2020
Unified Agenda, which identifies the Department's planned regulatory
actions).
\5\ EOIR, Adjudication Statistics: Pending Cases, New Cases, and
Total Completions (Apr. 22, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/J5L7-EGLV].
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Further, in addition to implementing an Immigration Judge's
statutory authority, such a measure is consistent with the
Administration's goal of combatting fraud and abuse of legal processes,
including in the immigration system, which may lead to delays in the
adjudication of cases before the agency.\6\ Accordingly, if finalized,
the proposed rule will help to promote the fair, efficient, and
consistent adjudication of immigration proceedings by allowing
Immigration Judges to use civil money penalties to deter behavior that
delays, disrupts, or obstructs the due course of immigration
proceedings. 8 CFR 1003.122(a) (proposed).
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\6\ See Presidential Memorandum, Preventing Abuses of the Legal
System and the Federal Court (Mar. 22, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/ [https://perma.cc/KVC6-FE7F].
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B. Covered Individuals

The proposed rule defines the three categories of individuals upon
whom a civil money penalty may be imposed. See 8 CFR 1003.123(a)
(proposed). Specifically, the proposed rule would allow for a civil
money penalty to be

[[Page 47981]]

imposed upon the following individuals directly affiliated with
proceedings before the Immigration Court: (1) an attorney (as defined
at 8 CFR 1001.1(f)) or representative (as defined at 8 CFR 1001.1(j))
who has filed with the Immigration Court either a Notice of Entry of
Appearance as Attorney or Representative before the Immigration Court
(Form EOIR-28) or a Notice of Entry of Limited Appearance for Document
Assistance before the Immigration Court (Form EOIR-61); (2) aliens who
are the subject of the proceedings before the Immigration Judge; and
(3) witnesses in any court proceedings before the Immigration Judge,\7\
other than witnesses who are current employees or contractors of the
Federal government acting in their official capacity. Id.
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\7\ This includes witnesses who are present in the courtroom,
either physically or remotely through telephone or video-
teleconferencing equipment, including during internet-based
hearings. 8 CFR 1003.123(a)(3) (proposed).
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Under the proposed rule, an Immigration Judge would not be able to
propose a civil money penalty on any other category of individual,
including attorneys acting in their official capacity representing the
Federal Government. See 8 CFR 1003.123(b) (``Individuals not subject to
civil money penalties.'') (proposed). This exclusion is analogous to
the approach of the EOIR disciplinary rules. See 8 CFR 1003.101(b)
(excluding practitioners who represent the government from EOIR's
authority to impose disciplinary sanctions for attorney misconduct).
Importantly, government attorneys who appear in Immigration Court are
subject to the jurisdiction of the Office of the Inspector General for
the Department of Homeland Security (``DHS'') and, if warranted, will
be disciplined pursuant to DHS's attorney discipline procedures. See 8
CFR 292.3(i). Moreover, the Department is wary of creating a regulatory
structure where one Executive agency may impose money sanctions on
individuals engaging in official representation of another Executive
agency. See 5 CFR 2635.106(b) (``It is the responsibility of the
employing agency to initiate appropriate disciplinary or corrective
action in individual cases.'').
For the same reasons, the Department does not propose to apply
civil money penalties on witnesses who are current employees or
contractors of the Federal government acting in their official
capacity. Any otherwise contemptuous conduct made by such Federal
employees or contractors in their official capacity is more properly
addressed by their employing or contracting agency.

C. Covered Conduct

The Department proposes to authorize Immigration Judges to propose
a civil money penalty as a sanction only for specified types of
contemptuous conduct. See 8 CFR 1003.124 (proposed). Specifically, the
only five types of conduct that would be subject to a civil money
penalty under the proposed rule are: (1) attorneys' and
representatives' repeated failure to appear or to appear on time for
scheduled hearings or pre-hearing conferences, including those held via
telephone or video conferencing, without good cause; (2) repeated
failure to comply with Immigration Judge orders to timely file
pleadings, applications, pre-hearing statements, evidentiary
submissions, or any other filings, without good cause; (3) disorderly
or abusive behavior or language in and around the courtroom and before
the Immigration Judge or abusive language in any filing with the
Immigration Court; (4) knowingly or recklessly making a false statement
of material fact or law, or knowingly or recklessly offering false
evidence, and for attorneys and representatives, failing to take
appropriate remedial measures after becoming aware of the falsity of
previous material statements or evidence; and (5) willfully misleading,
misinforming, threatening, or deceiving any person (including a party
to a case or an officer or employee of the Department), concerning any
relevant matter relating to a case. 8 CFR 1003.124(a)(1)-(5)
(proposed). Both actions and inactions may constitute contemptuous
conduct. See 8 CFR 1003.124(b) (proposed).
When determining whether good cause exists for the failure to
appear or to appear on time, 8 CFR 1003.124(a)(1) (proposed), or for
the failure to comply with filing orders, 8 CFR 1003.124(a)(2)
(proposed), the proposed rule would require the adjudicator to consider
all relevant information, similar to other uses of the ``good cause''
standard in immigration proceedings. See, e.g., Dugboe v. Holder, 644
F.3d 462, 471 (6th Cir. 2011) (applying a multi-factor balancing test
when adjudicating a change of venue request under the ``good cause''
standard); Matter of L-A-B-R-, 27 I&N Dec. 405, 406 (A.G. 2018)
(applying a ``multifactor analysis'' when adjudicating a continuance
request under the ``good cause'' standard).
In considering whether an attorney or representative is repeatedly
failing to appear or timely appear at hearings, as stated in 8 CFR
1003.124(a)(1) (proposed), likely relevant factors would include, but
not be limited to, whether proper notice of the hearing was provided;
whether there were technical difficulties if appearing by telephone or
videoconferencing; emergency medical or familial issues; or
transportation issues beyond normal traffic, such as issues resulting
from severe weather, among others. In considering whether an individual
is repeatedly failing to timely file documents pursuant to an
Immigration Judge's order, as stated in 8 CFR 1003.124(a)(2)
(proposed), likely relevant factors would include, but not be limited
to, technical difficulties with filing if filing electronically;
emergency medical or familial issues; or other similar, external
factors that repeatedly prevented the individual from filing documents
pursuant to the Immigration Judge's order.
Similarly, the term ``repeated failure,'' as used in 8 CFR
1003.124(a)(1) and (2) (proposed), is intended to capture persistent
and sustained failures that delay, disrupt, or obstruct the
adjudicatory process. Immigration Judges would consider the total
number of failures, their proximity to each other, the severity of the
failures (e.g., whether the failure is being a few minutes late versus
not appearing at all), and the degree of actual prejudice to the
conduct of the proceedings, as well as any other relevant factors. The
Department expects that, ordinarily, an attorney or representative will
not confront these types of external factors on a regular basis such
that it would result in repeated inexcusable delays or absences.
Additionally, ``disorderly or abusive behavior or language in and
around the courtroom and before the Immigration Judge,'' as stated in 8
CFR 1003.124(a)(3) (proposed), includes, but is not limited to,
behavior or language that impugns the integrity of the court, unfairly
maligns the competence or impartiality of the presiding Immigration
Judge, is defamatory or slanderous, or inappropriately accosts any
individual in the courtroom.\8\ See 8 CFR 1003.124(a)(3) (proposed).
These types of abusive language in any filing with the Immigration
Court also constitute sanctionable conduct. Id.
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\8\ To the extent that an attorney or representative has
concerns about an Immigration Judge's conduct, they may raise such
concerns by filing a complaint with EOIR's Judicial Conduct and
Professionalism Unit. See EOIR PM 26-03, Judicial Conduct and
Professionalism (Mar. 20, 2026), https://www.justice.gov/eoir/media/1432036/dl?inline [https://perma.cc/HZ6F-EJSN].
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The fourth type of sanctionable conduct includes knowingly or
recklessly making a false statement of material fact or law or offering
false evidence. See 8 CFR 1003.124(a)(4)

[[Page 47982]]

(proposed). Importantly, for attorneys and representatives, failing to
take appropriate remedial measures after receiving notice of such
falsity, or when the attorney or representative reasonably should have
known of the falsity, of either a previous statement of material law or
fact or previously offered material evidence, encompasses the same
conduct that is sanctionable for practitioners under 8 CFR
1003.102(c).\9\ Id.
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\9\ Currently, 8 CFR 1003.102(c) notes a practitioner's
obligation to take remedial measures regarding false evidence, but
not regarding false statements of material law or fact. That
distinction has no basis in the professional responsibility
obligations of practitioners. See, e.g., Model Rule of Prof. Conduct
3.3(a)(1) (``A lawyer shall not knowingly make a false statement of
fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the
lawyer.'' (emphasis added)). Accordingly, and consistent with the
bases for contemptuous conduct subject to a civil money penalty, the
proposed rule would correct that oversight. See 8 CFR 1003.102(c)
(proposed).
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The last type of sanctionable conduct proposed by the rule includes
willfully misleading, misinforming, threatening, or deceiving any
person (including a party to a case or an officer or employee of the
Department), concerning any relevant matter relating to a case, and
applies to any individual who may be subject to sanctions by civil
money penalty. 8 CFR 1003.124(a)(5) (proposed).
Overall, these sanctionable forms of conduct directly interfere
with the Immigration Courts' ability to conduct proceedings in a fair
and efficient manner. To ensure that the contempt authority works to
promote the efficient and fair adjudication of proceedings, the
proposed rule specifies that an Immigration Judge will only be able to
initiate the proposed civil money penalty process if the Immigration
Judge makes a prima facie determination, based on the circumstances of
the case, that the charged conduct did, in fact, delay, disrupt, or
obstruct the adjudicatory process. 8 CFR 1003.124(a) (proposed).
Like the standards applied in Federal courts, these standards are
applicable to conduct that occurs inside or outside of the courtroom.
See 18 U.S.C. 401 (authorizing a court to sanction misbehavior that
occurs ``in its presence or so near thereto as to obstruct the
administration of justice,'' for ``[m]isbehavior of any of its officers
in their official transactions,'' and for ``[d]isobedience or
resistance to its lawful writ, process, order, rule, decree, or
command''); see also Int'l Union, United Mine Workers of Am. v.
Bagwell, 512 U.S. 821, 833 (1994) (explaining that certain contemptuous
conduct occurring outside of the courtroom ``impede[s] the court's
ability to adjudicate the proceedings before it and thus touch[es] upon
the core justification for the contempt power''). In this proposed
rule, for example, the disorderly or abusive behavior may occur in the
court waiting room, hallway, or at the filing window. Disorderly or
abusive language in written filings may also serve as the basis for
sanctions.

D. Process for Sanctioning by Civil Money Penalty

The Department is also proposing a detailed process for Immigration
Judges to follow to impose sanctions for contemptuous conduct by civil
money penalty. See 8 CFR 1003.125 (``Required warning before initiating
the civil money penalty process.''); 1003.126 (``Initiation of the
civil money penalty process.''); and 1003.127 (``Decision by the Chief
Immigration Judge or designee.'') (proposed). These proposed procedures
ensure that the imposition of a civil money penalty is used as an
exceptional tool that should be rarely invoked. See, e.g., Nelson v.
Steiner, 279 F.2d 944, 948 (7th Cir. 1960) (``The power to punish for
contempt is to be sparingly used . . . .'' (citation omitted)).
1. Warning of Violation Before Imposition of Civil Money Penalty
In general, the proposed rule requires the Immigration Judge to
provide the covered individual with a clear and unambiguous warning
that a violation has occurred before initiating the civil money penalty
process. 8 CFR 1003.125(a) (proposed); cf. Fed. R. Crim. P. 42(a)(1)
(notice requirement applies). If the covered individual engages in the
same misconduct within one year from the date of issuance of the
warning, no further warning is required before initiating the civil
money penalty process. 8 CFR 1003.125(a), 1003.126(a) (proposed).
Procedurally, the Immigration Judge will provide either an oral or
written warning, depending on whether the individual is present before
the Immigration Judge when the conduct occurs. 8 CFR 1003.125(b)
(proposed). If an oral warning is given, the Immigration Judge must
memorialize the warning in writing as soon as practicable. Id. Any
written warning or written memorialization of an oral warning will then
be served on the individual. Id.
Substantively, the warning must describe the specific conduct;
explain why the conduct is sanctionable under the applicable contempt
regulations; notify the individual that continuing to engage in the
same conduct may result in the initiation of contempt proceedings and
the imposition of a civil money penalty; and notify the individual that
they may respond to the warning within 10 days of issuance of the
warning. 8 CFR 1003.125(c), (d) (proposed).
This warning will ensure that the individual is provided clear and
unambiguous notice of their conduct and the potential effects of
continuing that conduct. 8 CFR 1003.125(a), (c) (proposed). To achieve
this purpose, the Immigration Judge should provide the warning as close
in time as reasonably possible to the contemptuous conduct. 8 CFR
1003.125(a)-(b) (proposed). Moreover, the Immigration Judge's warning
must detail the specific conduct that has occurred, and a standing
order or a generic discussion not tied to the specific conduct at issue
does not satisfy the requirement of a warning under this proposed
rule.\10\ 8 CFR 1003.125(c)(1) (proposed).
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\10\ Nothing in this proposed rule would prohibit an Immigration
Judge from issuing a standing order regulating conduct within his or
her courtroom, as long as the order is consistent with applicable
law and policy. See EOIR Policy Memorandum 20-09, The Immigration
Court Practice Manual and Orders (Feb. 13, 2020), https://www.justice.gov/eoir/reference-materials/OOD2009/dl [https://perma.cc/76TJ-TMKP]. Nonetheless, while the violation of a standing
order may serve as evidence of contemptuous conduct, the presence of
a standing order itself is insufficient to constitute a warning
necessary prior to seeking to impose a civil money penalty.
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Once a warning has been issued, an individual may, but is not
required to, respond to the Immigration Judge's warning, either on the
record orally at the time of the warning or in writing within 10 days
of the issuance of the warning. 8 CFR 1003.125(d) (proposed). Such
response, if any, will be included in the Record of Proceeding for the
relevant case in which the contemptuous conduct occurred, as well as
the separate contempt Record of Proceeding if a civil money penalty
process is subsequently initiated.\11\ Id. Any contemptuous response to
a warning may also be sufficient to

[[Page 47983]]

initiate the civil money penalty process. Id.
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\11\ When an Immigration Judge initiates a civil money penalty
process based on a contempt allegation, the Immigration Court will
create a contempt Record of Proceeding, separate from the underlying
case Record of Proceeding, and ensure that relevant matters in the
underlying immigration proceeding(s) that gave rise to the
initiation of the civil money penalty are entered or described in
the contempt Record of Proceeding. 8 CFR 1003.126(e) (proposed). Any
oral statements given on the record, including any oral response to
the Immigration Judge's warning, will be transcribed for inclusion
in the contempt Record of Proceeding. Id. Any oral statements that
were not recorded must be summarized in writing by the Immigration
Judge for inclusion in the contempt Record of Proceeding. Id.
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If the individual continues to engage in the same contemptuous
conduct after the warning is given, the proposed rule requires the
Immigration Judge to make a finding on the record--which can be an oral
statement on the record or a written statement added to the Record of
Proceeding--that such conduct has continued to occur. 8 CFR 1003.125(e)
(proposed).
Additionally, the warning would not be limited to the particular
proceeding in which the initial contemptuous conduct occurred but,
rather, would apply across all future proceedings. 8 CFR 1003.125(a)
(proposed). For example, if an Immigration Judge issues a warning to an
individual for engaging in contemptuous conduct and that case then
changes venue to another Immigration Court, that warning--which will
have been made or memorialized in writing and contained within the
Record of Proceeding of the underlying case--would still be a valid
foundation for the initiation of the civil money penalty process in the
new Immigration Court if the individual continues to engage in the same
contemptuous conduct that was the subject of the warning. See id.
Similarly, as another example, if an individual is warned about the use
of abusive language under Sec. 1003.124(a)(3) (proposed) in a specific
proceeding, that warning would be effective for any further abusive
conduct under Sec. 1003.124(a)(3) (proposed) by that individual in any
other proceedings, even proceedings unrelated to the initial one.
Furthermore, under Sec. 1003.125(a) (proposed), the Immigration
Judge will not be required to issue a warning where a previous order
imposing a civil money penalty had been issued on a covered individual
for continuing to engage in the same type of contemptuous conduct. In
such instances, the previous order will serve as a warning for the
imposition of future civil money penalties if the individual continues
to engage in the same conduct within one year of the previous order.
2. Notice of Intent To Impose Civil Money Penalty
If, after issuing a warning, the Immigration Judge makes a finding
of continued contemptuous conduct on the record, the Immigration Judge
may initiate the civil money penalty process. See 8 CFR 1003.126(a)
(proposed).
Under the proposed rule, the Immigration Judge initiates the civil
money penalty process by serving a Notice of Intent to Impose Civil
Money Penalty (``CMP Notice'') on the individual. 8 CFR 1003.126(b)(1)
(proposed). The CMP Notice may be served on the individual by personal
service or mail, and if the individual is a practitioner before EOIR,
the CMP Notice may also be served electronically using the
practitioner's email address provided through eRegistry. Id. This
process must be initiated as soon as practicable after a finding on the
record of continued contemptuous conduct, and in no case later than one
year after the most recent related warning. 8 CFR 1003.126(a)
(proposed).
The CMP Notice must include the following items: (1) the name and
address of the individual; (2) a factual description of the conduct in
question; (3) the alleged charge or charges of contemptuous conduct;
(4) an explanation of how the conduct in question delayed, disrupted,
or obstructed the adjudicatory process; (5) a brief description of any
warning(s) provided; and (6) the Immigration Judge's proposed civil
money penalty amount. 8 CFR 1003.126(b)(2) (proposed).
The CMP Notice will also inform the individual of the procedures
for the civil money penalty process. 8 CFR 1003.126(b)(3) (proposed).
This will include informing the individual that the matter is being
referred to the Chief Immigration Judge for a decision and that he or
she has the right to file a response with the Chief Immigration Judge
within 30 days of issuance of the CMP Notice; the right to file one
motion to extend the time to respond for up to 7 days for good cause;
and the right to be represented at the individual's own expense. 8 CFR
1003.126(b)(3)(i)-(iv) (proposed). The individual's response will be
required to include the following information: (1) the individual's
name; (2) the contempt proceeding case number; (3) the individual's A-
number \12\ or EOIR identification number (if any); \13\ (4) the
individual's current physical and email addresses; (5) the individual's
position on the charge(s) in the CMP Notice; and (6) any written or
documentary evidence that the individual wishes to provide in support
of the individual's position. 8 CFR 1003.126(d) (proposed). The CMP
Notice, any responses to the CMP Notice, and related filings will be
included in the contempt Record of Proceeding. 8 CFR 1003.126(e)
(proposed).
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\12\ An Alien Registration Number (``A-number'') is a unique
identification number that DHS assigns to an alien.
\13\ An EOIR identification number (``EOIR ID'') is an
identifier used by EOIR for attorneys and fully accredited
representatives to indicate that such an individual has registered
with EOIR. EOIR requires attorneys and fully accredited
representatives to register with the agency to practice before the
Immigration Courts and the Board. To receive an EOIR ID, attorneys
and fully accredited representatives must (1) register online
through the eRegistry portal, and (2) appear in person at an
approved location to present photo identification for identity
validation. Upon completion of both steps, EOIR issues a unique EOIR
ID to the individual by email. For further information, see EOIR,
Attorneys and Fully Accredited Reps--How to Register (Feb. 2024),
https://www.justice.gov/eoir/media/1358206/dl?inline [https://perma.cc/F3M3-N3SM].
---------------------------------------------------------------------------

The proposed rule's inclusion of this 30-day response period, as
well as the earlier warning and CMP Notice requirements, will ensure
that the individual is provided notice of the contemptuous behavior and
an opportunity to be heard. See generally Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 313 (1950) (explaining that notice and an
opportunity to be heard must be ``appropriate to the nature of the
case''). These contempt proceedings are not ``required by statute to be
determined on the record after opportunity for an agency hearing'' and,
thus, are not subject to the Administrative Procedure Act's
requirements for formal adjudications under 5 U.S.C. 554, 556-57.
Accord INA 240(b)(1), 8 U.S.C. 1229a(b)(1) (not requiring specific
hearing procedures for Immigration Judges' contempt authority).
However, the proposed rule comports with general due process
principles, which require, at a minimum, notice and an opportunity to
respond. See Mullane, 339 U.S. at 314. The CMP Notice will ensure that
the individual is made aware of the allegations against him or her. The
CMP Notice will also inform the individual that he or she has the right
to representation at no expense to the government by an attorney or
other representative. 8 CFR 1003.126(b)(3)(iv) (proposed).
Additionally, to determine the penalty amount for the CMP Notice,
the proposed rule provides a penalty schedule and relevant factors for
the Immigration Judge to consider. See 8 CFR 1003.126(c) (proposed).
Lastly, the proposed rule requires all filings by the individual to
comply with existing Immigration Court filing procedures. See 8 CFR
1003.126(f) (proposed); see also 8 CFR 1003.31-33 (requiring certain
document sizes and English language usage or translation, among other
requirements).
3. Decision by the Chief Immigration Judge or Designee
Under the proposed rule, decisions on civil money penalties would
be made by the Chief Immigration Judge or his or her designee.
Jurisdiction vests,

[[Page 47984]]

including over all motions filed, with the Chief Immigration Judge once
the CMP Notice is referred to him or her. 8 CFR 1003.127(a) (proposed).
The Chief Immigration Judge may not remand the CMP Notice to the
Immigration Judge. 8 CFR 1003.127(b) (proposed).
Once the individual files a response to the CMP Notice, or the 30-
day response period expires, the Chief Immigration Judge will then
issue a written decision determining whether there is clear and
convincing evidence that the individual engaged in contemptuous conduct
that delayed, disrupted, or obstructed the adjudicatory process. See 8
CFR 1003.127(b)-(d) (proposed). The Chief Immigration Judge will only
be able to issue an order finding the individual in contempt and
imposing a civil money penalty if clear and convincing evidence
demonstrates: (1) that the person charged is a covered individual
against whom a civil money penalty may be imposed; (2) the conduct
described in the CMP Notice did in fact occur; (3) the conduct
described in the CMP Notice falls within the scope of 8 CFR 1003.124(a)
(proposed); and (4) the Immigration Judge properly provided a warning,
time to respond to the warning, and the CMP Notice. 8 CFR
1003.127(d)(1) (proposed).
In making this decision, the proposed rule limits the ability of
the Chief Immigration Judge to engage in additional factfinding by only
allowing for the consideration of the contempt Record of Proceeding as
described in Sec. 1003.126(e) (proposed). 8 CFR 1003.127(b)
(proposed).
If the Chief Immigration Judge determines that these requirements
were met, the order is required to specify the civil money penalty
amount imposed and provide instructions regarding the payment of the
penalty. 8 CFR 1003.127(d)(2) (proposed). If, on the other hand, the
Chief Immigration Judge determines that the evidence is insufficient to
impose a civil money penalty, the Chief Immigration Judge will issue an
order dismissing the CMP Notice with prejudice, and no further review
is provided. 8 CFR 1003.127(d)(3)-(4) (proposed).
The Chief Immigration Judge or the designee must serve a copy of
his or her order on the individual or, if represented, the individual's
attorney or representative. 8 CFR 1003.127(d)(5) (proposed). If the
individual is represented by an attorney or representative, the Chief
Immigration Judge's order will be served electronically using the email
address that the individual's attorney or representative has provided
through eRegistry. Id. If the individual is not represented, the Chief
Immigration Judge's order may be served on the individual by personal
service or mail. Id. If the unrepresented individual is a practitioner
before EOIR, service may also be made electronically using the
practitioner's email address provided through eRegistry. Id. These
methods of service are consistent with general EOIR practice. See 8 CFR
1003.32(b); 8 CFR 1003.37.
The Chief Immigration Judge also may designate a permanent Deputy
Chief Immigration Judge to conduct such a review in his or her place,
provided that such designee (1) is not the present first-line
supervisor of the Immigration Judge who issued the CMP Notice; and (2)
is not conducting a review involving an alien who has previously
appeared in immigration proceedings before the designee. 8 CFR
1003.127(a) (proposed). If the Chief Immigration Judge is the
Immigration Judge who issued the CMP Notice, the EOIR Director will
designate a senior adjudicator outside of the Office of the Chief
Immigration Judge to make a decision. Id.
4. Amount of the Civil Money Penalty
In all cases, the civil money penalty ordered will be based on the
penalty schedule included in the proposed rule. See 8 CFR
1003.126(c)(1) (proposed). After considering all relevant factors, the
Chief Immigration Judge will be able to issue a penalty of an amount
according to the following ranges: $1,000 to $1,500 for a first
contempt order; $1,500 to $2,500 for a second contempt order; and
$2,500 to $3,500 for any subsequent contempt orders. Id. The Department
believes these amounts properly account for the important purposes
served by the statutory contempt authority; are sufficient, in
combination with other sanctions and procedures that may be available
under existing laws and regulations, to deter the types of contemptuous
conduct covered in this proposed rule; and are only issuable in the
context of the significant procedural protections put into place,
including official warnings, a civil penalty process, and
administrative appeal availability.
These ranges will also allow the penalty amount to be properly
tailored to the conduct in question. Relevant factors to be considered
include the number of offenses, the harm resulting from the
sanctionable conduct, the remarkable nature of the conduct, and the
deterrent effect of the penalty. 8 CFR 1003.126(c)(2) (proposed). In
ordering a civil money penalty, the Chief Immigration Judge will not be
able to increase the penalty amount stated in the CMP Notice. 8 CFR
1003.127(d)(2) (proposed).
The Department considered leaving the civil money penalty amounts
to the Immigration Judge's discretion, similar to the discretion
afforded to Federal court judges. See generally Paramedics
Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645, 657 (2d Cir. 2004) (noting that, for civil contempt purposes,
judges have ``broad discretion'' to set a penalty to coerce
compliance). However, the Department determined that providing a
generally applicable penalty schedule will better promote consistency
amongst the Immigration Courts.
Separately, the Department notes that, in the future, it will
review the penalty amounts for any potential further adjustment,
including periodically to account for inflation. Accord Federal Civil
Monetary Penalties Inflation Adjustment Act of 1990, Public Law 101-
410, sec. 4, as amended, (28 U.S.C. 2461 note) (requiring Federal
agencies to adjust statutory penalties for inflation annually to
maintain their deterrent effect).

E. Appeals

The rule proposes to include an appeal process to provide an
additional layer of procedural protection to individuals found in
contempt. See 8 CFR 1003.128 (``Appeals.'') (proposed). Following the
Chief Immigration Judge's order imposing a civil money penalty, the
individual found in contempt will be able to challenge that order by
filing an appeal with the Board. Id. The Board will review the Chief
Immigration Judge's decision consistent with 8 CFR 1003.1(d)(3),
similar to how it reviews decisions of adjudicating officials in
disciplinary proceedings involving practitioners or recognized
organizations. See 8 CFR 1003.1(b)(13); 8 CFR 1003.106(c). The Chief
Immigration Judge's decision dismissing the CMP Notice with prejudice
is not subject to appeal. 8 CFR 1003.127(d)(4) (proposed). The Chief
Immigration Judge's order becomes a final agency decision unless the
individual files a timely notice of appeal. 8 CFR 1003.127(e)
(proposed). The appeal is subject to a proposed $675 filing fee, 8 CFR
1103.7(b)(1) (proposed), which is the same amount as the fee currently
charged for appeals from a decision of an adjudicating official in a
practitioner disciplinary case under section 286(m) of the INA, 8
U.S.C. 1356(m), as discussed in Section V.C of this preamble. To be
timely, the appeal must be filed within 10 days from the date of the
order and include the required filing

[[Page 47985]]

fee or fee waiver form. 8 CFR 1003.128(a) (proposed).
As part of the proposed appeal process, the individual is required
to simultaneously serve a copy of the appeal and other related filings
on the EOIR General Counsel. 8 CFR 1003.128(a) (proposed). EOIR's
General Counsel, or the EOIR disciplinary counsel where so designated,
will represent the agency on appeal and will be permitted to submit a
brief under the briefing schedule issued by the Board. Id.; 8 CFR
1003.3(c)(1) (proposed). The Board will set a simultaneous briefing
schedule with briefs due from both parties within 20 days of the Board
order setting the schedule and in no case more than 35 days after the
appeal was filed. 8 CFR 1003.3(c)(1) (proposed). Following review, the
Board will issue a written decision affirming, modifying, or vacating
with prejudice the civil money penalty. See 8 CFR 1003.128(d)(2)
(proposed). The Board will not be permitted to set a penalty amount
above the amount stated in the CMP Notice or to remand the case for
further proceedings.\14\ Id. The Board's order will become the final
agency decision on the date the order is issued. Id.
---------------------------------------------------------------------------

\14\ If the individual subject to a civil money penalty is an
alien described in 8 CFR 1003.123(a)(2) (proposed) and either the
Chief Immigration Judge or his or her designee or the Board receives
information that the alien has been removed prior to the issuance of
a decision, then, as appropriate, the Chief Immigration Judge or his
or her designee will dismiss the CMP Notice or the Board will vacate
the civil money penalty. 8 CFR 1003.127(d)(3), 1003.128(d)(2)
(proposed).
---------------------------------------------------------------------------

F. Other Provisions

1. Limited Sanction
The proposed rule includes instructions to EOIR's adjudicators that
the contempt authority is an exceptional tool that should be used
sparingly. See 8 CFR 1003.122(b) (proposed). The proposed rule also
explains that Immigration Judges should attempt to deter or redress
contemptuous conduct through other reasonably available means,
resorting to the initiation of the civil money penalty process only
after other reasonably available means have failed to restore proper
courtroom conduct. 8 CFR 1003.122(b) (proposed).
The proposed rule also explains that the contempt authority is
independent of other sanctions or procedures. 8 CFR 1003.122(c)
(proposed). Those include, but are not limited to, attorney or
representative discipline pursuant to subpart G of 8 CFR part 1003;
admitting evidence described in a pre-hearing statement as unopposed
when evidentiary objections to the pre-hearing statement are required
but not timely received, as provided in 8 CFR 1003.21(c); and deeming
the opportunity to file an application or document as waived or
abandoned, see, e.g., 8 CFR 1003.31(h).
Lastly, the proposed rule explicitly states that contempt authority
under proposed subpart H of 8 CFR part 1003, does not apply to subpoena
enforcement pursuant to 8 CFR 1003.35(b). 8 CFR 1003.122(d) (proposed).
2. Payment of the Civil Money Penalty
The proposed rule includes instructions regarding the deadline for
paying civil money penalties and the consequences of failing to pay a
civil money penalty as ordered. 8 CFR 1003.129 (proposed). An
individual found in contempt will be required to pay the penalty within
30 days of the Board's order becoming final. 8 CFR 1003.129(a)
(proposed). In other words, if an individual does not file an appeal,
the individual will be required to pay the penalty within 30 days of
the Chief Immigration Judge's order becoming final, or if an individual
files an appeal, within 30 days of the Board's decision affirming or
modifying a civil money penalty.\15\ Id.
---------------------------------------------------------------------------

\15\ If the individual seeks further Federal court review of the
Board's order imposing a civil money penalty for contempt, the
payment would then be due within 30 days of a final court decision
upholding the civil money penalty.
---------------------------------------------------------------------------

If a practitioner (attorney or accredited representative) fails to
timely pay a required civil money penalty, the EOIR disciplinary
counsel will move to immediately suspend the practitioner from practice
before EOIR. 8 CFR 1003.129(c) (proposed). Upon proof of payment of the
penalty, the practitioner will then be able to move to have the
suspension set aside. 8 CFR 1003.129(c)(4) (proposed).
3. Oversight
The proposed rule specifically instructs the Chief Immigration
Judge to maintain oversight over Immigration Judges' use of the civil
money penalty authority afforded by section 240(b)(1) of the INA, 8
U.S.C. 1229a(b)(1), and proposed subpart H of 8 CFR part 1003. See 8
CFR 1003.130 (proposed).
Consistent with preexisting regulatory provisions, Immigration
Judges will also receive appropriate training and guidance on the
proper use of their authority to sanction by civil money penalty. See,
e.g., 8 CFR 1003.0(b)(1)(vii) (establishing that the Director shall
have the authority to ``[p]rovide for comprehensive, continuing
training and support for Board members, immigration judges, and EOIR
staff in order to promote the quality and consistency of
adjudications''), 1003.9(b)(2). Further, the proposed rule reiterates
that an Immigration Judge's exercise of the authority to issue a CMP
Notice is subject to the supervision of the Chief Immigration Judge;
that the Chief Immigration Judge must conduct periodic reviews of that
authority; and that, after consultation with the Director, the Chief
Immigration Judge may suspend any Immigration Judge's exercise of that
authority for up to 30 days if that Immigration Judge has improperly
applied or misused that authority. 8 CFR 1003.130 (proposed). These
provisions are consistent with the Chief Immigration Judge's general
authority to oversee Immigration Court operations and the authority to
make reports and inspections and take corrective action. 8 CFR
1003.9(b)(4). Any such suspension of an Immigration Judge's contempt
authority by the Chief Immigration Judge will be conducted through a
standing order.\16\ 8 CFR 1003.130 (proposed).
---------------------------------------------------------------------------

\16\ The Chief Immigration Judge's use of the authority to issue
a CMP Notice will be subject to the supervision of the Director. 8
CFR 1003.0(b); 28 CFR 0.115(a). The Director will conduct periodic
reviews of that authority by the Chief Immigration Judge and may
suspend the Chief Immigration Judge's exercise of that authority for
up to 30 days if the authority has been improperly applied or
misused. The proposed rule authorizes the Director to issue a
standing order to memorialize any such suspension of the Chief
Immigration Judge's contempt authority. 8 CFR 1003.130 (proposed).
---------------------------------------------------------------------------

To ensure further oversight, the proposed rule makes clear that
complaints or allegations of misconduct regarding the threat or
exercise of authority by an Immigration Judge should be directed to the
Immigration Judge's supervisor, EOIR's Judicial Conduct and
Professionalism Unit, or the Department of Justice Office of
Professional Responsibility (``OPR''). See 8 CFR 1003.109 (proposed).
In doing so, the proposed rule revises 8 CFR 1003.109 to make clear
that complaints regarding the behavior of EOIR adjudicators, including
Immigration Judges, need not be directed solely to OPR and may be
directed to the adjudicator's supervisor or to EOIR's Judicial Conduct
and Professionalism Unit. Id. This clarification is consistent with
longstanding practice; \17\ guidance from former Attorney General
Alberto

[[Page 47986]]

Gonzales; \18\ and other regulatory authority.\19\
---------------------------------------------------------------------------

\17\ See EOIR, Judicial Complaint Process (Feb. 2023), https://www.justice.gov/eoir/page/file/1100946/download [https://perma.cc/Q4H9-SG9Q].
\18\ See Memorandum from the Attorney General for the Deputy
Attorney General, Assistant Attorney General for Legal Policy,
Director of the Executive Office for Immigration Review, and the
Acting Chief Immigration Judge (Aug. 9, 2006) (directing EOIR to
develop an adjudicator complaint process that clearly defines the
roles of EOIR, OPR, and the Office of the Inspector General in
handling adjudicator complaints), https://www.justice.gov/sites/default/files/ag/legacy/2009/02/10/ag-080906.pdf [https://perma.cc/V79E-T87Q].
\19\ See, e.g., 8 CFR 1003.0(b)(1)(viii) (instructing the
Director to ``[i]mplement a process for receiving, evaluating, and
responding to complaints of inappropriate conduct by EOIR
adjudicators'').
---------------------------------------------------------------------------

4. Professional Conduct for Practitioners
``Engag[ing] in contumelious or otherwise obnoxious conduct'' is
already a ground for practitioner discipline. 8 CFR 1003.102(g). The
proposed rule clarifies--consistent with the Department's previous
statements regarding contempt proceedings and practitioner discipline
\20\--that contumelious conduct includes conduct for which a civil
money penalty has been assessed under proposed subpart H of 8 CFR part
1003. 8 CFR 1003.102(g) (proposed). The rule also proposes to add a
ground for practitioner discipline for repeatedly failing to pay any
ordered civil money penalty to promote compliance with such orders. 8
CFR 1003.102(x) (proposed).
---------------------------------------------------------------------------

\20\ See Professional Conduct for Practitioners--Rules and
Procedures, 65 FR 39513, 39518-19 (Jun. 27, 2000) (``It is expected
that the contempt regulations, once published, will provide that a
practitioner can be disciplined under the Professional Conduct Rules
when the practitioner has been sanctioned for contemptuous conduct
by an Immigration Judge pursuant to 8 U.S.C. 1229a(b)(1). A finding
of contempt will become a prerequisite to the imposition of
disciplinary action pursuant to this subsection.'').
---------------------------------------------------------------------------

G. Effective Date

The provisions of the proposed rule would apply only to conduct in
the Immigration Courts on or after the effective date of the final
rule.

V. Regulatory Requirements

A. Regulatory Flexibility Act

The Department has reviewed this proposed regulation in accordance
with the Regulatory Flexibility Act (``RFA''). See 5 U.S.C. 605(b). As
proposed, this rule regulates attorneys and accredited representatives,
which qualify as ``small entities'' under the RFA. See 5 U.S.C. 601(3)-
(4), (6). However, the Department has determined that the proposed rule
will not have a significant economic impact on a substantial number of
small entities. As indicated in the proposed rule, the imposition of a
civil money penalty is intended to be an extraordinary sanction that is
used infrequently in response to misconduct occurring before an
Immigration Judge.

B. Unfunded Mandates Reform Act of 1995

The proposed 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 (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, codified at 2
U.S.C. 1501 et seq.

C. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)

The Office of Information and Regulatory Affairs has determined
that the proposed rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866. Accordingly, the proposed
regulation has been submitted to the Office of Management and Budget
(``OMB'') for review. The Department certifies that the proposed
regulation has been drafted in accordance with the principles of
Executive Order 12866, section 1(b), and Executive Order 13563.
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, and safety
effects). Executive Order 13563 emphasizes the importance of using the
best available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility.
The Department believes that the proposed rule will provide
significant benefits relating to EOIR proceedings. See Section 1(b)(6)
of E.O. 12866. The proposed rule will help ensure the efficiency and
integrity of these proceedings by setting out enforcement mechanisms
for the sanctionable conduct of individuals appearing before the
Immigration Court system. The Department anticipates that allowing
Immigration Judges to warn and institute the civil money penalty
process against those individuals who are disruptive to the proceedings
will encourage those appearing before the Immigration Courts to act
with decorum and will have a deterrent effect on overall sanctionable
conduct, thereby reducing the time Immigration Judges spend attempting
to enforce courtroom decorum instead of adjudicating cases.
In contrast, the costs on the public that the proposed rule will
impose are the individual liabilities for individuals who may be
subject to a civil money penalty for actions or inactions in contempt
of the Immigration Judge's authority, as well as the filing fee for any
appeals of the Chief Immigration Judge's civil money penalty order. The
Department is proposing a $675 appeal filing fee to match the cost
recovery portion of the Form EOIR-45, Notice of Appeal from a Decision
of an Adjudicating Official in Practitioner Disciplinary Case.\21\ The
Department anticipates that the Board's adjudication of an appeal in
contempt proceedings will be substantially similar to that in attorney
discipline cases, such that the filing fees should be consistent.
---------------------------------------------------------------------------

\21\ On July 4, 2025, President Trump signed the One Big
Beautiful Bill Act (H.R. 1) (``OBBBA''), which added an additional
$1,325 fee for attorney discipline appeals. See Public Law 119-21,
139 Stat. 72 at sec. 100013(f). OBBBA did not include any additional
fees relating to contempt, so the Department is comparing its
contempt appeal fee to the preexisting $675 EOIR fee for attorney
discipline cases, which itself was based on a 2018 fee study of
relevant adjudication costs. See Executive Office for Immigration
Review; Fee Review, 85 FR 11866, 11870 (Feb. 28, 2020).
---------------------------------------------------------------------------

Because the Department intends for the civil money penalty to be an
``extraordinary'' sanction, see 8 CFR 1003.122(b) (proposed), the
Department does not anticipate that a significant number of individuals
will ultimately be subject to such a penalty (for example, in Section
V.F of this preamble, the Department estimates an approximate 50
appeals per year for Paperwork Reduction Act purposes).\22\ Rather, the
Department expects that, in most cases, warnings issued under this
proposed rule will be sufficient to deter contemptuous conduct without
having to initiate the civil money penalty process.
---------------------------------------------------------------------------

\22\ See EOIR, List of Currently Disciplined Practitioners (July
13, 2026), https://www.justice.gov/eoir/list-of-currently-disciplined-practitioners [https://perma.cc/XQ6Y-LKAG] (showing
immediate suspension or final disciplinary action (not including
reinstatement) imposed on approximately 46 practitioners in 2025 and
37 practitioners in 2026 to date). The Department acknowledges that
the individuals subject to a civil money penalty under this proposed
rule, see 8 CFR 1003.123 (proposed), is a broader group of
individuals than practitioners subject to EOIR's professional
conduct rules, see 8 CFR 1003.101(b), which may result in more
individuals receiving or appealing a civil money penalty than
individuals subject to discipline. Nonetheless, the Department
believes this is an appropriate analogy.
---------------------------------------------------------------------------

Otherwise, the Department does not believe that, broadly speaking,
the proposed rule could be said to burden the parties in EOIR
proceedings, as the proposed rule simply provides for civil money
penalties where misconduct

[[Page 47987]]

prevents efficiencies. Moreover, any burden would only be held by a
covered individual who engaged in contemptuous conduct that delayed,
disrupted, or obstructed the adjudicatory process, which holds
comparatively little weight in balancing the costs and benefits of the
proposed rule.

D. Executive Order 13132 (Federalism)

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

E. Executive Order 12988 (Civil Justice Reform)

The proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.

F. Paperwork Reduction Act

Under the procedures established by the Paperwork Reduction Act of
1995 (``PRA'') (44 U.S.C. 3501, et seq.), Federal agencies must obtain
approval from OMB for each collection of information they conduct,
sponsor, or require through regulations. A person is not required to
respond to a collection of information by a Federal agency unless the
collection displays a valid OMB control number. The Information
Collection Requests (``ICRs'') for the proposed new and revised
information collections described below have been forwarded to OMB for
review and comment. In compliance with these requirements, the
Department asks for public comments on the following proposed
collections of information for which the agency is seeking approval
from OMB.
If you have any comments or suggestions, especially on the
estimated public burden or associated response time, or if you need a
copy of the proposed new or revised information collection instruments
with instructions or additional information, please contact the
Department as noted in the FOR FURTHER INFORMATION CONTACT section of
this preamble. Written comments and suggestions from the public and
affected agencies concerning the proposed information collection
instruments are encouraged. Comments should be directed to the address
listed in the ADDRESSES section at the beginning of this preamble.
Comments should also be submitted to the Office of Management and
Budget, Office of Information and Regulatory Affairs, Attention: Desk
Officer for EOIR, New Executive Building, 725 17th Street NW,
Washington, DC 20053. This process complies with 5 CFR 1320.11.
Your comments should address one or more of the following four
points: (1) whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility; (2) the accuracy of the
agency's estimate of the burden of the collection of information,
including the validity of the methodology and assumptions used; (3) how
the Department could enhance the quality, utility, and clarity of the
information to be collected; or (4) how the Department could minimize
the burden of the collection of information on those who are to
respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology (e.g., permitting electronic
submission of responses).
1. New Information Collection
The proposed rule includes one new collection of information: Form
EOIR-86, Notice of Appeal of a Civil Money Penalty for Contempt. The
proposed new information collection is intended to be used by
individuals to appeal to the Board an order of the Chief Immigration
Judge finding the individual in contempt and issuing a civil money
penalty. An individual is required to complete the form to exercise the
appeal rights afforded to the individual under the proposed rule. The
proposed new collection of information will help the Board
differentiate appeals of decisions involving civil money penalties for
contempt from other types of appeals, such as appeals of Immigration
Judge decisions in removal proceedings.
The proposed new collection of information is modeled on the
current approved Forms EOIR-26, Notice of Appeal from a Decision of an
Immigration Judge, and EOIR-45, Notice of Appeal from a Decision of an
Adjudicating Official in a Practitioner Disciplinary Case. Like the
Forms EOIR-26 and EOIR-45, the proposed new collection will require the
appellant to identify himself or herself, to state the decision being
appealed, and to explain the basis for the appeal. The proposed new
form will also provide the appellant with instructions as to where and
how to serve the EOIR General Counsel as a party to contempt
proceedings. Individuals will be able to download and complete the form
either electronically or by printing and handwriting responses.
Individuals will be able to submit completed forms to EOIR by email,
electronically when available, or by regular mail, overnight mail, or
hand-delivery.
The Department estimates that up to 50 individuals will submit an
average of one form per year. The Department estimates that the average
time to review the proposed form, gather necessary materials, complete
the proposed form, and assemble any attachments will be one hour in
total. The total public burden of the proposed new collection is
estimated to be 50 burden hours (50 respondents x 1 response per
respondent x 1 hour per response = 50 burden hours). The Department
estimates the upper bound for aggregate costs for all respondents at
$39,278 annually, accounting for the following types of estimated costs
to members of the public.

----------------------------------------------------------------------------------------------------------------
Estimated
total
Type of cost Estimated per response responses Total
per year
----------------------------------------------------------------------------------------------------------------
Filing Fee.............................. $675....................... 50 $33,750 per year.
Printing................................ $0.10 per page x 5 pages x 50 50 per year.
2 copies = $1.00 per
response.
Postage................................. $10.10 per response x 2 50 1,010 per year.
copies = $20.20 per
response.
Professional Legal Assistance to $89.35 per hour x 1 hour 50 4,468 per year.
Complete Form. per response = $89.35 per
response.
------------------------------------------
AGGREGATE ESTIMATED ANNUAL COST TO ........................... ........... 39,278 per year.
PUBLIC.
----------------------------------------------------------------------------------------------------------------

[[Page 47988]]

The aggregate estimated annual cost to the public is the upper
bound of estimated costs. There are no capital or start-up costs
associated with the form. There is a maximum estimated labor cost of
$89.35 per form, based on the national average hourly wage for
attorneys as estimated by the Bureau of Labor Statistics. See BLS,
Occupational Employment and Wage Statistics (OEWS) Profiles, Lawyers
(May 2025), https://data.bls.gov/oesprofile/?major_group=230000&occupation=231011&measure=03&areas=INDUSTRY,STATE,MSA [https://perma.cc/AW2X-GKSN].
The lower bound of aggregate estimated annual cost to the public is
$33,750 because printing and postage costs may be avoided if an
individual completes the form electronically and submits the form via
email and because professional legal assistance is not required to
complete the form.
2. Revisions to Approved Collections of Information
The proposed rule also includes revisions to two currently approved
collections of information: Form EOIR-27, Notice of Entry of Appearance
as an Attorney or Representative before the Board of Immigration
Appeals; and EOIR-28, Notice of Entry of Appearance as an Attorney or
Representative before the Immigration Court. These forms were
previously approved by OMB under the provisions of the PRA, and the
information collections were assigned OMB Control Number 1125-0005 for
Form EOIR-27 and 1125-0006 for Form EOIR-28.
Under the proposed rule, Forms EOIR-27 and EOIR-28 are being
revised so that the forms may be used by practitioners to enter an
appearance to represent an individual in contempt proceedings before
the Chief Immigration Judge or Board. Specifically, the Department
proposes to update the forms by adding fields for the contempt
proceeding case number and the relevant service of process locations.
The Forms EOIR-27 and EOIR-28 are required to represent an individual
in proceedings before the Immigration Courts or Board. The proposed
revisions do not change the underlying purpose of the forms or how
individuals can submit the forms to EOIR, and the proposed revisions
minimally affect the substance of the forms. Therefore, the Department
believes that these proposed revisions will not increase the average
time required to complete the forms, which was previously estimated at
six minutes.
Form EOIR-27, Notice of Entry of Appearance as an Attorney
or Representative before the Board of Immigration Appeals. The
Department estimates that an average of 42,176 individuals will submit
one form per year, spending an estimated average of six minutes to
prepare and submit the form. The total public burden of this revised
collection is estimated at 4,213 burden hours annually (42,126
respondents x 1 response per respondent x 6 minutes per response =
4,213 burden hours). The Department estimates the aggregate costs for
all respondents at $314,681. There are no capital or start-up costs or
filing fees associated with the form. Assuming the form is included in
the samemailed envelope as any filings submitted by mail, there is no
additional postage cost. The estimated printing cost is $0.20 per form.
Printing and postage costs may be avoided by completing and submitting
the form electronically. There is an estimated labor cost of $8.94 per
form, based on the current median hourly wage for attorneys as set by
the Bureau of Labor Statistics ($89.35 per hour x 0.1 hour to complete
= $8.94 per form).
Form EOIR-28, Notice of Entry of Appearance as an Attorney
or Representative before the Immigration Court. The Department
estimates that 1,536,921 individuals will submit one form per year,
spending an estimated average of six minutes to prepare and submit the
form. The total public burden of this revised collection is estimated
at 153,692 burden hours annually (1,536,921 respondents x 1 response
per respondent x 6 minutes per response = 153,692 burden hours). The
Department estimates the aggregate costs for all respondents at
$11,480,800. There are no capital or start-up costs or filing fees
associated with the form. Assuming the form is included in the
samemailed envelope as any filings submitted by mail, there is no
additional postage cost. The estimated printing cost is $0.20 per form.
Printing and postage costs may be avoided by completing and submitting
the form electronically. There is an estimated labor cost of $8.94 per
form, based on the current median hourly wage for attorneys as set by
the Bureau of Labor Statistics ($89.35 per hour x 0.1 hour to complete
= $8.94 per form).

----------------------------------------------------------------------------------------------------------------
Average
Approx. number response time Total burden
of respondents (minutes) (hours)
----------------------------------------------------------------------------------------------------------------
EOIR-27......................................................... 42,126 6 4,213
EOIR-28......................................................... 1,536,921 6 153,692
----------------------------------------------------------------------------------------------------------------

G. Executive Order 14192 (Unleashing Prosperity Through Deregulation)

The proposed rule is a ``regulation[ ] issued with respect to a[n]
. . . immigration-related function of the United States'' and is
therefore exempt from the requirements of Executive Order 14192 under
section 5(a) of that Order.

H. Executive Order 14219 (Ensuring Lawful Governance and Implementing
the President's ``Department of Government Efficiency'' Deregulatory
Initiative)

The proposed rule is ``an[ ] action related to a[n] . . .
immigration-related function of the United States'' and is therefore
exempt from the requirements of Executive Order 14219 under section
7(a) of that Order.

I. Executive Order 14294 (Overcriminalization of Federal Regulations)

Executive Order 14294 requires agencies promulgating regulations
with criminal regulatory offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. This proposed rule will
not create a criminal regulatory offense and is thus exempt from
Executive Order 14294 requirements.

List of Subjects

8 CFR Part 1003

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

8 CFR Part 1103

Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Reporting and recordkeeping requirements.

[[Page 47989]]

Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Acting Director, Executive Office for
Immigration Review, by the Attorney General Order Number 6260-2025, the
Department proposes to amend parts 1003 and 1103 of chapter V of title
8 of the Code of Federal Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362, 1801, 1802, 1808, 1812; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR,
1949-1953 Comp., p. 1002.

0
2. Amend Sec. 1003.1 by adding new paragraph (b)(15) to read as
follows:

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

* * * * *
(b) * * *
(15) Decisions on the imposition of a civil money penalty under
subpart H of this part.
* * * * *

Sec. 1003.3 [Amended]

0
3. Amend Sec. 1003.3(c)(1) by adding a new sentence after the third
sentence that reads ``For appeals of orders in contempt proceedings
under subpart H of this part, briefs shall be due to the Board
simultaneously from both parties within 20 days of the Board order
setting the schedule and in no case more than 35 days after the appeal
was filed.''
0
4. Amend Sec. 1003.9 by:
0
a. Removing the word ``and'' in paragraph (b)(5);
0
b. Redesignating paragraph (b)(6) as (b)(7); and
0
c. Adding new paragraph (b)(6) to read as follows:

Sec. 1003.9 Office of the Chief Immigration Judge.

* * * * *
(b) * * *
(6) Issue orders imposing a civil money penalty, in accordance with
8 CFR part 1003, subpart H; and
* * * * *
0
5. Amend Sec. 1003.102 by:
0
a. Revising the last sentence of paragraph (c);
0
b. Revising paragraph (g);
0
c. Removing the period at the end of paragraph (v) and adding in its
place a semicolon;
0
d. Removing the period at the end of paragraph (w) and adding in its
place ``; or''; and
0
e. Adding paragraph (x).
The revisions and addition read as follows:

Sec. 1003.102 Grounds.

* * * * *
(c) * * * If a practitioner has offered material evidence or made a
false statement of material fact or law and receives notice, or
reasonably should have known, of the falsity, the practitioner shall
take appropriate remedial measures, and a failure to take such remedial
measures shall subject the practitioner to disciplinary sanctions in
the public interest under this paragraph (c);
* * * * *
(g) Engages in contumelious or otherwise obnoxious conduct, with
regard to a case in which he or she acts in a representative capacity,
which would constitute contempt of court in a judicial proceeding or a
proceeding under subpart H of this part. The assessment of a final
order for a civil money penalty in proceedings under subpart H of this
part, and the conduct underlying such an order, are factors that may be
considered when determining if contumelious or otherwise obnoxious
conduct has occurred;
* * * * *
(x) Repeatedly fails to pay a civil money penalty as described in
Sec. 1003.129.
0
6. Revise Sec. 1003.103 by adding new paragraph (d) to read as
follows:

Sec. 1003.103 Immediate suspension and summary disciplinary
proceedings; duty of practitioner to notify EOIR of conviction or
discipline.

* * * * *
(d) Contempt civil money penalty. For procedures relating to the
immediate suspension of practitioners for failure to pay a civil money
penalty for contempt, see Sec. 1003.129.
0
7. Revise Sec. 1003.109, including the section heading, to read as
follows:

Sec. 1003.109 Discipline of EOIR adjudicators.

Complaints regarding the conduct or behavior of Immigration Judges,
Appellate Immigration Judges, or Administrative Law Judges shall be
directed to an appropriate supervisor, the EOIR Judicial Conduct and
Professionalism Unit, or the Office of Professional Responsibility,
United States Department of Justice. If disciplinary action is
warranted, it shall be administered pursuant to the Department's
attorney discipline procedures and, for Administrative Law Judges,
pursuant to 5 CFR 930.211.
0
8. Amend part 1003 by adding a new Subpart H, to read as follows:

SUBPART H--CIVIL MONEY PENALTY FOR CONTEMPTUOUS CONDUCT BEFORE AN
IMMIGRATION JUDGE

Sec.
1003.121 Authority to impose civil money penalties for contemptuous
conduct.
1003.122 General statement of principles.
1003.123 Covered individuals.
1003.124 Contemptuous conduct for which a civil money penalty may be
imposed.
1003.125 Required warning before initiating the civil money penalty
process.
1003.126 Initiation of the civil money penalty process.
1003.127 Decision by the Chief Immigration Judge or designee.
1003.128 Appeals.
1003.129 Payment of the civil money penalty.
1003.130 Oversight.

Sec. 1003.121 Authority to impose civil money penalties for
contemptuous conduct.

Under section 240(b)(1) of the Act and the provisions of this
subpart, an Immigration Judge has the authority to propose, and the
Chief Immigration Judge or designee has the authority to impose, a
civil money penalty on an individual, as set forth in Sec. 1003.123,
who engages in conduct, as set forth in Sec. 1003.124, in contempt of
the Immigration Judge's proper exercise of authority under the Act
during the course of proceedings conducted under section 240 of the
Act.

Sec. 1003.122 General statement of principles.

(a) Purpose of the civil money penalty. The purpose of imposing
civil money penalties for contemptuous conduct before an Immigration
Judge is to promote the fair, efficient, and consistent adjudication of
immigration proceedings; to uphold the dignity and authority of such
proceedings; and to deter behavior that delays, disrupts, or obstructs
the due course of those proceedings.
(b) Exceptional use. The imposition of a civil money penalty for
contemptuous conduct is an extraordinary sanction. The civil money
penalty sanction under this subpart exists to allow Immigration Judges
to conduct proceedings without improper interference. Immigration
Judges generally should make a reasonable attempt to deter or redress
contemptuous conduct through other available means, resorting to the
proposal of a civil money penalty only after other reasonably available
means have failed to restore proper conduct. A

[[Page 47990]]

civil money penalty should be imposed only upon clearly identifiable
behavior that constitutes misconduct under this subpart.
(c) Relationship of the civil money penalty to other sanctions. The
procedures in this subpart are independent of other sanctions or
procedures that may be available under the immigration laws and this
chapter. The availability or imposition of a civil money penalty under
this subpart does not preclude the use of other sanctions or procedures
with regard to misconduct that are available.
(d) Inapplicability of the civil money penalty to the enforcement
of subpoenas. Contempt authority and procedures under this subpart do
not apply to the enforcement of a subpoena pursuant to Sec.
1003.35(b).

Sec. 1003.123 Covered individuals.

(a) Individuals subject to civil money penalties. Civil money
penalties under this subpart may only be imposed on the following
individuals:
(1) An attorney or representative, as defined in Sec. 1001.1(f)
and (j), who has filed a Notice of Entry of Appearance as Attorney or
Representative before the Immigration Court (Form EOIR-28) or a Notice
of Entry of Limited Appearance for Document Assistance before the
Immigration Court (Form EOIR-61);
(2) An alien who is the subject of proceedings before the
Immigration Judge; and,
(3) Witnesses, except as described in paragraph (b) of this
section, in any proceedings before the Immigration Judge, whether
physically present in the courtroom or whose presence in the courtroom
is effectuated through telephonic or videoconferencing equipment.
(b) Individuals not subject to civil money penalties. Civil money
penalties may only be imposed on individuals described in paragraph (a)
of this section, which does not include attorneys or witnesses who are
employees or contractors of the federal government acting in their
official capacity.

Sec. 1003.124 Contemptuous conduct for which a civil money penalty
may be imposed.

(a) Contemptuous conduct subject to a civil money penalty. Subject
to the requirements of Sec. 1003.125 and Sec. 1003.126, an
Immigration Judge may issue a Notice of Intent to Impose Civil Money
Penalty on a covered individual, as defined in Sec. 1003.123, if the
Immigration Judge makes a prima facie determination that the individual
has engaged in one or more of the following types of conduct, and that
the conduct delayed, disrupted, or obstructed the adjudicatory process:
(1) For attorneys and representatives, the repeated failure to
appear or to appear in a timely manner, including by telephone or by
videoconferencing, for scheduled hearings or pre-hearing conferences,
without good cause.
(2) Repeated failure to comply with Immigration Judge orders to
timely file pleadings, applications, pre-hearing statements,
evidentiary submissions, or any other filings, without good cause.
(3) Disorderly or abusive behavior or language in and around the
courtroom and before the Immigration Judge or abusive language in any
filing with the court.
(4) Knowingly or recklessly making a false statement of material
fact or law or offering false evidence. For attorneys and
representatives, such conduct includes failing to take appropriate
remedial measures after receiving notice of the falsity, or when the
attorney or representative reasonably should have known of the falsity,
of either a previous statement of material law or fact or previously
offered material evidence.
(5) Willfully misleading, misinforming, threatening, or deceiving
any person (including a party to a case or an officer or employee of
the Department of Justice), concerning any relevant matter relating to
a case.
(b) Action and inaction. Both actions and inactions may constitute
contemptuous conduct if they satisfy the requirements of paragraph (a)
of this section.
(c) Exclusive list of contemptuous conduct. A civil money penalty
may not be imposed for conduct that is not described in this section.

Sec. 1003.125 Required warning before initiating the civil money
penalty process.

(a) Warning requirement. If an Immigration Judge believes a covered
individual, as set forth in Sec. 1003.123, has engaged in contemptuous
conduct for which a civil money penalty may be imposed, as set forth in
Sec. 1003.124, the Immigration Judge must provide the individual with
a clear and unambiguous warning before initiating the civil money
penalty process under this subpart. The Immigration Judge is required
to issue only one warning before initiating the civil money penalty
process for continued engagement in the same contemptuous conduct; and
such warning is not limited to a single proceeding. The warning remains
in effect for one year from the date of issuance of the warning. Any
previous order imposing a civil money penalty on a covered individual,
as set forth in Sec. 1003.123, for contemptuous conduct, shall also
serve as a warning for the imposition of future civil money penalties
if the same type of contemptuous conduct continues or is repeated
within one year of the previous order.
(b) Form of warning. If the individual is present before the
Immigration Judge when the conduct occurs, the Immigration Judge must
provide an oral warning on the record and memorialize the warning in
writing as soon as practicable. If the individual is not present before
the Immigration Judge when the conduct occurs, the Immigration Judge
must provide a written warning. In all cases, the warning should be
made as close in time to the occurrence of the conduct as reasonably
possible. The written warning or a written memorialization of an oral
warning must be served on the individual either in person or at the
individual's physical or email address in EOIR's case management
system, and a copy shall be maintained in the Record of Proceeding for
the relevant case in which the contemptuous conduct occurred. If the
individual's name and address(es) are not in EOIR's case management
system, the Immigration Judge must request on the record that the
individual provide such information.
(c) Contents of the warning. The warning must:
(1) Describe the specific conduct that resulted in the warning;
(2) Explain why the Immigration Judge believes the conduct is
within the scope of Sec. 1003.124;
(3) Notify the individual that, if he or she continues to engage in
such conduct, the Immigration Judge may initiate the process to hold
the individual in contempt and impose a civil money penalty on the
individual; and
(4) Notify the individual that he or she may respond to the warning
and, if responding, must do so within the time specified in paragraph
(d) of this section.
(d) Response to the warning. An individual may, but is not required
to, respond to the Immigration Judge's warning, either on the record
orally at the time of the warning or in writing within 10 days of the
issuance of the warning. Such response, if any, must be included in the
Record of Proceeding of the relevant case in which the contemptuous
conduct occurred. Any response demonstrating further contemptuous
conduct within the scope of Sec. 1003.124 that the individual was
warned about may form the basis for

[[Page 47991]]

initiation of the civil money penalty process.
(e) Continued contemptuous conduct following warning. If, after
receiving a warning, the individual continues to engage in the same
contemptuous conduct that the individual was warned about, the
Immigration Judge must make a finding on the record that the individual
has continued to engage in the specified conduct despite being warned
before initiating the civil money penalty process under Sec. 1003.126.
In all cases, the finding of continued contemptuous conduct should be
made as close in time to the occurrence of the conduct as reasonably
possible.

Sec. 1003.126 Initiation of the civil money penalty process.

(a) Generally. The civil money penalty process is the sole means of
imposing a civil money penalty for contemptuous conduct under Sec.
1003.124. The civil money penalty process must be initiated as soon as
practicable after the finding of continued contemptuous conduct under
Sec. 1003.125(e), but in no case later than one year after the most
recent related warning issued pursuant to Sec. 1003.125. No civil
money penalty proceedings initiated against an alien described in Sec.
1003.123(a)(2) may stay or otherwise interfere with the proceedings
before the Immigration Judge or, as appropriate, the removal of the
alien.
(b) Initiating the civil money penalty process. (1) To initiate the
civil money penalty process, the Immigration Judge will serve the
individual with a Notice of Intent to Impose Civil Money Penalty (CMP
Notice). The CMP Notice may be served on the individual by personal
service or mail. If the individual is a practitioner before EOIR, the
CMP Notice may also be served electronically using the practitioner's
email address provided through eRegistry. The Immigration Judge shall
also refer the CMP Notice to the Chief Immigration Judge or his or her
designee for adjudication.
(2) The CMP Notice must include:
(i) The name and address of the individual subject to the civil
money penalty;
(ii) A factual description of the conduct in question, including
the date(s), time(s), and place(s) of the conduct, as relevant;
(iii) The specific alleged charge(s) of conduct under Sec.
1003.124;
(iv) An explanation of how the conduct in question delayed,
disrupted, or obstructed the adjudicatory process;
(v) A brief description of any warning(s) provided; and
(vi) The amount of the proposed civil money penalty consistent with
paragraph (c) of this section.
(3) The CMP Notice must inform the individual of the following:
(i) That the matter is being referred to the Chief Immigration
Judge for decision as provided in Sec. 1003.127;
(ii) That the individual may file a response to the CMP Notice with
the Chief Immigration Judge in accordance with paragraph (d) of this
section within 30 days of issuance of the CMP Notice, and the location
where the response to the CMP Notice must be filed;
(iii) That the individual may file one motion with the Chief
Immigration Judge to extend the time to respond to the CMP Notice for a
maximum of 7 days, for good cause; and
(iv) That the individual may be represented at their own expense by
an attorney, as defined in Sec. 1001.1(f), or another representative
allowed under Sec. 1292.1.
(c) Determining proposed penalty amount. To determine the proposed
penalty amount for the CMP Notice, the Immigration Judge must first
determine the appropriate penalty range based on the penalty schedule
provided in paragraph (c)(1) of this section. Once the penalty range is
determined, the specific amount of the proposed penalty is then
determined by considering all relevant factors as provided in paragraph
(c)(2) of this section.
(1) Penalty schedule. A civil money penalty must be determined
according to the following schedule:
(i) First contempt order: not less than $1,000 and not more than
$1,500;
(ii) Second contempt order: not less than $1,500 and not more than
$2,500; and
(iii) Any subsequent contempt order: not less than $2,500 and not
more than $3,500.
(2) Relevant factors. The factors an Immigration Judge must
consider when proposing a civil money penalty include, but are not
limited to:
(i) The harm from the conduct, including any resulting
administrative delays or additional costs or burdens;
(ii) The egregiousness of the individual's contemptuous conduct
during the proceedings before the Immigration Judge;
(iii) The pervasiveness of the individual's contemptuous conduct
during the proceedings before the Immigration Judge;
(iv) The probable deterrent effect of the penalty; and
(v) The number of prior offenses or warnings.
(d) Response to the CMP Notice. An individual served a CMP Notice
under paragraph (b) of this section may submit a written response to
the CMP Notice to the Chief Immigration Judge. Such response must be
filed within 30 days of the date of issuance of the CMP Notice. An
individual may file one motion with the Chief Immigration Judge to
extend the time to respond to the CMP Notice for a maximum of 7 days,
for good cause. The response must include the individual's name,
contempt case number, A-number or EOIR identification number (if any),
current physical and email addresses, the individual's position on the
charge(s) set forth in the CMP Notice, and any written or documentary
evidence in support of the individual's position. If the individual is
represented, his or her attorney or representative must file a Notice
of Entry of Appearance as Attorney or Representative before the
Immigration Court (Form EOIR-28) with the Chief Immigration Judge.
(e) Record of Proceeding. If the civil money penalty process is
initiated under this section, the Immigration Court shall create a
contempt Record of Proceeding, separate and apart from any underlying
case Record of Proceeding(s). The Immigration Court shall ensure that
all relevant evidence in the underlying case proceeding(s) that gave
rise to the initiation of the civil money penalty process, such as any
oral statements or documents capturing or giving rise to the
contemptuous conduct, related warnings and warning responses under
Sec. 1003.125, and CMP Notices, responses to CMP Notices, and related
filings under paragraphs (b) and (d) of this section, are entered or
described in the contempt Record of Proceeding. Any oral statements,
warnings, or warning responses given on the record must be transcribed
for inclusion in the contempt Record of Proceeding. Any oral
statements, warnings, or warning responses that were not recorded must
be summarized in writing by the Immigration Judge for inclusion in the
contempt Record of Proceeding.
(f) Filing requirements. All filings by an individual must comply
with the document filing requirements in Sec. Sec. 1003.31 through
1003.33, including that all filings submitted under this subpart must
be submitted in English or accompanied by a certified English
translation.

Sec. 1003.127 Decision by the Chief Immigration Judge or designee.

(a) Adjudicator. Upon referral of the CMP Notice by the Immigration
Judge, jurisdiction over a civil money penalty process initiated under
Sec. 1003.126 vests

[[Page 47992]]

with the Chief Immigration Judge to make the final decision. The Chief
Immigration Judge may designate a permanent Deputy Chief Immigration
Judge to make the decision, provided that such designee is not the
present first-line supervisor of the Immigration Judge who issued the
CMP Notice and is not conducting a review involving an alien who has
previously appeared in immigration proceedings before the designee. If
the Chief Immigration Judge is the Immigration Judge who issued the CMP
Notice, the EOIR Director will designate a senior adjudicator outside
of the Office of the Chief Immigration Judge to adjudicate the CMP
Notice and make a decision.
(b) Adjudication procedures. After reviewing the CMP Notice and the
response to the CMP Notice, if any, as well as all supporting
materials, the Chief Immigration Judge or the designee will issue a
written decision under paragraph (d) of this section. The Chief
Immigration Judge or the designee may only consider the contempt Record
of Proceeding as described in Sec. 1003.126(e). The Chief Immigration
Judge or the designee will consider and rule on all motions. The Chief
Immigration Judge or the designee may not remand a CMP Notice to the
Immigration Judge for further clarification or proceedings.
(c) Motion to extend time to respond. A maximum of one time per
case, upon a motion filed to extend the time to respond to the CMP
Notice, the Chief Immigration Judge or the designee may extend the date
by which the response must be filed by a maximum of 7 days upon good
cause shown.
(d) Decision. (1) The Chief Immigration Judge or the designee shall
issue a decision finding the individual in contempt and imposing a
civil money penalty if clear and convincing evidence supports the
following:
(i) The person charged in the CMP Notice is a covered individual
under Sec. 1003.123;
(ii) The conduct set forth in the CMP Notice occurred;
(iii) The conduct falls within the scope of Sec. 1003.124(a); and
(iv) The Immigration Judge properly provided the required warning,
time to respond to the warning, and the CMP Notice under Sec. Sec.
1003.125 and 1003.126.
(2) If the Chief Immigration Judge or the designee issues an order
imposing a civil money penalty, the order must specify the amount of
the civil money penalty consistent with Sec. 1003.126(c); provided,
however, that the order may not set a penalty amount above the amount
stated in the CMP Notice. The order must include instructions for
payment, including where payment is to be made and the form of such
payment. The order must also inform the individual of the right to file
an appeal with the Board under Sec. 1003.128 within 10 days from the
date of the order.
(3) The Chief Immigration Judge or the designee must issue an order
dismissing the CMP Notice with prejudice if:
(i) He or she does not find clear and convincing evidence to
support the findings required in paragraph (d)(1) of this section, or
(ii) The CMP Notice was issued against an alien described in Sec.
1003.123(a)(2) and the Chief Immigration Judge or the designee receives
information indicating that the alien has been removed from or has
departed the United States prior to the issuance of a decision.
(4) An order dismissing the CMP Notice is final and not subject to
further review.
(5) The Chief Immigration Judge or the designee must serve a copy
of his or her order on the individual or, if represented, the
individual's attorney or representative. If the individual is
represented by an attorney or representative, the Chief Immigration
Judge's order will be served electronically using the email address
that the individual's attorney or representative has provided through
eRegistry. If the individual is not represented, the Chief Immigration
Judge's order may be served on the individual by personal service or
mail. If the unrepresented individual is a practitioner before EOIR,
service may also be made electronically using the practitioner's email
address provided through eRegistry.
(e) Finality of order. The order of the Chief Immigration Judge or
the designee becomes a final agency decision unless the individual
files a timely appeal with the Board under Sec. 1003.128. Where the
individual has filed a timely appeal, the Board's decision shall become
a final agency decision in accordance with Sec. 1003.128(d)(2). Filing
an appeal automatically stays the order and the requirement to pay the
penalty pending the outcome of the appeal.

Sec. 1003.128 Appeals.

(a) Generally. An individual who has been issued an order finding
the individual in contempt and imposing a civil money penalty pursuant
to Sec. 1003.127 may appeal the order to the Board by filing a Notice
of Appeal of a Civil Money Penalty for Contempt (Form EOIR-86). A copy
of the Notice of Appeal of a Civil Money Penalty for Contempt must be
simultaneously served on the General Counsel. The General Counsel or
the EOIR disciplinary counsel, where so designated, will represent the
Office of the Chief Immigration Judge in this appeal process. The
Notice of Appeal of a Civil Money Penalty for Contempt must be filed
within 10 days from the date of the order issued under Sec. 1003.127
and include the required filing fee or fee waiver form pursuant to
Sec. 1103.7.
(b) Notice of appeal and briefs. The Notice of Appeal of a Civil
Money Penalty for Contempt must state the basis for the appeal. A brief
in support of an appeal shall be filed directly with the Board, follow
the briefing schedules contained in Sec. 1003.3(c)(1), and include
proof of service on the General Counsel. All filings to the Board must
include: the individual's name, case number, A-number or EOIR
identification number (if any), current physical and email addresses,
and a designation of the type of filing.
(c) Representation. An individual may be represented on appeal, at
no expense to the government, by an attorney, as defined in Sec.
1001.1(f), or another individual authorized under Sec. 1292.1 to
provide representation before EOIR. The attorney or representative must
file a Notice of Entry of Appearance as Attorney or Representative
before the Board of Immigration Appeals (Form EOIR-27) and serve a copy
on the General Counsel.
(d) Appellate processes before the Board. (1) Upon receipt of a
timely filed Notice of Appeal of a Civil Money Penalty for Contempt,
the Chief Immigration Judge or the designee will promptly forward the
contempt Record of Proceeding to the Board to conduct a review pursuant
to Sec. 1003.1(d)(3).
(2) Following its review, the Board must issue a written decision
affirming, modifying, or vacating with prejudice the civil money
penalty, provided that the Board may neither set a penalty amount above
the amount stated in the CMP Notice nor remand the case to the Chief
Immigration Judge or the designee for further proceedings. If a civil
money penalty was imposed against an alien described in Sec.
1003.123(a)(2) and the Board receives information that the alien has
been removed from or has departed the United States prior to issuing
its decision, the Board shall vacate the civil money penalty. A copy of
the Board's written decision will be served on the General Counsel, the
individual, and, if the individual is represented, the individual's
attorney or representative. The Board's decision becomes the final
agency order on the date issued.

[[Page 47993]]

(3) The Board may publish decisions in proceedings conducted under
this subpart consistent with its authority in Sec. 1003.1(g). Such
decisions will serve as precedents in all proceedings involving the
same issue(s). The Board shall refer cases under this subpart to the
Attorney General for review in accordance with Sec. 1003.1(h).

Sec. 1003.129 Payment of the civil money penalty.

(a) Deadline. Payment of the civil money penalty must be made in a
manner and form authorized by EOIR. If no appeal is filed, payment of
the civil money penalty is due within 30 days of the order of the Chief
Immigration Judge or the designee becoming final under Sec.
1003.127(e). If an appeal is filed, payment of the civil money penalty
is due within 30 days of the issuance of the final agency decision
under Sec. 1003.128(d). If review of the Board decision is sought in
federal court, payment of the civil money penalty is due within 30 days
of the issuance of a final court decision upholding the civil money
penalty.
(b) Collection of unpaid civil money penalty. If the individual
upon whom a civil money penalty has been imposed fails to pay the
penalty in the timeframe provided in paragraph (a) of this section, the
civil money penalty may be collected under the provisions in 28 CFR
part 11 or any other applicable federal law.
(c) Suspension of a practitioner for failure to pay. (1) If the
individual who fails to pay the imposed civil money penalty within 30
days as provided in paragraph (a) of this section is a practitioner
subject to sanctions in Sec. 1003.101(b), the EOIR disciplinary
counsel will send the practitioner a notice that the disciplinary
counsel will file a petition with the Board to suspend that
practitioner from practice before the Board and the Immigration Courts
immediately, unless the practitioner pays the civil money penalty and a
late fee of $50 within 15 days from the date of issuance of the notice.
Service of this notice will be made upon the practitioner either by
certified mail to his or her last known address as defined in Sec.
1003.105(a)(2) or by personal delivery.
(2) If the practitioner fails to pay the civil money penalty and
the applicable late fee or otherwise send proof of payment thereof to
the EOIR disciplinary counsel within 15 days of issuance of the notice,
the EOIR disciplinary counsel shall file a petition with the Board to
suspend that practitioner immediately from practice before the Board
and the Immigration Courts. Service of the petition for immediate
suspension will be made upon the practitioner either by certified mail
to his or her last known address as defined in Sec. 1003.105(a)(2) or
by personal delivery.
(3) Upon the filing of a petition for immediate suspension by the
EOIR disciplinary counsel, together with a certified copy of the
relevant final order imposing a civil money penalty and a copy of the
notice described in this section, the Board may enter an order
immediately suspending the practitioner from practice before the Board
and the Immigration Courts. If an immediate suspension is imposed upon
a practitioner, the Board may require that notice of such suspension be
posted at the Board and the Immigration Courts.
(4) A suspended practitioner may file a motion with the Board to
set aside the immediate suspension order upon proof that the civil
money penalty and the late fee were paid in full.
(5) Nothing in this section prohibits the EOIR disciplinary counsel
from taking any other appropriate action consistent with subpart G of
this part.

Sec. 1003.130 Oversight.

An Immigration Judge's exercise of the authority set forth in this
subpart is subject to the supervision of the Chief Immigration Judge.
The Chief Immigration Judge's exercise of the authority set forth in
this subpart is subject to the supervision of the Director. The Chief
Immigration Judge must conduct periodic reviews of this authority and,
after consultation with the Director, may suspend any Immigration
Judge's exercise of the authority for up to 30 days if the authority
has been improperly applied or misused. The Director will review the
Chief Immigration Judge's exercise of the authority set forth in this
subpart and may suspend the Chief Immigration Judge's exercise of the
authority for up to 30 days if the authority has been improperly
applied or misused. Any suspension of an Immigration Judge's authority
under this paragraph shall be communicated through a standing order
issued by the Chief Immigration Judge or, as appropriate, the Director.
Complaints or allegations of misconduct by an Immigration Judge
regarding the threat or exercise of authority under this subpart should
be directed to the Immigration Judge's supervisor, EOIR's Judicial
Conduct and Professionalism Unit, or the Department of Justice Office
of Professional Responsibility.

PART 1103--APPEALS, RECORDS, AND FEES

0
9. The authority citation for part 1103 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1304, 1356, 1801, 1802, 1808,
1812; 31 U.S.C. 9701; 28 U.S.C. 509, 510.

0
10. In Sec. 1103.7, amend table 1 to paragraph (b)(1) by adding an
entry for Form EOIR-86, Notice of Appeal of a Civil Money Penalty for
Contempt, in numerical order by form number to read as follows:

Sec. 1103.7 Fees.

* * * * *
(b) * * *
(1) * * *

Table 1 to Paragraph (b)(1)
----------------------------------------------------------------------------------------------------------------
Current EOIR
(section 286(m) Current EOIR
of the Current One Big total fees
Immigration fee type Immigration and Beautiful Bill except any
Nationality Act (OBBBA) fee biometrics fees
Act) fee
----------------------------------------------------------------------------------------------------------------
Form EOIR-86, Notice of Appeal of a Civil Money Penalty for $675 $0 $675
Contempt....................................................
----------------------------------------------------------------------------------------------------------------

[[Page 47994]]

* * * * *

Sirce E. Owen,
Acting Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2026-15458 Filed 7-29-26; 8:45 am]
BILLING CODE 4410-30-P