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  • News: DOJ EPOR Publishes Final Rule on Registry for Attorneys and Representatives

    Federal Register, Volume 78 Issue 62 (Monday, April 1, 2013)
    [Federal Register Volume 78, Number 62 (Monday, April 1, 2013)]
    [Rules and Regulations]
    [Pages 19400-19408]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2013-07526]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF JUSTICE
    
    Executive Office for Immigration Review
    
    8 CFR Part 1292
    
    [Docket No. EOIR 138F; A.G. Order No. 3377-2013]
    RIN 1125-AA39
    
    
    Registry for Attorneys and Representatives
    
    AGENCY: Executive Office for Immigration Review, Department of Justice.
    
    ACTION: Final rule; request for comments.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule adopts, as amended, the proposed rule to 
    authorize the Director of the Executive Office for Immigration Review 
    (EOIR), or his designee, to register attorneys and accredited 
    representatives as a condition of practicing before immigration judges 
    and the Board of Immigration Appeals (Board or BIA). The final rule 
    provides that the Director may establish registration procedures, 
    including a requirement for electronic registration, and may 
    administratively suspend from practice before EOIR any attorney or 
    accredited representative who fails to provide certain registration 
    information. This rule is part of an initiative to create an electronic 
    case access and filing system within EOIR. The Department of Justice 
    (Department) will publish a notice in the Federal Register prior to 
    implementing the registration process. Although this rule is published 
    as a final rule, post-promulgation public comments will be considered 
    as EOIR moves forward with other phases of its electronic access and 
    filing initiative.
    
    DATES: Effective date: This rule is effective May 31, 2013. Comment 
    date: Written comments must be submitted on or before May 31, 2013.
    
    ADDRESSES: You may submit comments, identified by EOIR Docket No. 138F, 
    by one of the following methods:
         Federal eRulemaking Portal: http://www.regulations.gov. 
    Follow the instructions for submitting comments. Commenters should be 
    aware that the electronic Federal Docket Management System will not 
    accept comments after midnight Eastern Time on the last day of the 
    comment period.
         Mail: Jeff Rosenblum, General Counsel, Office of the 
    General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
    Pike, Suite 2600, Falls Church, VA 22041. To ensure proper handling, 
    please reference EOIR Docket No. 138F on your correspondence. You may 
    also use this mailing address to submit disks or CD-ROMs.
         Hand Delivery/Courier: Jeff Rosenblum, General Counsel, 
    Office of the General Counsel, Executive Office for Immigration Review, 
    5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. Contact 
    Telephone Number (703) 305-0470.
    
    FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel, 
    Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
    2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free 
    call).
    
    SUPPLEMENTARY INFORMATION:
    
    I. Public Participation
    
        On December 30, 2003, the Department published in the Federal 
    Register a proposed rule that would establish a registry of attorneys 
    and representatives who practice before EOIR. 68 FR 75160. The comment 
    period ended March 1, 2004. The Department received seven letters from 
    organizations and individuals, including the American Immigration 
    Lawyers Association, several law school clinical programs, and two 
    attorneys. Because some comments overlap and all of the commenters 
    raised multiple subjects, the comments are addressed below by topic 
    rather than by reference to a specific commenter. The changes to the 
    proposed regulatory text made in response to public comments are 
    addressed below. With the exception of the additional changes explained 
    below, all other provisions of the proposed rule on which the public 
    did not comment are adopted without change in this final rule.
        As described further below, EOIR regards this rule as an initial 
    step in a multi-year, multi-phased initiative to make the transition to 
    an electronic case access and filing system. Therefore, EOIR will 
    accept post-promulgation comments regarding this rule and will consider 
    them as it moves forward with its initiative.
    
    II. Regulatory Background
    
        This rule amends 8 CFR part 1292 by revising Sec.  1292.1(a)(1) and 
    (a)(4), and by establishing a new paragraph at Sec.  1292.1(f).\1\ 
    These amendments provide the Director of EOIR with the authority to 
    require attorneys and accredited representatives to register with EOIR 
    in order to practice before its immigration judges and the Board.\2\ 
    The rule specifies the information that attorneys and accredited 
    representatives will need to provide to EOIR when registering. The 
    Director will require that attorneys and accredited representatives 
    register through electronic means.\3\
    ---------------------------------------------------------------------------
    
        \1\ As noted below, EOIR will publish a notice in the Federal 
    Register specifying the date on which attorneys and accredited 
    representatives will first be able to register and the date by which 
    attorneys and accredited representatives must register. The final 
    rule revises slightly the proposed rule's amendments to 8 CFR 
    1292.1(a)(1) and (a)(4) to clarify that EOIR will not require 
    attorneys and accredited representatives to register by the 
    effective date of this rule. Instead, EOIR will publish further 
    implementation guidance in the Federal Register.
        \2\ For purposes of this rule, the term ``attorney'' refers to 
    any individual meeting the definition of ``attorney'' in 8 CFR 
    1001.1(f), except any attorney who represents the Federal Government 
    before EOIR. The term ``accredited representative'' refers only to 
    an accredited representative who is accredited to appear before 
    EOIR. See 8 CFR 1292.2(d). The provisions of this rule do not apply 
    to accredited representatives who are only accredited to appear 
    before the Department of Homeland Security. See id.
        \3\ As part of the registration process, attorneys and 
    accredited representatives will be required to attest to the 
    accuracy of the data they are submitting electronically.
    ---------------------------------------------------------------------------
    
        EOIR is permitted to authorize individuals to practice in 
    proceedings before immigration judges and the Board. See 8 U.S.C. 
    1229a(b)(4)(A) and 8 CFR part 1292. Pursuant to this final rule, 
    attorneys and accredited representatives will need to register in order 
    to be authorized to practice before EOIR. If an attorney or accredited 
    representative who has cases pending with EOIR when this final rule 
    takes effect fails to register by the deadline for registering, EOIR 
    may administratively suspend that individual from practice.\4\ An 
    attorney or accredited representative
    
    [[Page 19401]]
    
    subject to administrative suspension will be able to resume practicing 
    before EOIR upon his or her completion of the registration process. 
    While administrative suspension, on its own, is not disciplinary in 
    nature, multiple attempts by an unregistered attorney or accredited 
    representative to appear before EOIR may result in disciplinary 
    sanctions. Any individual meeting the definition of ``attorney'' in 8 
    CFR 1001.1(f) (other than one who represents the Federal Government) or 
    the definition of ``representative'' in 8 CFR 1001.1(j) is subject to 
    disciplinary sanctions for misconduct, even if the individual is not 
    registered. See 8 CFR 1003.101(b).
    ---------------------------------------------------------------------------
    
        \4\ If an attorney or accredited representative cannot appear at 
    a hearing because he or she has failed to register, the immigration 
    judge has the means available to avoid prejudice to the alien's 
    case, which might include granting one-time permission for the 
    attorney or accredited representative to appear in the case prior to 
    registering, as discussed below, or a continuance under the 
    applicable case law.
    ---------------------------------------------------------------------------
    
        The requirement that attorneys and accredited representatives 
    register with EOIR is part of an initiative to create an electronic 
    case access and filing system within EOIR. The Government Paperwork 
    Elimination Act (GPEA), Public Law 105-277, tit. XVII, section 1704, 
    112 Stat. 2681, 2681-750 (Oct. 21, 1998), 44 U.S.C. 3504 note, provides 
    that, when practicable, Federal agencies will provide for the 
    electronic submission of information. As an initial step in the process 
    of creating an electronic filing system, EOIR must register attorneys 
    and accredited representatives.
        When an attorney or accredited representative registers, he or she 
    will create a unique UserID and password for online access to the 
    registry, and EOIR will assign a unique EOIR identification number 
    (EOIR ID number) to each registrant.\5\ The EOIR ID number will ensure 
    that each attorney and accredited representative will be specifically 
    identified in the electronic case filing system with his or her 
    registration information. Currently, the Board and each immigration 
    court assign a three-character identifier to attorneys and accredited 
    representatives appearing before them for use in EOIR's case tracking 
    system. As a result, EOIR could have multiple identifiers for the same 
    attorney or accredited representative in different courts, and 
    different attorneys and accredited representatives may have the same 
    identifiers in different courts. This decentralized structure is 
    inadequate for the electronic case filing system that EOIR intends to 
    establish.
    ---------------------------------------------------------------------------
    
        \5\ The notice of proposed rulemaking indicated that EOIR would 
    issue UserIDs to registrants. See 68 FR 75161. However, since the 
    time of publication, application design and security standards have 
    evolved, and it is now preferred that individual applicants select 
    their own UserID and password to create online accounts.
    ---------------------------------------------------------------------------
    
        Through the registration process, EOIR will ensure that each 
    attorney or accredited representative will be individually identified 
    and associated with the registration information that the attorney or 
    accredited representative will provide during registration. This will 
    reduce errors concerning an attorney's or accredited representative's 
    correct mailing address and avoid confusion as to who is representing a 
    particular alien.\6\ Further, registered attorneys and accredited 
    representatives will be able to access the registry with their unique 
    UserIDs and passwords to update their registration information online 
    and, in the future, to access EOIR's electronic filing system.\7\
    ---------------------------------------------------------------------------
    
        \6\ EOIR intends to issue in a Federal Register notice guidance, 
    as needed, to be followed when an attorney or accredited 
    representative seeks to change his or her address.
        \7\ EOIR will not require an attorney or accredited 
    representative to include his or her online UserID on Form EOIR-27 
    and Form EOIR-28, as originally stated in the notice of proposed 
    rulemaking, but instead EOIR will require each registrant to include 
    his or her assigned, unique EOIR ID number on these forms.
    ---------------------------------------------------------------------------
    
    III. Registration
    
        Following the promulgation of this final rule, EOIR intends to 
    require all attorneys and accredited representatives who practice 
    before immigration judges or the Board to register online. EOIR will 
    require that attorneys and accredited representatives provide the 
    following information when registering: full name; date of birth; 
    business address(es); business telephone number(s); email address; bar 
    admission information (for attorneys); \8\ and recognized organization 
    (for accredited representatives).\9\
    ---------------------------------------------------------------------------
    
        \8\ Specifically, all attorneys will be required to list their 
    state bar membership(s) as part of the online registration. An 
    attorney who is a member of a state bar association that issues bar 
    numbers will also be required to list his or her bar number(s) while 
    registering.
        \9\ In the notice of proposed rulemaking, EOIR indicated that it 
    may request that accredited representatives indicate the recognized 
    organization with which they are affiliated. In this final rule, 
    EOIR has decided to require that an accredited representative 
    indicate the recognized organization(s) with which they are 
    affiliated. This is consistent with the regulatory requirement that 
    all accredited representatives must be affiliated with an 
    organization that has received recognition by the Board pursuant to 
    8 CFR 1292.2(a).
    ---------------------------------------------------------------------------
    
        As noted above, EOIR will require an attorney or accredited 
    representative to create a unique UserID and password for online access 
    to the registry. Prior to approving a registry account and issuing an 
    EOIR ID, EOIR will also require a registry applicant to present photo 
    identification in person, so that the applicant's identity can be 
    validated. EOIR does not anticipate that the in-person presentation 
    requirement will be unduly burdensome. Applicants for registration will 
    be able to present their identification at any immigration court or at 
    the Board's Office of the Clerk. In addition, EOIR anticipates that 
    applicants may be able to present their identification at other 
    locations where EOIR hearings are conducted, including those where 
    hearings are conducted by video conference. Before the registration 
    requirement takes effect, EOIR will issue additional information on its 
    Web site regarding the locations at which registry applicants will be 
    able to present their identification.
        EOIR will include this online registration requirement consistent 
    with mandatory guidance published by the Office of Management and 
    Budget (OMB), which ``requires agencies to review new and existing 
    electronic transactions to ensure that authentication processes provide 
    the appropriate level of assurance.'' \10\ Once registered, attorneys 
    and accredited representatives will receive online access to sensitive 
    information--specifically, personally identifiable information.\11\ 
    Initially, registered attorneys and accredited representatives may have 
    online access to clients' names and addresses. In the future, once 
    EOIR's electronic filing system is introduced, registered attorneys and 
    accredited representatives will have online access to clients' court 
    files, which often include additional sensitive information such as 
    asylum applications, records of criminal convictions, and financial and 
    medical records.
    ---------------------------------------------------------------------------
    
        \10\ See OMB Memorandum to the Heads of all Departments and 
    Agencies, E-Authentication Guidance for Federal Agencies, Dec. 16, 
    2003, section 1.1, at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy04/m04-04.pdf.
        \11\ Personally identifiable information is ``information which 
    can be used to distinguish or trace an individual's identity, such 
    as their name, social security number, biometric records, etc. 
    alone, or when combined with other personal or identifying 
    information which is linked or linkable to a specific individual, 
    such as date and place of birth, mother's maiden name, etc.'' OMB 
    Memorandum for the Heads of Executive Departments and Agencies, 
    Safeguarding Against and Responding to the Breach of Personally 
    Identifiable Information, May 22, 2007, at 1 n. 1, at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-16.pdf.
    ---------------------------------------------------------------------------
    
        Applying the standards set forth in the OMB guidelines, EOIR has 
    determined that the potential impact of the unauthorized release of the 
    sensitive information described above is moderate, as the unauthorized 
    release of information such as an individual's address, asylum 
    application, records of criminal convictions, financial records, or 
    medical records ``could be expected to have a serious adverse effect'' 
    on the person involved.\12\ The OMB guidelines
    
    [[Page 19402]]
    
    require that, where the potential impact of the unauthorized release of 
    sensitive information is moderate, there must exist a ``[h]igh 
    confidence in the asserted identity's validity'' in order for an 
    individual to access government services online.\13\ EOIR's requirement 
    that applicants present photo identification in person will provide 
    EOIR with a high degree of confidence in a registering attorney's or 
    accredited representative's identity, and therefore meets the standards 
    of the OMB guidelines.
    ---------------------------------------------------------------------------
    
        \12\ OMB guidance states that the potential impact of an 
    unauthorized release of sensitive information is moderate if, ``at 
    worst, a release of personal * * * information to unauthorized 
    parties result[s] in a loss of confidentiality with a moderate 
    impact as defined in [the Federal Information Processing Standards 
    Publication 199 [FIPS PUB 199], Standards for Security 
    Categorization of Federal Information and Information Systems].'' 
    OMB Memorandum, supra note 10, section 2.2. In turn, FIPS PUB 199 
    states that the potential impact of a breach of security is moderate 
    if ``[t]he loss of confidentiality * * * could be expected to have a 
    serious adverse effect on * * * individuals.'' FIPS PUB 199, Feb. 
    2004, p. 2, at http://csrc.nist.gov/publications/fips/fips199/FIPS-PUB-199-final.pdf.
        \13\ OMB Memorandum, supra note 10, section 2.1, 2.2.
    ---------------------------------------------------------------------------
    
        This validation requirement replaces the requirement in the 
    proposed rule that each registry applicant enter the last four digits 
    of his or her Social Security number. See 68 FR 75162. EOIR notes that 
    online security standards have evolved since the proposed rule was 
    published in 2003, and EOIR believes that the proposed rule's 
    procedures for registration and validation of identity, while 
    sufficient then, would not comply with current security standards. 
    Further, OMB has broadly directed agencies to reduce their collection 
    of social security numbers.\14\
    ---------------------------------------------------------------------------
    
        \14\ See OMB Memorandum, supra note 11, at 7 (stating that 
    ``[a]gencies must now * * * review their use of social security 
    numbers in agency systems and programs to identify instances in 
    which collection or use of the social security number is 
    superfluous,'' and that ``[a]gencies must participate in government-
    wide efforts to explore alternatives to agency use of Social 
    Security Numbers as a personal identifier for both Federal employees 
    and in Federal programs'').
    ---------------------------------------------------------------------------
    
        EOIR is implementing this requirement that a registry applicant 
    validate his or her identity by presenting photo identification as a 
    final rule, because this validation method is a logical outgrowth of 
    the requirement in the proposed rule that an applicant submit the last 
    four digits of his or her social security number. See, e.g., 
    Environmental Defense Center v. U.S. E.P.A., 344 F.3d 832, 852 (9th 
    Cir. 2003); American Water Works ***'n v. E.P.A., 40 F.3d 1266, 1274 
    (D.C. Cir. 1994). Both requirements represent means of validating an 
    applicant's identity before registration is permitted; the final rule 
    simply changes how the applicant's identity is validated. An interested 
    party should have anticipated that the final rule would continue to 
    contain a validation requirement involving personally identifiable 
    information. See Environmental Defense Center, 344 F.3d at 851 (stating 
    that ``[i]n determining whether notice was adequate [where a final rule 
    differs from a proposed rule], we consider whether the complaining 
    party should have anticipated that a particular requirement might be 
    imposed''). Although, under the final rule, an attorney or accredited 
    representative must validate his or her identity in person, EOIR does 
    not believe that the requirement will impose a significant burden on 
    applicants. As noted above, applicants will be able to present their 
    identification at any immigration court and at the Board's Office of 
    the Clerk, and EOIR anticipates that applicants may also be able to 
    present their identification at other locations where EOIR hearings are 
    conducted, including those where hearings are conducted by video.
        The notice of proposed rulemaking also indicated that EOIR would 
    request, but not require, an email address during the registration 
    process. However, in the years since the proposed rule was published, 
    Internet connectivity has become extremely common and, for the legal 
    profession, a necessity. In recognition of the widespread use of 
    Internet connected computers and other devices, this final rule 
    requires that attorneys and accredited representatives who register 
    provide an email address. Further, EOIR must obtain an email address 
    for each attorney and accredited representative in order to send case-
    related notices to them electronically. The ability to do this is 
    essential to implement the electronic filing system that EOIR intends 
    to establish in the future. Given the wide availability and use of the 
    Internet in the legal profession, the provision in the final rule 
    requiring an email address during the registration process does not 
    impose a significant burden on applicants and does not constitute a 
    significant change to the proposed rule.
        Prior to implementing the registration process, the Department will 
    publish a notice in the Federal Register that provides the date on 
    which registration will commence, the date by which all attorneys or 
    accredited representatives must register, and instructions for 
    registering.
    
    IV. Responses to Comments
    
        Comment. One commenter questioned the utility of an attorney 
    registry. The commenter stated that registration would constitute an 
    unnecessary burden on attorneys because the requested information would 
    be duplicative of that requested in Form EOIR-27 and Form EOIR-28 
    (Notice of Appearance). The commenter also suggested that EOIR require 
    registration only for those persons who wish to participate in an 
    electronic filing system.
        Response. As explained above, the requirement that attorneys and 
    accredited representatives register with EOIR is part of an initiative 
    to create an electronic case access and filing system pursuant to the 
    GPEA. EOIR must register attorneys and accredited representatives as an 
    initial step in the process of creating an electronic filing system.
        Registration will primarily consist of providing, through an EOIR 
    Web page, the information described in the regulation and presenting 
    photo identification in person, so that the registry applicant's 
    identity can be validated. This process is free and relatively simple. 
    The information collected will be different, in part, from that 
    requested in Form EOIR-27 and Form EOIR-28 and will consist of the 
    applicant's name, business address(es), business telephone number(s), 
    date of birth, email address, bar admission information (if 
    applicable), and recognized organization (if applicable). As discussed 
    below, the collected information will be used to approve a unique 
    UserID and password created by each registrant that will permit access 
    to the registry and, in the future, access to EOIR's electronic filing 
    system. Also, EOIR will assign each registrant a unique EOIR ID number 
    and require that the registrant include this EOIR ID number on any Form 
    EOIR-27 or Form EOIR-28 he or she files with EOIR. In accordance with 
    the Paperwork Reduction Act, the Department is republishing in this 
    rule the new information collection, previously published in the 2003 
    proposed rule, in order to obtain additional comments from the public 
    and affected agencies.
        The Department notes that the registration of attorneys and 
    accredited representatives will benefit both EOIR and the registrants. 
    The registry will ensure that each attorney or accredited 
    representative is individually and uniquely identified and associated 
    with the registration information that the attorney or accredited 
    representative will provide during registration. This will increase 
    efficiency by reducing system errors in scheduling matters and 
    providing improved notice to attorneys and accredited representatives. 
    Further, registration will ultimately enable an electronic filing 
    system that will reduce
    
    [[Page 19403]]
    
    the time and expense presently incurred with paper filings.
        Such an electronic filing system will also lead to automation of 
    EOIR's case management system and bring greater efficiency to EOIR's 
    handling of cases. In order to yield significant benefit from 
    electronic filing, EOIR must include all attorneys and accredited 
    representatives who appear before it. Therefore, attorneys and 
    accredited representatives will be required to participate.
        Comment. One commenter expressed concern that the online 
    registration process would be complicated for users. The commenter 
    noted that attorneys who practice before EOIR have varied computer 
    skills.
        Response. The Department appreciates the concerns expressed by the 
    commenter. EOIR intends to create a user-friendly online registry and 
    instructions for usage. As discussed previously, significant changes 
    have occurred in the use of computers and the Internet since 
    publication of the proposed rule. Computer usage and Internet access 
    have become extremely common and a necessary aspect of the practice of 
    law, including for the purposes of legal research and electronically 
    filing documents with many courts. Therefore, the commenter's concerns 
    regarding the computer skills of attorneys or accredited 
    representatives are less pertinent now than they were at the time of 
    the comment in 2004.
        Comment. Two commenters expressed concerns about the proposal to 
    place a ``Practitioner Workstation'' in each immigration court and at 
    the Board to facilitate registration for attorneys and accredited 
    representatives who did not have access to the Internet. One of the 
    commenters noted that workstations would be costly to taxpayers, while 
    another thought that maintaining a workstation at each court would be 
    too burdensome.
        Response. The notice of proposed rulemaking stated that EOIR would 
    provide a ``Practitioner Workstation'' in each immigration court and at 
    the Board in order to allow attorneys and accredited representatives to 
    register electronically. As noted above, in the time that has elapsed 
    since publication of the proposed rule, Internet access has become 
    extremely common, and a necessity for the practice of law. Most 
    representatives have access to the Internet at home or work. Therefore, 
    the Department does not believe that dedicated workstations are 
    necessary at this time and cannot justify the expense of maintaining 
    them. Accordingly, the final rule does not provide for EOIR to set up 
    dedicated workstations at its immigration courts or offices. EOIR 
    recognizes that, without such workstations, an unregistered attorney or 
    accredited representative may not be able to register ``immediately'' 
    after a hearing at which he or she is permitted to appear, as 
    contemplated by the proposed rule. Therefore, EOIR has revised the 
    language in the final rule to indicate that an unregistered attorney or 
    accredited representative who is permitted to appear at a hearing must 
    register ``without delay.''
        Comment. One commenter stated that the registration system should 
    be designed to permit an unregistered attorney to appear at a hearing 
    in the place of the attorney of record in a case without having to 
    register.
        Response. The final rule provides that an ``immigration judge may, 
    under extraordinary and rare circumstances, permit an unregistered 
    attorney or accredited representative to appear at one hearing if the 
    immigration judge first acquires from the attorney or accredited 
    representative, on the record, the required registration information.'' 
    \15\ This one-time exception to the registration requirement permits a 
    single appearance by an unregistered attorney, or accredited 
    representative at one hearing.\16\ The hearing may be a master 
    calendar, individual, custody or any other type of hearing. Such 
    permission, if granted, would allow an unregistered attorney or 
    accredited representative to, for example, ``fill in'' for an attorney 
    of record prior to completing the registration process. However, the 
    final rule also requires the unregistered attorney or accredited 
    representative to complete the registration process without delay after 
    the hearing.
    ---------------------------------------------------------------------------
    
        \15\ The one-time exception applies only to ``one hearing'' 
    before an immigration judge. Note that generally, the Board decides 
    appeals by conducting a paper review of cases, and only rarely holds 
    oral argument. Because the immigration courts regularly hold 
    courtroom proceedings and the Board rarely holds oral argument where 
    attorneys or accredited representatives appear in person, the final 
    rule provides that only an immigration judge may grant a one-time 
    exception to allow an unregistered practitioner to appear.
        \16\ ``One hearing'' means a single appearance by an attorney or 
    accredited representative on behalf of a respondent(s) in a single 
    case. This means that, for example, if an unregistered attorney or 
    accredited representative is permitted under the one-time exception 
    to appear on behalf of a respondent at a master calendar hearing, 
    the attorney or accredited representative must register before 
    representing any additional respondents appearing in different cases 
    at that court session. In exceptional circumstances, in order to 
    avoid prejudice or delay to other scheduled cases, ``one hearing'' 
    may include an attorney or accredited representative appearing on 
    behalf of more than one respondent at the same court session.
    ---------------------------------------------------------------------------
    
        The Department believes that this provision is appropriate. It not 
    only provides an opportunity for an unregistered attorney or accredited 
    representative to appear when extraordinary and rare circumstances are 
    present, but also ensures that the attorney or accredited 
    representative will be properly registered in case he or she needs to 
    appear before EOIR in the future. Such an approach maintains the 
    integrity of the registry while providing flexibility when necessary. 
    Registration is not burdensome because it is free and relatively 
    simple.
        Comment. One commenter stated that an immigration judge should not 
    be authorized to permit an unregistered attorney to appear at a single 
    hearing. The commenter was concerned that immigration courts may lack 
    the ability to track and enforce the provision that an unregistered 
    attorney will only be permitted to appear at one hearing until he or 
    she is registered.
        Response. While the Department appreciates the commenter's concern, 
    the Department believes that it is necessary to provide immigration 
    judges with the discretion to permit a single appearance by an 
    unregistered attorney or accredited representative when circumstances 
    warrant. This provision safeguards the right of aliens to be 
    represented by counsel of their choice and may avoid unnecessary 
    delays. If an unregistered attorney or accredited representative 
    appears at a hearing and fails to complete the registration process 
    after the hearing, that attorney or accredited representative would not 
    be eligible to appear again until he or she registers, and EOIR may 
    also consider whether additional sanctions might be appropriate under 
    the circumstances.
        Comment. One commenter raised a number of concerns about the impact 
    of the registry on individual immigration cases. The commenter believed 
    that registration would preclude multiple attorneys from representing 
    the same alien and that EOIR should permit multiple attorneys to appear 
    in the same case. The commenter also expressed concern that an attorney 
    who leaves a law firm can simply change his or her address in the 
    registry without informing the law firm, presumably to take cases 
    belonging to the law firm to another practice. Further, the commenter 
    cautioned that EOIR needed to safeguard against a situation in which an 
    accredited representative leaves the employ of a recognized 
    organization before completing representation on all cases in which the 
    accredited representative entered an appearance. Finally, the commenter 
    suggested that when EOIR issues electronic notices, it should: transmit 
    all notices to all attorneys of record on a case; provide by
    
    [[Page 19404]]
    
    regular mail a copy of any notice sent electronically; and send a copy 
    of all electronically served notices to a represented alien's email 
    address. A different commenter wanted EOIR to ensure that all 
    correspondence from EOIR will be sent to the attorney of record on a 
    particular case, even if another attorney ``filled in'' for the 
    attorney of record at a hearing.
        Response. The registry will not change EOIR's current policies or 
    practices regarding representation. For example, multiple attorneys or 
    accredited representatives will continue to be permitted to appear 
    simultaneously in a case before the immigration court, subject to 
    conditions, and the immigration court will continue to send 
    correspondence to the attorney or accredited representative of record, 
    and not to any other attorney or representative who ``filled in'' for 
    him or her. As the Board only recognizes one attorney or accredited 
    representative of record, the Board will also only send correspondence 
    to the attorney or accredited representative of record. In addition, 
    the registry will not change EOIR's regulations providing that 
    individual attorneys or accredited representatives, as opposed to law 
    firms or recognized organizations, represent respondents. See 8 CFR 
    1292.1, 1292.4(a). If an attorney changes firms and notifies EOIR of 
    his or her address change, he or she remains the attorney of record, 
    absent the immigration judge or Board granting a request for withdrawal 
    or substitution. See 8 CFR 1003.17(b). Similarly, if an accredited 
    representative leaves a recognized organization, and notifies EOIR of 
    his or her accreditation with another recognized organization, he or 
    she remains the representative of record, absent the immigration judge 
    or Board granting a request for withdrawal or substitution. See id.
        If EOIR requires mandatory electronic filing in the future, it will 
    issue a notice of proposed rulemaking on that subject, providing an 
    opportunity to consider issues that may arise in individual cases due 
    to such a system. The Department will consider such comments when 
    determining how to establish an electronic filing system.
        Comment. One commenter expressed concern regarding attorneys who 
    may appear at hearings on behalf of a number of different law offices. 
    The commenter stated that attorneys ``who appear as `Of Counsel' to 
    other attorneys in particular cases, might find themselves 
    unnecessarily subject to sanctions or other punishment simply because 
    the nature of their practice requires them to handle cases on behalf of 
    a number of different law firms.''
        Response. Under the contemplated registration process, EOIR intends 
    to require all attorneys and accredited representatives to register 
    electronically. The fact that an individual attorney may handle cases 
    on behalf of a number of different law offices will not be problematic 
    under the registration process, as the registry will permit an 
    individual attorney or accredited representative to enter multiple 
    addresses.
        Comment. Two commenters, representing several law school clinical 
    programs, suggested that law school clinics should be able to register 
    as entities in lieu of registering individual law students. They stated 
    that permitting clinics to register as entities would make sense in 
    light of the high turnover rate of law students and the close 
    supervision that the law students receive by the faculty member who 
    runs the clinic. Both commenters asserted that registering the clinic, 
    not the individual student, would improve notice and accountability, 
    and would increase efficiency by limiting any complications that may 
    arise when cases are transferred between students when they leave the 
    clinic. One of the commenters also expressed concern that registered 
    law students may use that registration to represent aliens without the 
    clinic's oversight. The other commenter noted that while an individual 
    student should not be able to register, he or she should continue to be 
    able to enter a notice of appearance in his or her own name.
        Response. The Department agrees with the commenters that law 
    students should not be required to register with EOIR. The Department 
    believes that, given the transient nature of law students' 
    participation in clinical programs and the limited circumstances under 
    which students can represent individuals before EOIR, it would be 
    overly burdensome to require students to register. Specifically, it 
    would be impractical to design a system under which a student's 
    registration expired when he or she left a clinical program, 
    particularly given the absence of any mechanism to inform EOIR when a 
    student leaves a program. Further, there is no regulatory provision 
    permitting a law student to appear before EOIR if not enrolled in a 
    ``legal aid program or clinic,'' and it would be problematic for those 
    students to remain registered after leaving a clinical program. See 8 
    CFR 1292.1(a)(2)(ii) (stating, among other requirements, that a law 
    student must be participating ``in a legal aid program or clinic 
    conducted by a law school or non-profit organization''). For these 
    reasons, under the final rule, law students will not be required to 
    register with EOIR. This rule will not affect the ability of a law 
    student to enter an appearance in his or her own name pursuant to 8 CFR 
    1292.1(a)(2).
        The Department does not adopt the commenters' suggestion that EOIR 
    register law school clinic programs. EOIR's long-standing policy has 
    been to only recognize individuals, and not entities, as 
    representatives. See 8 CFR 1292.1, 1292.4(a). Entities, unlike 
    attorneys or accredited representatives, are not subject to 
    disciplinary sanctions for violations of the Department's regulations. 
    See 8 CFR 1003.101(b). Therefore, EOIR would have difficulty regulating 
    the conduct of entities if they were registered as the official 
    representative on a case. With respect to commenters' concerns 
    regarding accountability in cases handled by law students, the 
    Department notes that law students' appearances are governed by 
    detailed regulations intended to ensure that the students receive 
    adequate supervision. Specifically, to appear before EOIR, a law 
    student must file a statement indicating, in part, ``that he or she is 
    participating, under the direct supervision of a faculty member, 
    licensed attorney, or accredited representative, in a legal aid program 
    or clinic.'' 8 CFR 1292.1(a)(2)(ii). The adjudicator must expressly 
    permit the student to appear, and the adjudicator ``may require that 
    [the] student be accompanied by the supervising faculty member, 
    attorney, or accredited representative.'' 8 CFR 1292.1(a)(2)(iv). In 
    addition, once the final rule takes effect, the supervising faculty 
    member (if he or she is also an attorney or accredited representative), 
    attorney, or accredited representative will have the option to 
    register.\17\
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        \17\ EOIR is not requiring those attorneys, accredited 
    representatives, and faculty members in supervisory roles to 
    register. There is no regulatory requirement that, when an alien is 
    represented through a law school clinic, the supervisor enter an 
    appearance before EOIR. In addition, with respect to supervisors who 
    are not attorneys or accredited representatives, there is no 
    specific regulatory provision under which they can appear before 
    EOIR. Even though EOIR is not requiring law students or supervisors 
    to register, EOIR anticipates that, in the future, its electronic 
    filing system will permit filing where the alien is represented 
    through a law school clinic.
    ---------------------------------------------------------------------------
    
        In light of its decision not to register law students, the 
    Department has reconsidered whether it should register all of the 
    ``representatives'' outlined in 8 CFR 1292.1. Because attorneys and 
    accredited representatives account for the majority of individuals who 
    practice before EOIR and may represent
    
    [[Page 19405]]
    
    individuals without further authorization from an adjudicator, the 
    Department will require these individuals to register. However, 
    registering law graduates, reputable individuals, and accredited 
    foreign government officials would be of extremely limited value. Law 
    graduates and reputable individuals require prior permission to 
    practice from the adjudicator on each case, and reputable individuals 
    are ineligible to practice regularly before EOIR. See 8 CFR 
    1292.1(a)(2)(iv) and 1292.1(a)(3)(iv). Further, an accredited foreign 
    government official may only appear before EOIR when acting in his or 
    her official capacity and representing individuals who are from his or 
    her country. See 8 CFR 1292.1(a)(5).
        Because the Department has decided to require registration of only 
    attorneys and accredited representatives, it is no longer appropriate, 
    as originally proposed, to amend the definition of ``representative'' 
    at 8 CFR 1001.1(j) to state that all representatives must be 
    registered. Instead, it is necessary to amend 8 CFR 1292.1(a)(4) so 
    that the regulations will specifically require registration of only 
    accredited representatives, and not other types of representatives.\18\ 
    Due to this change, the Department will amend the parallel provision 
    concerning attorneys at 8 CFR 1292.1(a)(1), rather than the regulatory 
    definition of attorney at 8 CFR 1001.1(f).
    ---------------------------------------------------------------------------
    
        \18\ This final rule does not impose any new duties on or amend 
    the regulations at 8 CFR part 1292 governing reputable individuals, 
    law graduates, or accredited foreign government officials.
    ---------------------------------------------------------------------------
    
        Comment. One commenter suggested that law firms should be able to 
    register rather than the individual attorneys employed by the law firm.
        Response. As indicated above with regard to registration of law 
    clinics, EOIR has a long-standing policy of recognizing only 
    individuals as the attorney or representative of record for an alien. 
    The reasons stated for declining to permit law clinics to register are 
    equally applicable to law firms.
        Comment. One commenter was concerned that EOIR would publicly 
    disclose the information that it collects from attorneys and 
    representatives during the registration process. The commenter also 
    indicated that attorneys and representatives should not have to provide 
    their home addresses or other private or personal information to EOIR.
        Response. The information that EOIR will collect under this 
    regulation is protected by the Privacy Act of 1974. See 5 U.S.C. 552a. 
    The collected information will be part of a published system of records 
    established pursuant to the Privacy Act. See 69 FR 26179 (May 11, 
    2004). EOIR may disclose information under the routine uses specified 
    in the system of records notice. 69 FR at 26179-26180.
        The Department may amend the system of records notice related to 
    the information collected for the registry and may publish additional 
    routine uses. One such routine use, as described further below, may 
    involve the disclosure on EOIR's Web site of the name and business 
    address of each registrant so that the public will have notice of all 
    attorneys and accredited representatives who are registered to practice 
    before EOIR. The Department will publish any changes to the system of 
    records notice in the Federal Register.
        The final rule requires that individuals provide some personal 
    information to EOIR. Attorneys and accredited representatives who 
    register must provide an address; however, this address should be the 
    address at which the registering individual normally receives business 
    correspondence. If the registering individual's home address also 
    serves as his or her business address, then the individual must provide 
    that address to EOIR. Likewise, attorneys and accredited 
    representatives who register must provide a business telephone number.
        EOIR will also collect from attorneys and accredited 
    representatives their dates of birth. This information will not be 
    published, but is necessary for validation purposes and to 
    differentiate and identify individuals in the registry. There may be 
    numerous attorneys and accredited representatives with the same name. 
    This additional unique identifying information will assist EOIR in 
    properly authorizing individuals for inclusion in the registry and 
    communicating with the appropriate individual on a case. However, as 
    noted above, the Department has decided not to collect the last four 
    digits of registrants' Social Security numbers.
        Comment. One commenter believes that registration will not assist 
    in stopping the unauthorized practice of law before EOIR. The commenter 
    stated that because Form EOIR-28 already requires attorneys to provide 
    bar admission information, immigration judges and the Board are able to 
    determine if an individual is authorized to practice without a 
    registry.
        Response. The Department disagrees that a registry of attorneys and 
    accredited representatives will not assist in combating the 
    unauthorized practice of immigration law. The unauthorized practice of 
    immigration law, sometimes colloquially called ``notario'' fraud, is a 
    significant problem facing federal, state, and local regulators. The 
    Department is part of a national initiative to combat this problem.\19\ 
    Electronic registration will help EOIR to combat notario fraud. 
    Specifically, as noted above, EOIR will require that, before a registry 
    account is approved and an EOIR ID issued, an attorney or accredited 
    representative must present EOIR with photo identification so that EOIR 
    can confirm his or her identity. There is currently no requirement that 
    attorneys and accredited representatives present photo identification 
    to EOIR.
    ---------------------------------------------------------------------------
    
        \19\ On June 9, 2011, the U.S. Government launched a multi-
    agency, nationwide initiative to combat immigration services scams. 
    The Department, including EOIR, along with the Department of 
    Homeland Security and the Federal Trade Commission, are leading this 
    effort. Additional information is available at http://www.justice.gov/eoir/press/2011/UPILJointRelease%2006092011.pdf.
    ---------------------------------------------------------------------------
    
        A registry will provide EOIR adjudicators with a database of 
    individuals who are authorized to practice before them. EOIR will 
    require each registrant to provide his or her unique EOIR ID number on 
    any Form EOIR-27 or Form EOIR-28 that he or she files, to assist 
    adjudicators in more readily identifying the registrant's status. 
    Further, when EOIR eventually creates an electronic filing system, only 
    registered attorneys and accredited representatives will be able to 
    file documents electronically in cases. Finally, EOIR may provide a 
    list of names and business addresses of registered attorneys and 
    accredited representatives on its Internet Web site so that the public 
    can determine if the individual from whom they are seeking 
    representational services is in fact registered to practice before 
    EOIR. The Department invites public comment on whether it should 
    publish such a list on the Internet.
        Comment. Two commenters suggested that requiring attorneys and 
    representatives to register with EOIR would have a negative effect on 
    pro bono representation of aliens. Both commenters expressed concerns 
    that registration would deter lawyers from pro bono practice if they 
    have never before practiced immigration law because they might believe 
    that registering is too burdensome.
        Response. EOIR is committed to encouraging pro bono and low cost 
    representation of aliens. EOIR maintains and distributes to 
    unrepresented aliens a list of free legal services. See 8 CFR 1003.61 
    et seq. Further, EOIR has a program by which it officially recognizes 
    non-profit organizations and
    
    [[Page 19406]]
    
    accredits non-attorney members of those organizations to provide 
    representation to aliens for a nominal fee. 8 CFR 1292.2. Although a 
    pro bono attorney will need to register, it is a one-time event 
    consisting of a simple two-step process that can be accomplished 
    quickly, easily, and at no cost to the registrant.
        The Department does not believe that pro bono representation will 
    be significantly affected by requiring registration. Attorneys are 
    familiar with the concept of having to be admitted to practice prior to 
    appearing before a tribunal. Therefore, attorneys who have never 
    practiced immigration law should expect that they may need to register 
    in order to practice before EOIR.
        Further, attorneys wishing to appear on EOIR's list of free legal 
    services must apply to be placed on the list, see 8 CFR 1003.62, 
    1003.63, and recognized organizations that seek accreditation of non-
    attorneys to practice before EOIR must apply for that accreditation. 
    See 8 CFR 1292.2(d); Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008). 
    There is no evidence that either of these requirements has 
    significantly affected pro bono representation. Likewise, the 
    Department does not expect that the registration process outlined in 
    this final rule will deter pro bono representation.
        Comment. One commenter stated that the regulation should require 
    counsel for the Department of Homeland Security (DHS) to register with 
    EOIR.
        Response. The purpose of the registry is to create a database of 
    all private attorneys and accredited representatives who appear before 
    EOIR. This registry will ensure that EOIR is only allowing authorized 
    individuals to practice before its immigration judges and the Board. 
    The reasons for registering private attorneys and accredited 
    representatives are not relevant to DHS counsel. DHS counsel are 
    Federal employees and may include any officer assigned to represent DHS 
    in any proceeding before an immigration judge or the Board. See 8 CFR 
    1001.1(s). Therefore, it is extremely unlikely that an unauthorized 
    individual would represent DHS at an EOIR proceeding. For these 
    reasons, the Department declines to include DHS personnel in the 
    registry.
        Comment. One commenter suggested that the registration process 
    would inhibit robust representation of individuals in immigration 
    proceedings by allowing the government to track which lawyers are 
    taking ``controversial'' cases.
        Response. EOIR disagrees that the registration process would 
    inhibit robust representation of individuals in immigration 
    proceedings. EOIR must register attorneys and representatives as an 
    initial step in the process of creating an electronic case access and 
    filing system. Registering attorneys and accredited representatives 
    will reduce scheduling errors and avoid confusion as to who is 
    representing a particular alien. In addition, registered attorneys and 
    accredited representatives will be able to update their registration 
    information electronically via the Internet and, in the future, access 
    EOIR's electronic filing system to submit and potentially retrieve 
    documents.\20\ These benefits will encourage, not detract from, robust 
    representation on behalf of individuals in immigration proceedings.
    ---------------------------------------------------------------------------
    
        \20\ As noted above, EOIR intends to issue guidance, as needed, 
    to be followed when an attorney or accredited representative seeks 
    to change his or her address.
    ---------------------------------------------------------------------------
    
        EOIR is committed to providing fair and unbiased adjudications and 
    in issuing this rule has no intent to inhibit the representation of 
    aliens. The registration process would have no impact on ``the 
    practitioner's duty to represent zealously his or her client within the 
    bounds of the law.'' See 8 CFR 1003.102.
    
    V. Regulatory Requirements
    
    Regulatory Flexibility Act
    
        The Attorney General, in accordance with the Regulatory Flexibility 
    Act, has reviewed this regulation and, by approving it, certifies that 
    this rule will not have a significant economic impact on a substantial 
    number of small entities. See 5 U.S.C. 605(b).
        The Department estimates that no more than 54,000 private attorneys 
    and accredited representatives will register electronically the first 
    year in order to practice before EOIR. Given that registration only 
    needs to be done once, EOIR anticipates that in each subsequent year, 
    the number of new initial registrants will be significantly lower than 
    the number of such registrants for the first year. While EOIR does not 
    keep statistics on the size of the firms and organizations of attorneys 
    and accredited representatives practicing before EOIR, many of these 
    attorneys and accredited representatives may be classified as or 
    employed by ``small entities'' as defined under section 601 of the 
    Regulatory Flexibility Act. In particular, the Department recognizes 
    that there are attorneys whose firms may be classified as ``small 
    businesses'' and, thus, as ``small entities'' under section 601. For 
    example, there may be attorneys practicing before EOIR who are solo 
    practitioners or employed by firms with 2 to 30 people. There are also 
    non-profit religious, charitable, social service, or similar 
    organizations recognized to practice before EOIR under 8 CFR 1292 who 
    employ accredited representatives. Some of these recognized 
    organizations may also be classified as ``small organizations'' and, 
    thus, as ``small entities'' under section 601.
        Although the exact number of law firms and recognized organizations 
    that may be classified as ``small entities'' is not known, the 
    Department certifies that this rule will not have a significant adverse 
    economic impact on a substantial number of these entities. Registering 
    electronically with EOIR will be a simple, routine process similar to 
    registering online for a library card or other similar services. In 
    order to register, attorneys and accredited representatives will need 
    to access the Internet and complete an electronic registration 
    providing the following information: name, business address(es), 
    business telephone number(s), date of birth, email address, bar 
    admission information (if applicable), and recognized organization (if 
    applicable). Prior to approving a registry account and issuing an EOIR 
    ID, EOIR will also require registrants to validate their identities by 
    presenting photo identification in person. Completion of the 
    registration process, including registering online and presenting photo 
    identification for identity validation, will take approximately 10 
    minutes for each registrant and only needs to be completed once.
        There will be no financial costs to attorneys or accredited 
    representatives to register. EOIR will not assess a fee to register. 
    Most attorneys and accredited representatives practicing before EOIR 
    currently have Internet access in order to conduct legal research, 
    communicate with clients, access government resources, and submit 
    filings to Federal courts of appeal and DHS; therefore, they will not 
    need to incur any new costs in order to obtain access. Consequently, 
    the Department believes that there will not be a significant adverse 
    economic impact on the great majority of registrants.
        As described below in the certification under Executive Orders 
    12866 and 13563, the Department believes that such registration will 
    economically benefit registrants. By creating a registry in which each 
    attorney or accredited representative is individually and uniquely 
    identified, EOIR will be able to improve its correspondence with 
    registrants regarding immigration matters,
    
    [[Page 19407]]
    
    including scheduling matters before EOIR. This will reduce the 
    likelihood that attorneys and accredited representatives will need to 
    incur costs in communicating with clients and EOIR regarding 
    incorrectly scheduled hearings. In addition, registration ultimately 
    will enable an electronic filing system that will reduce the time and 
    expense presently incurred with paper filings. Attorneys and accredited 
    representatives will reduce the costs associated with purchasing paper 
    and printing supplies to prepare paper-based forms and petitions and 
    mailing such filings to EOIR and government counsel.
        Therefore, the Department certifies that this rule will not have a 
    significant adverse economic impact on a substantial number of small 
    entities.
    
    Unfunded Mandates Reform Act of 1995
    
        This rule will not result in the expenditure by state, local, and 
    tribal governments, in the aggregate, or by the private sector, of $100 
    million or more in any one year, and it will not significantly or 
    uniquely affect small governments. Therefore, no actions were deemed 
    necessary under the provisions of the Unfunded Mandates Reform Act of 
    1995.
    
    Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined in section 251 of the 
    Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
    U.S.C. 804. As discussed in the certification under the Regulatory 
    Flexibility Act, attorneys and accredited representatives will not be 
    assessed a fee to register and, as Internet access in the legal field 
    is ubiquitous, most will not need to incur any new costs in order to 
    obtain access to the Internet. Thus, this rule will not result in an 
    annual effect on the economy of $100 million or more; a major increase 
    in costs or prices; or significant adverse effects on competition, 
    employment, investment, productivity, innovation, or on the ability of 
    United States-based enterprises to compete with foreign-based 
    enterprises in domestic and export markets.
    
    Executive Orders 12866 and 13563--Regulatory Planning and Review
    
        The final rule is considered by the Department of Justice to be a 
    ``significant regulatory action'' under Executive Order 12866, section 
    3(f)(4), Regulatory Planning and Review. Accordingly, the regulation 
    has been submitted to OMB for review. The Department certifies that 
    this regulation has been drafted in accordance with the principles of 
    Executive Order 12866, section 1(b), and Executive Order 13563. 
    Executive Orders 12866 and 13563 direct agencies to assess all costs 
    and benefits of available regulatory alternatives and, if regulation is 
    necessary, to select regulatory approaches that maximize net benefits 
    (including potential economic, environmental, public health, and safety 
    effects, distributive impacts, and equity). Executive Order 13563 
    emphasizes the importance of quantifying both costs and benefits, 
    reducing costs, harmonizing rules, and promoting flexibility.\21\
    ---------------------------------------------------------------------------
    
        \21\ Following the issuance of Executive Order 13563, the 
    Department issued its ``Preliminary Plan for Retrospective Analysis 
    of Existing Rules'' (Plan) on May 18, 2011, identifying several 
    regulations that it plans to review. See Plan, available online at 
    http://www.justice.gov/open/preliminary-doj-rr-plan.pdf. In a 
    separate rulemaking, the Department will address the proposed 
    amendments that it is considering as part of the retrospective 
    review under the Plan. Although this rulemaking addressing EOIR's 
    registry is not part of the Department's retrospective review, it is 
    consistent with the goals of that review. Specifically, it will 
    improve the immigration courts' and Board's ability to function 
    efficiently and, as the first step toward electronic filing, it will 
    lead to major benefits for attorneys and accredited representatives 
    who practice before EOIR.
    ---------------------------------------------------------------------------
    
        This rule establishes procedures for private attorneys and 
    accredited representatives to register electronically with EOIR as a 
    condition of representing aliens before immigration judges and the 
    Board. Requiring attorneys and accredited representatives to register 
    electronically with EOIR is a necessary precursor to implementing an 
    electronic case access and filing system.
        The registration of attorneys and accredited representatives will 
    greatly benefit EOIR. Through the registration process, EOIR will 
    ensure that each attorney or accredited representative will be 
    individually identified and associated with the registration 
    information that the attorney or accredited representative will provide 
    during registration. This will reduce errors concerning an attorney's 
    or accredited representative's correct mailing address and avoid 
    confusion as to who is representing a particular alien. EOIR will 
    collect from each authorized registrant a unique UserID and password 
    that will permit registrants to access the registry in order to update 
    their registration information online and, in the future, to access 
    EOIR's electronic filing system. Further, EOIR will use the collected 
    information to assign a unique EOIR ID number to each registrant. EOIR 
    will require each registrant to provide his or her unique EOIR ID 
    number on any Form EOIR-27 or Form EOIR-28 that he or she files to 
    assist adjudicators in more readily identifying the registrant's 
    status.
        An online registration process will be required for registration. 
    For the initial registration, attorneys and accredited representatives 
    will be required to complete an electronic registration in which they 
    must provide the following information: name, business address(es), 
    business telephone number(s), date of birth, email address, bar 
    admission information (if applicable), and recognized organization (if 
    applicable).
        The Department estimates that no more than 54,000 attorneys and 
    accredited representatives will register electronically the first year. 
    Given that registration only needs to be done once, EOIR anticipates 
    that in each subsequent year, the number of initial registrants will be 
    significantly lower than the number of such registrants for the first 
    year. For each registrant, completion of the registration process, 
    including registering online and presenting photo identification in 
    person for identity validation, will take approximately 10 minutes. 
    There is no fee to register. Consequently, the Department believes that 
    the costs to attorneys and accredited representatives to complete the 
    registration process with EOIR will be nominal.
        The registration of attorneys and accredited representatives will 
    greatly benefit registrants. The registry will ensure that each 
    attorney or accredited representative is individually and uniquely 
    identified and associated with the registration information that the 
    attorney or accredited representative will provide during registration. 
    This will increase efficiency by reducing system errors in scheduling 
    matters and providing improved notice to attorneys and accredited 
    representatives. In addition, registration ultimately will enable an 
    electronic filing system that will reduce the time and expense 
    presently incurred with paper filings.
    
    Executive Order 13132--Federalism
    
        This rule will not have substantial direct effects on the States, 
    on the relationship between the National Government and the States, or 
    on the distribution of power and responsibilities among the various 
    levels of government. Therefore, in accordance with section 6 of 
    Executive Order 13132, it is determined that this rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
    [[Page 19408]]
    
    Executive Order 12988--Civil Justice Reform
    
        This rule meets the applicable standards set forth in sections 3(a) 
    and 3(b)(2) of Executive Order 12988.
    
    Paperwork Reduction Act
    
        The Department of Justice has submitted a request for approval of a 
    new information collection instrument to OMB for review in accordance 
    with the Paperwork Reduction Act (PRA) of 1995. The proposed new 
    information collection was published and comments regarding the 
    collection were requested in the notice of proposed rulemaking in 2003 
    in accordance with 5 CFR 1320.11. See 68 FR 75160, 75163. The proposed 
    new information collection is republished in this rule to obtain 
    comments from the public and affected agencies. Comments are encouraged 
    and will be accepted for sixty days in conjunction with the final rule. 
    EOIR will not commence the proposed new information collection until it 
    has satisfied its obligations under the PRA.
        If you have any suggestions or comments, especially on the 
    estimated public burden or associated response time, or need a copy of 
    the proposed new information collection instrument with instructions or 
    additional information, please contact the Department as noted above. 
    Written comments and suggestions from the public and affected agencies 
    concerning the proposed new information collection instrument are 
    encouraged.
        Comments on this issue 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 and (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).
        The new information collection instrument sponsored by the 
    Department will apply to practitioners and has been designated as 
    ``Attorney and Accredited Representative Registration Before the 
    Executive Office for Immigration Review.'' The new collection will be 
    administered through electronic means exclusively.
        The collected information will be used to approve a unique UserID 
    and password permitting registrants to access the registry in order to 
    update their registration information online and, in the future, to 
    access EOIR's electronic filing system. Further, EOIR will use the 
    collected information to assign a unique EOIR ID number to each 
    registrant. EOIR will require each registrant to provide his or her 
    unique EOIR ID number on any Form EOIR-27 or Form EOIR-28 that he or 
    she files to assist adjudicators in more readily identifying the 
    registrant's status.
        The Department estimates an average response time for the new 
    information collection instrument at 10 minutes per response (including 
    registering online and presenting photo identification to EOIR for 
    identity validation), with a total number of respondents of no more 
    than 54,000 individuals for the first year. This figure includes those 
    currently practicing before EOIR. Given that registration only needs to 
    be done once, EOIR anticipates that in each subsequent year, the number 
    of initial registrants (i.e., new attorneys who seek to appear before 
    EOIR) will be significantly lower than the number of such registrants 
    for the first year. The total public burden associated with the new 
    collection is no more than 9,000 burden hours for the first year. EOIR 
    anticipates burden hours in future years to be significantly lower than 
    in the first year.
    
    List of Subjects in 8 CFR Part 1292
    
        Administrative practice and procedures, Immigration, Reporting and 
    recordkeeping requirements.
    
        For the reasons set forth in the preamble, part 1292 of title 8 of 
    the Code of Federal Regulations is amended as follows:
    
    PART 1292--REPRESENTATION AND APPEARANCES
    
    0
    1. The authority citation for part 1292 is revised to read as follows:
    
        Authority:  8 U.S.C. 1103, 1252b, 1362; 6 U.S.C. 521, 522.
    
    0
    2. Amend Sec.  1292.1 by:
    0
    a. Revising paragraphs (a)(1) and (a)(4); and by
    0
    b. Adding paragraph (f), to read as follows:
    
    
    Sec.  1292.1  Representation of others.
    
        (a) * * *
        (1) Attorneys in the United States. Any attorney as defined in 
    Sec.  1001.1(f) of this chapter and who, once the registration 
    requirements in paragraph (f) of this section have taken effect, is 
    registered to practice with the Executive Office for Immigration 
    Review.
    * * * * *
        (4) Accredited representatives. A person representing an 
    organization described in Sec.  1292.2 of this chapter who has been 
    accredited by the Board, and who, once the registration requirements in 
    paragraph (f) of this section have taken effect, is registered to 
    practice with the Executive Office for Immigration Review.
    * * * * *
        (f) Registration requirement for attorneys and accredited 
    representatives. The Director or his designee is authorized to 
    register, and establish procedures for registering, attorneys and 
    accredited representatives, specified in paragraph (a) of this section, 
    as a condition of practice before immigration judges or the Board of 
    Immigration Appeals. Such registration procedures will include a 
    requirement for electronic registration and that each registrant 
    validate his or her identity by presenting photo identification. The 
    Director or his designee may administratively suspend from practice 
    before the immigration judges and the Board any attorney or accredited 
    representative who fails to provide the following required registration 
    information: name, business address(es), business telephone number(s), 
    date of birth, email address, bar admission information (if 
    applicable), and recognized organization (if applicable), or who, after 
    having provided that information, fails to present photo identification 
    or comply with any other validation requirements implemented by the 
    Director. After such a system has been established, an immigration 
    judge may, under extraordinary and rare circumstances, permit an 
    unregistered attorney or accredited representative to appear at one 
    hearing if the immigration judge first acquires from the attorney or 
    accredited representative, on the record, the required registration 
    information. An unregistered attorney or accredited representative who 
    is permitted to appear at a hearing in such circumstances must complete 
    the electronic registration process without delay after the hearing at 
    which he or she is permitted to appear.
    
         Dated: March 22, 2013.
    Eric H. Holder, Jr.,
    Attorney General.
    [FR Doc. 2013-07526 Filed 3-29-13; 8:45 am]
    BILLING CODE 4410-30-P
    
    
    
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