[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]

[Rules and Regulations]

[Pages 56247-56259]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2022-19882]

 

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Rules and Regulations

                                                Federal Register

________________________________________________________________________

 

This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

 

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 87, No. 177 / Wednesday, September 14, 2022 /

Rules and Regulations

 

[[Page 56247]]

 

DEPARTMENT OF JUSTICE

 

Executive Office for Immigration Review

 

8 CFR Parts 1001 and 1003

 

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

RIN 1125-AA83

 

Professional Conduct for Practitioners--Rules and Procedures, and

Representation and Appearances

 

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

 

ACTION: Final rule.

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SUMMARY: On March 27, 2019, the Department of Justice (the Department)

published in the Federal Register an Advanced Notice of Proposed

Rulemaking (ANPRM) to solicit public comments regarding whether the

Department should allow practitioners who appear before the Executive

Office for Immigration Review (EOIR) to engage in limited

representation or representation of a noncitizen during only a portion

of the case, beyond what the regulations permitted. On September 30,

2020, after reviewing the comments to the ANPRM, the Department

published in the Federal Register a Notice of Proposed Rulemaking

(NPRM). The NPRM proposed to amend the regulations to allow

practitioners the option of entering a limited appearance to assist pro

se individuals with drafting, writing, or filing applications,

petitions, briefs, and other documents in proceedings before EOIR, as

opposed to requiring the practitioner to enter an appearance to become

the ``practitioner of record'' and thereby to accept certain

obligations and responsibilities. This final rule responds to comments

received in response to the NPRM and adopts the proposed rule with

changes as described below. Specifically, this final rule permits

practitioners to provide document assistance to pro se individuals by

entering a limited appearance through new Forms EOIR-60 or EOIR-61,

without requiring the practitioner to become the practitioner of record

or to submit a motion to withdraw or substitute after completing the

document assistance.

 

DATES: This rule is effective November 14, 2022.

 

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,

Office of Policy, Executive Office for Immigration Review, 5107

Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-

0289 (not a toll-free call).

 

SUPPLEMENTARY INFORMATION:

I. Background

 

    The Immigration and Nationality Act (INA) provides that noncitizens

appearing before an immigration judge ``shall have the privilege of

being represented, at no expense to the Government, by counsel of the

[noncitizen]'s choosing who is authorized to practice in such

proceedings.'' INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA

292, 8 U.S.C. 1362 (``In any removal proceedings before an immigration

judge . . . the person concerned shall have the privilege of being

represented (at no expense to the Government) by such counsel . . . as

[the person concerned] shall choose.''); 8 CFR 1003.16(b) (``The

[noncitizen] may be represented in proceedings before an Immigration

Judge by an attorney or other representative of [the person

concerned's] choice in accordance with 8 CFR part 1292, at no expense

to the government.'').

    The Department has promulgated regulations that establish rules of

procedure before the immigration courts and the Board of Immigration

Appeals (BIA), including rules specifying who is authorized to provide

representation and standards of professional conduct governing those

authorized to provide representation. See 8 CFR Subpart A (BIA rules of

procedure); 8 CFR Subpart C (immigration court rules of procedure); 8

CFR Subpart G (rules of professional conduct for practitioners); 8 CFR

1292.1 (describing individuals authorized to provide representation

before EOIR). Under those regulations, individuals authorized to

provide representation--i.e., attorneys, law students, law graduates,

reputable individuals, accredited representatives, and accredited

officials--are known as ``practitioners.'' 8 CFR 1003.101(b); see also

8 CFR 1292.1. In order to become the ``practitioner of record,'' which

authorizes and requires the practitioner to appear before EOIR on

behalf of the respondent, file all documents on behalf of the

respondent, and accept service of process of all documents filed in the

proceedings, practitioners must file a Notice of Entry of Appearance as

Attorney or Representative Before the Board of Immigration Appeals

(Form EOIR-27) or a Notice of Entry of Appearance as Attorney or

Representative Before the Immigration Court (Form EOIR-28). 8 CFR

1003.3(a)(3), 1003.17(a), 1003.38(g), 1292.4(a). When a practitioner

enters an appearance using these forms, that individual is the

practitioner of record in the case for which the appearance form was

filed, unless and until the immigration judge or the BIA grants a

motion to withdraw or substitute. 8 CFR 1003.17(a)(3), 1003.38(g)(3),

1292.4(a).

    Prior to a 2015 final rule, an entry of appearance in immigration

court through the filing of a Form EOIR-28 required a practitioner to

represent a noncitizen in all proceedings before the immigration court,

including removal and bond proceedings if the noncitizen was

detained.\1\ See Separate Representation for Custody and Bond

Proceedings, 80 FR 59500 (Oct. 1, 2015). The 2015 final rule allowed

practitioners to enter an appearance to represent a noncitizen in

``custody or bond proceedings only, any other proceedings only, or for

all proceedings.'' 8 CFR 1003.17(a). In sum, a practitioner can enter

an appearance to be a practitioner of record in one of three

capacities: (1) all proceedings, to include removal, deportation,

exclusion, credible and reasonable fear, or any other proceeding type,

and custody or bond; (2) custody or bond proceedings only; or (3) all

proceedings other than custody and bond proceedings. A practitioner who

enters an appearance in one of the three capacities becomes

 

[[Page 56248]]

 

the practitioner of record for the designated proceeding(s). That

practitioner then has certain obligations and responsibilities,

including completing written filings, making appearances in court, and

accepting service of documents, unless and until the immigration judge

permits withdrawal or substitution of counsel. See 8 CFR 1003.17(b).

Separate appearances in custody and non-custody proceedings are

permitted under that final rule, and this rule does not alter that. As

has been the case since 2015, a noncitizen remains ``pro se'' in any

type of proceeding in which a practitioner has not entered an

appearance to be the practitioner of record. For example, if a

practitioner entered an appearance to be practitioner of record in

custody or bond proceedings only, the noncitizen would remain ``pro

se'' in all proceedings other than custody or bond proceedings. See 80

FR at 59500 (authorizing a practitioner to enter an appearance solely

for custody or bond proceedings before the immigration court, such that

noncitizen would appear pro se for all other proceedings if no

practitioner has entered an appearance for those other proceedings).

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    \1\ The 2015 amendment did not alter the rules for entering an

appearance before the BIA. A separate entry of appearance was

already required when an appeal was filed with the BIA from a

decision of an immigration judge or a District Director decision.

See 8 CFR 1003.38(g).

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    For many years, members of the public have requested that the

Department modify EOIR's regulations to allow practitioners to engage

in limited appearances before EOIR on behalf of pro se noncitizens,

without the practitioner being obligated to become the practitioner of

record and represent the noncitizen for the entire proceeding, so that

the practitioner could provide in-person representation for a discrete,

limited part of a proceeding or draft forms or applications beyond what

is already permitted by separate appearances as discussed above. See,

e.g., 84 FR at 11447 (referencing ``a comment seeking a broadening of

the limited scope of representation permitted''). Commenters in support

of allowing such limited appearances contended that doing so would

enable practitioners to provide legal services to a greater number of

noncitizens in immigration proceedings and thereby improve the

efficiency of immigration proceedings. Specifically, the commenters

indicated that the greatest benefit of a limited appearance mechanism

would be to permit practitioners to provide pro se noncitizens with

assistance in the preparation, drafting, and filing of documents,

without obligating those practitioners to become the practitioners of

record, as is required under the current regulations.

    The Department agrees and acknowledges the importance of allowing

practitioners to limit their appearance to document assistance to

enhance the efficiency and fairness of immigration proceedings. After

consideration, the Department has determined that permitting limited

appearances to provide document assistance to pro se noncitizens would

be beneficial because it would give practitioners greater flexibility

to assist noncitizens appearing pro se before EOIR, provide increased

access to competent legal services for noncitizens in immigration

proceedings, and aid EOIR in adjudicating cases of pro se noncitizens

who receive document assistance from practitioners. The new rule does

not allow limited appearances for in-person representation, beyond what

is already permitted under separate appearances as described above. See

80 FR at 59500-01; see also Matter of Velasquez, 19 I&N Dec. 377, 384

(BIA 1986).\2\

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    \2\ This final rule supersedes the statement in Matter of

Velasquez that ``there is no `limited' appearance of counsel in

immigration proceedings,'' 19 I&N Dec. at 384, because this rule

amends the regulation that Matter of Velasquez relied upon.

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 II. Summary of Changes

 

    The final rule expands the circumstances in which practitioners may

assist noncitizens in proceedings before an immigration court and the

BIA by allowing practitioners to enter limited appearances--without

further obligations or responsibilities to the immigration court, the

BIA, or the noncitizen--when only providing assistance with documents

filed in those proceedings. The rule clarifies when practitioners must

file an appearance and the effect of the entry of a particular

appearance. There is no change to the mechanism that causes a

practitioner to become the ``practitioner of record,'' which authorizes

and requires the practitioner to appear before EOIR on behalf of the

respondent, file all documents on behalf of the respondent, and accept

service of process of all documents filed in the proceedings. A

practitioner becomes a practitioner of record only by entering an

appearance using a Form EOIR-27 or Form EOIR-28. Under this rule,

practitioners may also choose to enter a limited appearance on a Form

EOIR-60 or EOIR-61 when only providing document assistance to pro se

noncitizens. Such a limited appearance does not restrict practitioners

from later filing a Form EOIR-27 or EOIR-28 to enter an appearance as

the practitioner of record.

    ``Document assistance'' is the drafting, completing, or filling in

of blank spaces of a specific motion, brief, form, or other document or

set of documents intended to be filed with the immigration court or

BIA. If they are not otherwise the practitioner of record,

practitioners who engage in document assistance must disclose such

assistance by entering a limited appearance. To facilitate this

process, EOIR has created two new entry of appearance forms: Form EOIR-

60 (Notice of Entry of Limited Appearance for Document Assistance

Before the Board of Immigration Appeals) and Form EOIR-61 (Notice of

Entry of Limited Appearance for Document Assistance Before the

Immigration Court). In addition, practitioners must identify themselves

on the documents with which they assisted and complete the preparer

section on forms with which they assisted.

    Unlike an entry of appearance to become the practitioner of record

through the filing of a Form EOIR-27 or EOIR-28, the entry of a limited

appearance for document assistance pursuant to a Form EOIR-60 or EOIR-

61 does not impose any continuing obligations to the noncitizen, the

immigration court, or the BIA on the part of the practitioner. See 8

CFR 1003.17(b)(2), 1003.38(g)(2)(ii). Practitioners who enter a limited

appearance do not become the practitioner of record and, as such, do

not have the authorization, obligation, or responsibility to appear on

behalf of the noncitizen, to otherwise represent the noncitizen before

the immigration court or the BIA, or to move to substitute or withdraw

from the proceeding. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii). A

noncitizen who receives only document assistance from a practitioner

remains pro se unless and until a practitioner files a Form EOIR-27 or

EOIR-28 to become the practitioner of record. See 8 CFR 1003.17(b)(2),

1003.38(g)(2)(ii). Indeed, only when a practitioner enters an

appearance via an EOIR-27 or EOIR-28 and becomes the practitioner of

record will the practitioner receive notice of a noncitizen's upcoming

hearings, be sent filings in the case and be permitted access to the

case file and appear in person on the noncitizen's behalf.

    As explained infra, the final rule amends the definitions of

``practice'' and ``preparation'' in order to provide greater clarity

and specificity to those terms. Further, the final rule clarifies the

duty to enter an appearance and any disciplinary consequences

associated with failing to enter the proper appearance, whether through

a Form

 

[[Page 56249]]

 

EOIR-27, EOIR-28, EOIR-60, or EOIR-61, are not determined by whether

the practitioner is engaging in ``practice'' or is engaging in

``preparation.'' Practitioners enter an appearance through Form EOIR-27

or Form EOIR-28 when they seek to become the practitioner of record and

to take on the responsibilities and obligations attendant to that

status. Practitioners enter a limited appearance through Form EOIR-60

or Form EOIR-61 when they only assist with documents intended to be

filed with EOIR, regardless of whether the practitioners' work related

to those documents constitutes ``practice'' or ``preparation.''

    As noted below and as was already the case, all practitioner

conduct--not just conduct that requires a practitioner to enter an

appearance as the attorney of record--may be subject to EOIR's

disciplinary rules. See 8 CFR 1003.101(b); 8 CFR 1003.102. Accordingly,

practitioners who provide assistance that requires an appearance on

Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 are subject to EOIR's Rules

of Professional Conduct. The final rule amends the disciplinary rules

to amend practitioners' obligations to enter an appearance on the

appropriate Form EOIR-27, EOIR-28, EOIR-60, or EOIR-61 and obligations

regarding the drafting and signing of documents. Such amendments are

discussed further below.

    Given that only ``practitioners'' may enter an appearance before

EOIR, the changes made in this final rule regarding the circumstances

in which a practitioner must enter an appearance do not apply to non-

practitioners. Non-practitioners continue to be permitted to assist

noncitizens with the ``preparation'' of documents, which consists

solely of filling in blank spaces on printed forms with information

provided by the applicant or petitioner that are to be filed with or

submitted to EOIR, only where such acts do not include the exercise of

professional judgment to provide legal advice or legal services.\3\

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    \3\ Some commenters raised the concern that this rulemaking will

not achieve the Department's goals of preventing fraud by

individuals not authorized to practice immigration law if EOIR's

appearance and disciplinary rules only apply to practitioners. While

the disciplinary rules have always only applied to practitioners,

complaints of non-practitioner fraud will continue to be

investigated by EOIR's Fraud and Abuse Prevention Program. See EOIR,

Fraud and Abuse Prevention Program, available at https://www.justice.gov/eoir/fraud-and-abuse-prevention-program (last

updated Mar. 4, 2020). Additionally, permitting limited appearances

for document assistance will likely increase the capacity of

practitioners that will be able to assist noncitizens and as such,

noncitizens will likely be less inclined to seek out the services of

non-practitioners who may be acting unscrupulously and should be

solely limited to ``preparation'' of documents.

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    In summary, the final rule establishes or reaffirms that

practitioners: (1) must enter an appearance on Form EOIR-27 or Form

EOIR-28 to become the practitioner of record and thereby be authorized

and required to appear for hearings or arguments on behalf of a

noncitizen before the immigration courts or the BIA, to file documents

on behalf of a noncitizen, and to accept service of process on behalf

of a noncitizen of all documents filed in a proceeding; (2) must enter

a limited appearance on Form EOIR-60 or Form EOIR-61 when they provide

document assistance to a pro se noncitizen, regardless of whether the

assistance involves ``practice'' (i.e., factual or legal analysis in

drafting or completion of a document) or simply ``preparation'' (i.e.,

filling in the blank spaces of a pre-printed form with information

provided by the noncitizen); and (3) are not required to enter an

appearance as described above when solely providing legal advice or

engaging in a legal consultation pertaining to a noncitizen but not

assisting with documents or appearing before EOIR on behalf of the

noncitizen, even though such conduct constitutes ``practice.'' The

final rule also reaffirms that non-practitioners cannot file an

appearance or engage in ``practice'' under any circumstances and are

limited to engaging in ``preparation.''

 

III. Comments and Responses

 

    The comment period for the NPRM closed on October 30, 2020. The

Department received 41 comments. Non-governmental organizations, legal

advocacy groups, non-profit organizations, and religious organizations

submitted the majority of these comments, and individual commenters

submitted the remainder. The Department provided an additional 60-day

notice and comment period for the proposed Notices of Entry of Limited

Appearance for Document Assistance, Forms EOIR-60 and EOIR-61. See

Agency Information Collection Activities; Proposed Collection; Comments

Requested; Notice of Entry of Limited Appearance for Document

Assistance Before the Board of Immigration Appeals; and Notice of Entry

of Limited Appearance for Document Assistance Before the Immigration

Court, 86 FR 48443 (Aug. 30, 2021). No comments were received during

that comment period. Both in response to the results of the public

solicitations for comments and as the result of further consideration,

the Department has revised the proposed rule as discussed below.

    Below, the Department has summarized the comments and explained the

changes the Department has made in response. The comments are addressed

by topic rather than by reference to a specific commenter to prevent

confusion due to overlapping comments and multiple subjects raised in

some of the submissions.

    Some commenters asserted that the rule did not adequately explain

the goals and reasons for the proposed changes, why the Department was

departing from existing practice of prohibiting limited appearances,

that the revised definitions of ``practice'' and ``preparation'' were

arbitrary and capricious, as well as vague, and that the Department did

not consider the effect of the rule on various service-provider

programs. They stated that these concerns rise to a violation of the

Administrative Procedure Act (APA) and the U.S. Constitution. The

Department believes that the reasoning for the proposed changes was

sufficiently set forth in both the ANPRM and NPRM, and that the NPRM

adequately addressed these issues as well as the rule's expected impact

on the public. Nevertheless, the Department provides further

explanation and clarification to address these concerns herein.

 

  1. Entering an Appearance

 

    The Department received many comments expressing confusion or

demonstrating a lack of clarity in the proposed rule as to when the

proposed rule would require filing an entry of appearance. The comments

reflected confusion about the scope of the definitions of ``practice,''

``preparation,'' and ``representation''; the effect of filling out a

form's ``preparer section'' on the obligation to enter an appearance;

and the obligations, if any, of practitioners after the practitioner

finishes providing document assistance.

    Additionally, the Department received many comments that the

proposed definitions of ``practice,'' ``preparation,'' and

``representation'' as defined in the NPRM could be interpreted by

practitioners to create additional barriers to representation and have

the overall effect of providing fewer noncitizens with legal assistance

in immigration proceedings.\4\

 

[[Page 56250]]

 

Specifically, commenters stated that the NPRM drastically expands the

``practice'' definition to include nearly any interactions

practitioners have with pro se noncitizens because typically all

interactions between practitioners and pro se noncitizens include

provision of legal advice or the exercise of legal judgment. The

proposed rule defined ``representation'' as including any form of

``practice'' because it stated in its text that ``representation before

EOIR includes practice.'' See Professional Conduct for Practitioners--

Rules and Procedures, and Representation and Appearances, 85 FR 61640,

61651 (Sept. 30, 2020) (emphasis in original). Commenters expressed

concern that this expanded definition could discourage representation

because any form of ``practice''--including the provision of legal

advice that does not include document assistance--would require the

entry of an appearance and thereby diminish the opportunity for pro se

noncitizens to receive legal assistance or advice. Commenters alleged

that nonprofit providers in particular, who already have limited

resources, would limit the scope of their services so as not to engage

in ``representation.''

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    \4\ One commenter recommended that the Department pursue

universal federally funded representation in immigration proceedings

in lieu of this rule and to combat such potential chilling effect on

representation. This recommendation is beyond the Department's scope

of rulemaking authority under current law.

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    Considering these comments and the concerns raised, the Department

has amended the regulatory provisions related to entry of appearances

before the immigration courts and the BIA, see 8 CFR 1003.17,

1003.38(g), as well as the definitions of ``practice'' and

``preparation,'' see 8 CFR 1001.1(i), (k). The final rule eliminates

the reference to ``represented'' at 8 CFR 1003.17(a) and 1003.38(g) and

does not otherwise rely on the definitions of ``representation'' or

``practice'' to determine when an entry of appearance pursuant to a

Form EOIR-27 or Form EOIR-28 is required, as the proposed rule did.

Given the changes the final rule makes to the entry of appearance

regulations, the Department has determined that revisions to the

existing definition of ``representation'' at 1001.1(m) are not needed.

See 8 CFR 1001.1(m) (``The term representation . . . includes practice

and preparation as defined in paragraphs (i) and (k) of this

section''). The definition will remain unchanged because

``representation'' is a term used elsewhere in the EOIR regulations,

namely, the rules of professional conduct and the rules governing who

can provide representation. See 8 CFR 1003.102(o) (disciplinary

sanctions may be imposed if a practitioner ``[f]ails to provide

competent representation,'' which ``requires the legal knowledge,

skill, thoroughness, and preparation reasonably necessary for the

representation''); 8 CFR 1292.1 (defining who is authorized to provide

representation). The changes in this final rule are intended to clarify

that practitioners may provide legal advice (i.e., engage in certain

forms of ``practice''), including, for example, engaging in

consultations with unrepresented noncitizens at a self-help clinic or

legal orientation program, without creating an obligation to enter a

full appearance as practitioner of record or otherwise represent the

noncitizen in proceedings before EOIR.

    The final rule requires an entry of appearance in two

circumstances: (1) when a practitioner wants to become the practitioner

of record, which authorizes and requires the practitioner to appear

before EOIR on behalf of the respondent, file all documents on behalf

of the respondent, and accept service of process of all documents filed

in the proceedings,\5\ 8 CFR 1003.17(a), 1003.38(g)(1); and, (2) when a

practitioner provides document assistance only and does not want to

become the practitioner of record, 8 CFR 1003.17(b), 1003.38(g)(2).

Practitioners who want to become a practitioner of record must enter an

appearance on either Form EOIR-27 or Form EOIR-28. See 1003.17(a),

1003.38(g). Practitioners who only provide document assistance and do

not want to become the practitioner of record must enter a limited

appearance for document assistance on Form EOIR-60 or Form EOIR-61. See

1003.17(b). Practitioners can provide document assistance to pro se

noncitizens by drafting, completing, or filling in of blank spaces of a

specific motion, brief, form, or other document or set of documents

intended to be filed with EOIR. In order to avoid any confusion as to

what kinds of document assistance require the filing of a limited

appearance form, when practitioners engage in any document assistance

for pro se noncitizens, they must complete a Form EOIR-60 or Form EOIR-

61, regardless of whether the practitioners' conduct with respect to

the documents constitutes ``practice'' or ``preparation.''

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    \5\ In immigration court proceedings, a practitioner can enter

an appearance and become the practitioner of record for ``custody or

bond proceedings only, any other proceedings only, or for all

proceedings.'' 8 CFR 1003.17(a).

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  1. Entry of Appearance as Practitioner of Record

    Under the current rules, it is unclear whether it is the

practitioner or some other triggering event, such as engaging in

``practice'' or ``preparation,'' that determines when an entry of

appearance is required. While the final rule makes no changes to the

actions practitioners take to become the practitioner of record--

namely, the requirement to enter an appearance on Form EOIR-27 or Form

EOIR-28--it does remove any reference to ``represented'' in order to

eliminate any perception that all acts constituting ``practice,''

``preparation,'' or ``representation'' determine the entry of such

appearance. The final rule revises 1003.17(a) and 1003.38(g) to make

clear that practitioners become practitioners of record, regardless of

whether they are engaging in ``practice'' or ``preparation'' or

otherwise meeting the definition of ``representation,'' when they seek

authorization to and wish to take on the responsibilities and

obligations of that role, which includes appearing at hearings, filing

documents on behalf of a noncitizen, and accepting service on behalf of

a noncitizen. Practitioners are not authorized to engage in these

activities or have these obligations unless they have entered an

appearance on Form EOIR-27 or Form EOIR-28.

  1. Entry of Limited Appearance for Document Assistance

    When a practitioner's services to a pro se noncitizen are limited

to document assistance, and they are not practitioner of record before

the immigration court or the BIA, practitioners are required to enter a

limited appearance on Form EOIR-60 or Form EOIR-61. See generally 8 CFR

1003.17(b), 1003.38(g)(2). ``Document assistance'' is described at

1003.17(b) (and in 1003.38(g)(2) with some minor variation) as

``assistance to a pro se respondent with the drafting, completion, or

filling in of blank spaces of a specific motion, brief, form, or other

document or set of documents intended to be filed'' with the

immigration court or BIA. Regardless of whether the practitioners'

document assistance constitutes ``practice'' or ``preparation,''

practitioners must complete the applicable entry of appearance form for

a limited appearance when they provide any document assistance. See id.

While discussing available forms of relief based on a particular

noncitizen's circumstances and providing legal advice about how to

complete an application for relief to be filed at an immigration court

constitute ``practice,'' such actions would not necessarily constitute

document assistance unless the practitioner also assisted with

drafting, completion, or filling in the applications for relief. In

addition to submitting the Form EOIR-60 or Form EOIR-61, practitioners

who have

 

[[Page 56251]]

 

engaged in document assistance are required to complete the ``preparer

section'' of any form for which assistance was provided and to disclose

that they drafted a document, such as a motion or brief, by placing

their name and signature on the document. 8 CFR 1003.17(c),

1003.38(g)(3). A limited appearance form is only required when

providing document assistance to a pro se noncitizen, and it is not

required of the practitioner of record who has already submitted a Form

EOIR-27 or EOIR-28.

  1. Scope of Conduct: ``Practice'' and ``Preparation''

    As described above, the Department received many comments

expressing concern that the proposed rule's definitions of ``practice''

and ``preparation'' could dissuade practitioners from entering

appearances to assist pro se noncitizens. The Department acknowledges

that the NPRM's definitions of ``practice'' and ``preparation,'' when

read in conjunction with the NPRM's requirements for entry of an

appearance, had the unintended consequence of causing confusion about

the type of conduct that requires an entry of appearance, for both

limited appearances for document assistance and to become the

practitioner of record, whether for removal proceedings, custody

proceedings, or both. Therefore, the final rule does not rely on these

definitions for determining when an entry of appearance is required for

either a limited appearance or to become the practitioner of record.

See, e.g., 8 CFR 1003.17(a), (b). Nonetheless, the final rule clarifies

and simplifies the definitions of ``practice'' and ``preparation''

because these definitions explain the kind of conduct in which only

practitioners can engage (i.e., practice), and the kind of conduct in

which both practitioners and non-practitioners can engage (i.e.,

preparation). Despite the difference between the terms, the Department

makes clear in the final rule that practitioners who engage in any

document assistance, whether ``practice'' or ``preparation,'' must

complete a Form EOIR-60 or EOIR-61. See 1003.17(b), 1003.38(g)(2).

  1. ``Practice''

    Commenters voiced concern with the NPRM's definition of

``practice'' and the interaction of that definition with the proposed

rule's entry of appearance requirements. They expressed concern that

the terms ``exercise of legal judgment'' and ``legal advice'' in the

NPRM's definition of ``practice'' indicated that nearly any action a

practitioner takes on behalf of a noncitizen would require an entry of

appearance. Specifically, they indicated that this broad definition of

``practice'' could cause any form of education, orientation, or

discussion with a pro se noncitizen to be considered ``practice'' and

to trigger the obligation to file an entry of appearance. They also

asserted that some conduct that was described as ``practice'' should

not require entry of an appearance.\6\

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    \6\ For example, some commenters expressed apprehension that the

proposed rule would end ``Friend of the Court'' programs, in which

participants assist the immigration court in person without entering

an appearance by providing information about particular noncitizens.

Contrary to this claim, the final rule does not affect the ability

of a person to appear as amicus curiae in immigration proceedings

because amicus curiae appear as an aid to the court and not as a

practitioner. See EOIR Director's Memorandum 22-06, Friend of the

Court, May 5, 2022, available at https://www.justice.gov/eoir/page/file/1503696/download.

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    As described above, although some actions constituting ``practice''

may require the entry of an appearance, the final rule does not rely on

the definition of ``practice'' in determining when an appearance must

be filed. The final rule revises 1003.17(a) and 1003.38(g) to make

clear that practitioners become the practitioners of record, pursuant

to the filing of a Form EOIR-27 or Form EOIR-28, when they seek

authorization to take on the responsibilities and obligations of that

role, which includes appearing at hearings, filing documents on behalf

of a noncitizen, and accepting service on behalf of a noncitizen. The

final rule further clarifies that the entry of a limited appearance

pursuant to the filing of a Form EOIR-60 or EOIR-61 is required only

when a practitioner is engaged in document assistance--described in

1003.17(b) as ``assistance to a pro se respondent with the drafting,

completion, or filling in of blank spaces of a specific motion, brief,

form, or other document or set of documents intended to be filed''--

with the immigration court or BIA. Thus, a limited appearance must

accompany any document assistance provided by a practitioner that is at

least ``preparation,'' regardless of whether it may also constitute

``practice.'' 8 CFR 1003.17(b), 1003.38(g)(2).

    The final rule does not adopt the language from the NPRM for the

definition of ``practice.'' See 85 FR at 61651. Instead, it defines

``practice'' as ``exercising professional judgment to provide legal

advice or legal services related to any matter before EOIR,'' with a

non-exhaustive description of conduct that constitutes practice in

order to further clarify the meaning of this language. 8 CFR 1001.1(i).

The description in the final rule includes a range of conduct: giving

legal advice, drafting and filing documents on behalf of another person

before EOIR, and appearing in person on behalf of another person before

EOIR. Id. Based on that description of conduct, examples of

``practice'' include, but are not limited to, the following actions if

taken by a practitioner: engaging in a consultation with an individual

about forming an attorney-client relationship for assistance in

immigration proceedings, or otherwise providing legal advice;

discussing available forms of relief based on a particular noncitizen's

circumstances; providing legal advice about how to complete an asylum

application to be filed at an immigration court; drafting a motion to

reopen on behalf of a noncitizen that is intended to be filed with the

BIA; and appearing before an immigration judge in person on behalf of a

noncitizen in removal proceedings.

    The rule maintains a broad definition of ``practice'' for a

specific reason: all practitioner conduct that constitutes

``practice''--not just conduct that requires entry of an appearance--

may be subject to EOIR's Rules of Professional Conduct and state rules

regulating attorney conduct. See, e.g., 8 CFR 1003.101. For example,

practitioners may be in violation of the EOIR Rules of Professional

Conduct or state rules for providing a noncitizen with erroneous advice

regarding the available forms of relief that the noncitizen relied on

to their detriment. Therefore, practitioners should be mindful that

even if entry of an appearance is not required, their actions might

nonetheless be subject to other provisions of the regulations or other

rules.

    As discussed above, the terms ``practice'' and ``preparation'' do

not determine when an appearance must be entered to become the

practitioner of record; practitioners may engage in some conduct

constituting ``practice'' or ``preparation'' without having to enter an

appearance to become the practitioner of record. Moreover, even if

engaging in ``practice'' or ``preparation,'' the practitioner may only

be required to enter a limited appearance if such conduct constitutes

document assistance as described in 1003.17(b) and 1003.38(g)(2). For

example, if a practitioner is leading a legal orientation session to a

group of pro se noncitizens, and in doing so, merely explains available

forms of immigration relief to them, the practitioner is not required

to enter an appearance of any kind. However, if a practitioner assists

a pro

 

[[Page 56252]]

 

se noncitizen in drafting an asylum application after the presentation

concludes, the practitioner must enter a limited appearance.

  1. ``Preparation''

    Commenters indicated that the proposed rule's definition of

``preparation'' could result in practitioners not providing assistance

to pro se noncitizens. They suggested that the definition could

discourage practitioners from taking any action that constitutes

``preparation'' that could also be considered ``practice'' (i.e., the

``exercise of professional judgment'' or ``provision of legal advice''

in identifying and completing forms) and thus, require entry of an

appearance under the NPRM's definitions. For example, commenters stated

that they would be less willing to ask basic questions of noncitizens

to assist them in completing forms or to solicit information in order

to guide them in selecting applications for relief, if it would require

an entry of appearance as practitioner of record and bind them to

further obligations to the noncitizen or EOIR.

    The final rule does not adopt the language of the proposed rule and

retains part of the language of the existing regulatory definition of

``preparation,'' stating that ``preparation'' consists ``solely of

filling in blank spaces on printed forms.'' \7\ The rule makes clear

that such action does not include the ``exercise of professional

judgment to provide legal advice or legal services''; instead, the

provision of legal advice or services is included under the definition

of ``practice,'' to explicitly distinguish ``preparation'' from

``practice.'' See 8 CFR 1001.1(i), (k).

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    \7\ Additionally, in response to commenters' request, the final

rule removes references to the Department of Homeland Security (DHS)

in the ``preparation'' definition, as DHS is a separate agency with

its own definitions. See 8 CFR 1.2. The final rule retains existing

pre-NPRM regulatory language regarding non-practitioner preparation

and the requirement that any fees for such assistance be nominal and

that the non-practitioner cannot hold themselves out as qualified in

legal matters or immigration or naturalization procedures. See 8 CFR

1001.1(k).

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    The Department believes that the commenters' concerns have been

sufficiently addressed. As noted, supra, an entry of appearance to

become the practitioner of record and to seek authorization to take on

the associated responsibilities and obligations is not dictated by the

terms ``practice'' or ``preparation.'' The entry of limited appearances

for document assistance does not bind practitioners to provide further

assistance, which should encourage rather than deter practitioners from

providing assistance to noncitizens.\8\ While a practitioner will

always be required to enter a limited appearance when engaged in

``preparation'' (i.e., the ministerial act of filling in the blanks of

printed forms), doing so does not bind the practitioner to further

obligations to the noncitizen or EOIR. Even if practitioners engage in

``practice'' when providing document assistance, they are only required

to enter a limited appearance per a Form EOIR-60 or EOIR-61.

---------------------------------------------------------------------------

 

    \8\ Some commenters indicated that it is unfair to require only

practitioners engaging in ``preparation'' to complete an entry of

limited appearance form if non-practitioners engaging in the exact

same conduct are not obligated to do so. The Department disagrees.

Practitioners have specific legal and ethical obligations due to

their status as practitioners. Indeed, the final rule requires

completion of a Form EOIR-60 or EOIR-61 in order to have the

practitioner attest that they understand that EOIR's Rules of

Professional Conduct govern their conduct. See Forms EOIR-60 and

EOIR-61. Non-practitioners are limited to engaging in conduct that

is exclusively ``preparation,'' which is a narrow segment of conduct

because the preparation of most forms requires engaging in

``practice.'' Moreover, non-practitioners engaging in preparation of

forms are still required to complete the preparer section of the

forms, when applicable. EOIR's Fraud and Abuse Prevention Program

will continue to be investigate reports of non-practitioners

engaging in services beyond those authorized (i.e., engaging in the

unauthorized practice of law), including those kinds of conduct

defined as ``practice'' in this rule. See EOIR, Fraud and Abuse

Prevention Program, available at https://www.justice.gov/eoir/fraud-and-abuse-prevention-program (last updated Mar. 4, 2020).

---------------------------------------------------------------------------

 

    For example, practitioners, without further obligation, may

permissibly assist a pro se noncitizen in completing a change of

address form (Form EOIR-33) and engage in ``preparation,'' provided

that the practitioner completes a limited appearance form.\9\ Without

further obligation to become the practitioner of record, practitioners

may also assist pro se noncitizens in completing asylum applications

and provide legal advice on how to present claims on the form, even

though they are engaging in ``practice'' and ``preparation.''

Practitioners doing so are required to complete a Form EOIR-60 or EOIR-

61 to be filed with the application and to complete the preparer

section of the form. Conversely, if a practitioner is merely reading an

administrative form to the applicant, in English or in the applicant's

primary language, an entry of appearance would not be required.

---------------------------------------------------------------------------

 

    \9\ The Form EOIR-60 and Form EOIR-61 are estimated to take no

more than 6 minutes to complete.

---------------------------------------------------------------------------

 

  1. Form EOIR-60 and Form EOIR-61

    In contemplating changes to the manner of entry of appearance forms

as suggested by the proposed rule, some commenters stated that

completing an additional appearance form for actions that did not

previously require an appearance form is too burdensome, especially

when they must also complete the ``preparer section'' of a form. After

careful deliberation, the Department determined that the informational

needs of requiring such disclosure far outweigh the burden imposed on

practitioners.

    The goals of this rulemaking include providing greater flexibility

to practitioners to be able to assist noncitizens appearing pro se

before EOIR; providing increased access to legal assistance for such

noncitizens, while adding protections to reduce the risk of individuals

being victimized by ``ghostwriting'' and fraud; and ensuring

practitioners are abiding by EOIR's Rules of Professional Conduct. The

Department determined that identification of practitioners through the

submission of an entry of limited appearance form, plus the additional

requirements regarding the ``preparer section'' on forms and disclosure

of assistance on other documents through name and signature, will

reduce the risk to the public of unscrupulous individuals that

currently prey on vulnerable noncitizens through ``ghostwriting.'' For

example, the Department believes that, by increasing flexibility for

practitioners who wish to provide varying types of assistance to

noncitizens in proceedings before EOIR, the pool of individuals engaged

in legitimate practices and available to assist noncitizens will

expand, leaving less room for bad actors. Such requirements will also

hold practitioners accountable for the document assistance they perform

pursuant to the final rule.

    Ghostwriting is a practice that occurs when an unidentified

individual, whether a practitioner or non-practitioner, assists a

noncitizen with or drafts pleadings, applications, petitions, motions,

briefs, or other documents that are filed with EOIR. Ghostwritten

documents can contain false or fraudulent information, sometimes

unbeknownst to the noncitizen, and often present substandard,

incomplete, inaccurate, or boilerplate work products. Ghostwriting is

often a means for unscrupulous or unqualified individuals and other bad

actors to deceive and mislead noncitizens and EOIR or, with the

acquiescence of noncitizens, ghostwriting may be a means to perpetuate

fraud and undermine proceedings.

    As described in the NPRM, ghostwriting is harmful to parties and

undermines the integrity of proceedings, candor to the tribunal, and

 

[[Page 56253]]

 

accountability. See 85 FR at 61647; see also, e.g., Villagordoa Bernal

  1. Rodriguez, No. 16-cv-152-CAS, 2016 WL 3360951, at *7 (C.D. Cal. June

10, 2016) (``[T]he parties are reminded that ghostwriting of pro se

filings is, of course, inappropriate and potentially sanctionable

conduct.'') (citing Ricotta v. Calif., 4 F. Supp. 2d 961, 986 (S.D.

Cal. 1998))); Tift v. Ball, No. 07-cv-276-RSM, 2008 WL 701979, at *1

(W.D. Wash. Mar. 12, 2008) (``It is therefore a violation for attorneys

to assist pro se litigants by preparing their briefs, and thereby

escape the obligations imposed on them under Rule 11.''); Laremont-

Lopez v. SE Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79

(E.D. Va. 1997) (explaining that ghostwriting causes confusion

regarding representation, interferes with the administration of

justice, constitutes a misrepresentation to the court under Rule 11,

and while ``convenient for counsel,'' disrupts the proper conduct of

proceedings).

    Importantly, under the final rule, allowing practitioners to enter

an appearance for document assistance without further obligation to act

on behalf of a pro se noncitizen should expand noncitizens' access to

practitioner assistance. Indeed, commenters indicated that they would

be able to provide more services to noncitizens if limited appearances

for document assistance were permitted. Unqualified or unethical

individuals and other bad actors should have a reduced ability to

operate in immigration proceedings through ``ghostwriting'' because

practitioners who may have been dissuaded from providing assistance if

they could not limit their role to document assistance will be more

willing to engage in a limited appearance, thereby furthering the

ability of noncitizens to find authorized and competent practitioners

who are willing to identify themselves and provide assistance.

Identification will also enable noncitizens, EOIR, and other

authorities to hold practitioners accountable for the quality and

substance of the limited documentary assistance work they perform.

    These benefits far outweigh the burdens of having to complete the

entry of a limited appearance form, which is estimated to take only 6

minutes to complete, and the other disclosure requirements of the final

rule. See infra Section V.H. Paperwork Reduction Act of 1995 (further

explaining the benefits of these regulatory changes). Indeed, as

described below, the new limited appearance forms are less burdensome

than the revisions to the appearance forms the Department proposed in

the NPRM. In contrast to the originally proposed forms, the new Forms

EOIR-60 and Form EOIR-61 do not include the proposed information

collection that would have required signature by the noncitizen and

disclosure of fees charged by a practitioner.

    Given the benefits of identifying practitioners who provide only

document assistance before EOIR, the Department agrees with the

commenters that separate appearance forms for the entry of a limited

appearance are more appropriate than attempting to modify the existing

appearance forms to capture this unique type of appearance. Further,

the Department recognizes that revising the Form EOIR-27 and Form EOIR-

28 to encompass substantially different circumstances could cause

confusion over the practitioner's representation status. Thus, the

Department created the Form EOIR-60 and Form EOIR-61 for practitioners'

entry of a limited appearance rather than revising Form EOIR-27 and

Form EOIR-28. These new forms provide the most efficient means for EOIR

to track the identity of practitioners who have entered a limited

appearance for document assistance, as distinct from those who have

entered an appearance as practitioner of record.

    Some commenters indicated that the Department did not allow the

public an opportunity to comment on the draft forms contemplated for

limited appearances. Pursuant to the Paperwork Reduction Act of 1995,

agency discussion of the information collection and the provision of

instructions for providing public comments in the associated rulemaking

is sufficient to provide the required public notice. See 44 U.S.C.

3506(c)(2)(A) (listing considerations for which an agency must solicit

public comment on proposed information collections). The NPRM contained

such information and described the intended changes to the Forms EOIR-

27 and EOIR-28. See 85 FR at 61647. However, after consideration of the

public comments that recommended separate forms for entering a limited

appearance in balance with the agency's needs, the Department decided

to proceed in line with that recommendation. In order to provide the

public with the opportunity to comment on that decision, the Department

published a 60-day notice in the Federal Register on August 30, 2021,

that the Department was inviting public comments ahead of its

submission to the Office of Management and Budget for review and

approval. See 86 FR 48443. The public comment period closed on October

29, 2021. No public comments were received.

  1. Requirements of Form EOIR-60 and Form EOIR-61

    When a Form EOIR-60 or Form EOIR-61 is completed, the final rule

provides that it must not be filed as a standalone document. 8 CFR

1003.17(b)(1), 1003.38(g)(2)(i). Rather, a single Form EOIR-60 or Form

EOIR-61 must be filed with the immigration court or the BIA,

respectively, with the document on which a practitioner has provided

assistance. If a practitioner prepares, drafts, or completes a set of

documents that are filed together, a single Form EOIR-60 or Form EOIR-

61 may be completed to accompany that set of documents. Id. As provided

in this rule, the practitioner must also complete the preparer section

of any forms, if applicable, and must identify the practitioner by name

and signature on any motions or briefs being submitted. 8 CFR

1003.17(c), 1003.38(g)(3). Noncitizens may file the entry of a limited

appearance and assisted documents themselves or may arrange for an

individual, such as the practitioner who assisted, to file the

documents in accordance with EOIR filing policies. See, e.g., EOIR,

Immigration Court Practice Manual Ch. 3.1(a), available at https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual

(last updated Dec. 16, 2021) (explaining how documents may be filed

with EOIR, either through the U.S. Postal Service or by courier, or

electronically where permitted and/or required, and that ``[h]and-

delivered filings should be brought to the Immigration Court's public

window during that court's filing hours''). After any such initial

filing of a document or set of documents with a Form EOIR-60 or EOIR-

61, a subsequent filing of a document or set of documents in which a

practitioner provided document assistance must be accompanied by a

separate Form EOIR-60 or Form EOIR-61. 8 CFR 1003.17(b)(1),

1003.38(g)(2)(i).

    The Form EOIR-60 and Form EOIR-61 requires the practitioner to

provide the following data: practitioner's name; contact information;

bar number (``BAR#'') or EOIR identification number (``EOIR ID#''),\10\

as applicable; and a

 

[[Page 56254]]

 

description of the underlying document(s) for which assistance was

provided. The practitioner's signature attests that they explained the

scope of their limited assistance to the pro se noncitizen,\11\ that

they are an authorized and qualified ``practitioner,'' and that they

understand that they are bound by EOIR's Rules of Professional Conduct.

The Department has taken steps to minimize any burden imposed on

practitioners by deleting the ``certification by the pro se

respondent'' and ``fees charged'' fields as proposed by the NPRM. See

85 FR at 61645. The Department agrees with commenters that the

information regarding fees is unnecessary because such information is

not captured on the Form EOIR-27 or Form EOIR-28 and because excessive

or unethical legal fees are regulated through EOIR's Rules of

Professional Conduct and similar state rules and standards. The

Department estimates that the Forms EOIR-60 or EOIR-61 are expected to

take no more than 6 minutes to complete.

---------------------------------------------------------------------------

 

    \10\ In response to a commenter's question regarding

registration to practice before EOIR, the regulations at 8 CFR

1292.1(f) already authorize the registration of ``attorneys and

accredited representatives . . . as a condition of practice before

immigration judges or the Board of Immigration Appeals.'' Under the

registration procedures established pursuant to these regulations,

practitioners who are attorneys or accredited representatives are

already required to complete the electronic registration process

prior to entering an appearance before EOIR, regardless of whether

that appearance is limited to providing document assistance.

    \11\ Relatedly, the Department is cognizant of potential

difficulties raised by the public in completing document assistance

with noncitizens who are detained. However, those difficulties exist

independently of the final rule. In fact, if a practitioner is able

to provide underlying document assistance to a detained noncitizen,

then they will be able to explain the scope of their limited

appearance--as required by the attestation on the Form EOIR-60 and

EOIR-61--at the same time. Similar to the current entry of

appearance forms EOIR-27 and EOIR-28, the noncitizen's signature is

not required on the EOIR-60 and EOIR-61, further minimizing the

burden of entering a limited appearance.

---------------------------------------------------------------------------

 

  1. Noncitizen Retains Pro Se Status

    In cases where a practitioner enters a limited appearance for

document assistance, the noncitizen remains pro se and unrepresented in

the EOIR proceedings. See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii).

Through the submission of the Form EOIR-60 or Form EOIR-61, the

practitioner is not transformed into the practitioner of record, and

thus, is not required to appear in immigration court or before the BIA

on the noncitizen's behalf, will not receive service of process of any

case filings, and will not be provided with access to the record of

proceedings.\12\ See 8 CFR 1003.17(b)(2), 1003.38(g)(2)(ii).

---------------------------------------------------------------------------

 

    \12\ Commenters urged that access to the record of proceedings

should be allowed for practitioners entering limited appearances.

However, the Department decided that existing access procedures

properly balance access with security and confidentiality and should

remain unchanged given the discrete scope of a limited appearance

for document assistance. This is particularly so, given that

practitioners engaging in limited appearances do not have the same

obligations as those intending to be practitioner of record. Thus,

the final rule makes no changes to existing record of proceedings

access procedures. See, e.g., EOIR, Immigration Court Practice

Manual, Ch. 1.6(c) (last updated Feb. 14, 2022) (explaining access

procedures). Alternatively, practitioners who are not the

practitioner of record in a case may obtain the record of proceeding

from the noncitizen--who may make an electronic request by email

directly to the immigration court or BIA for a copy--or

practitioners may submit a Freedom of Information Act (FOIA) request

to EOIR that includes signed written consent from the noncitizen who

is the subject of the record of proceeding. See e.g., id., at Ch.

12.2 (describing the process for making a request directly with the

immigration court or BIA or through the FOIA process).

---------------------------------------------------------------------------

 

  1. Rules of Professional Conduct

 

    Many commenters indicated that the NPRM's proposed revisions to the

disciplinary rule, 8 CFR 1003.102(t), to delete the ``pattern or

practice'' requirement, and instead include language that indicates

that failure to file an appearance form even one time could result in

disciplinary action, is problematic because a single mistake should not

be sufficient to institute disciplinary action. Moreover, they raised

concerns regarding the proposed revisions to 8 CFR 1003.102(u), which

would penalize the drafting of documents that are later filed with

EOIR. Commenters stated that, due to the proposed provision's ambiguity

about the scope of ``drafting,'' disciplinary action could be based on

templates or example briefs that organizations provide to pro se

noncitizens but are completed later in time without the assistance of a

practitioner. Practitioners are concerned that they could be

disciplined for substandard quality of such filings when they did not

actually assist in completing them.

    The Department agrees that 8 CFR 1003.102(t) should include

language to clarify that a single instance of failing to file an

appropriate entry of appearance form does not lead to disciplinary

action. Therefore, the final rule amends 8 CFR 1003.102(t) to allow

discipline of any practitioner who ``repeatedly'' fails to sign and

file the appropriate entry of appearance form. ``Repeatedly,'' rather

than ``pattern or practice,'' is an easily understood standard that is

used for other grounds for discipline. See 8 CFR 1003.102(l)

(``[r]epeatedly fails to appear . . .''); 1003.102(u) (``[r]epeatedly

files notices, motions, briefs, or claims that reflect little or no

attention to the specific factual or legal issues . . .'').

``Repeatedly'' serves to clarify that only a practitioner who fails to

file the proper appearance form on more than one occasion is subject to

discipline. Additionally, based on the changes in this final rule--to

both the definitions of ``practice'' and ``preparation'' and the

provisions of 8 CFR 1003.17 and 1003.38--references to ``practice'' and

``preparation'' in the current 8 CFR 1003.102(t) have been removed as

unnecessary to effectively describe the conduct subject to disciplinary

action.\13\

---------------------------------------------------------------------------

 

    \13\ The terms ``practice'' and ``preparation'' as included in

current 8 CFR 1003.102(t) were, in part, the subject of a Federal

lawsuit, Northwest Immigration Rights Project (NWIRP) v. Garland,

No. 2:17-cv-00716 (W.D. Wash.). To the extent commenters have raised

concerns that the proposed rule violates a Settlement Agreement

entered in that litigation, such concerns are unfounded as the final

rule satisfies the aims of the Settlement Agreement. See generally

Notice of Settlement and Filing of Settlement Agreement, NWIRP v.

Barr, No. 2:17-cv-00716 (W.D. Wash. Apr. 17, 2019) (permitting

Department to aim to promulgate regulations allowing practitioners

to provide pro se noncitizens with document assistance without

requiring practitioner to enter appearance as practitioner of record

and to require identification of such practitioners to EOIR with the

option of disciplinary procedures for failing to do so).

---------------------------------------------------------------------------

 

    The final rule also amends 8 CFR 1003.102(u) to subject

practitioners to discipline if they repeatedly ``draft'' notices,

motions, briefs or claims that are filed with DHS or EOIR that rely on

boilerplate language and reflect little or no attention to the specific

facts or legal issues applicable to a client's case. This ground of

discipline currently focuses on practitioners who repeatedly ``file''

such documents. See 65 FR 39526, June 27, 2000, as amended at 73 FR

76923, Dec. 18, 2008, 81 FR 92362, Dec. 19, 2016 (8 CFR 1003.102(u)).

Given that practitioners can permissibly draft documents for pro se

noncitizens under the changes to the final rule that permit a limited

appearance for document assistance, the Department determined that it

is necessary to amend this ground to hold practitioners accountable for

the quality of their assistance on such documents. 8 CFR 1003.102(u).

The applicability of this provision should not depend on whether

documents drafted by a practitioner under this rule are ``filed'' by

the practitioner or are ``filed'' by the noncitizen after receiving the

practitioner's documentary assistance.

    Commenters' concern about being subject to discipline for documents

completed and filed by pro se noncitizens without practitioner

assistance is unfounded. The use of template documents or form

pleadings, drafted by a practitioner but later completed and filed by

pro se noncitizens who add case-specific information without any

assistance by the practitioner, need not be accompanied by a Form EOIR-

60 or Form EOIR-61 or the practitioner's name and signature. Because

the practitioner who created the template or form pleading did not

provide

 

[[Page 56255]]

 

assistance with the drafting of the case-specific content of the

document filed by the noncitizen, the practitioner would not be

responsible for such document.\14\

---------------------------------------------------------------------------

 

    \14\ However, the template itself or the provision of such a

template may implicate other disciplinary rules depending on the

facts and circumstances. For example, if the template is legally

deficient in some manner, disciplinary rules may be at issue.

---------------------------------------------------------------------------

 

    Further, the final rule creates a separate ground for discipline at

8 CFR 1003.102(w), which requires practitioners to sign documents in

conformity with EOIR rules and any form instructions. This provision

builds on and provides further clarity to the prohibition on

practitioners failing to sign pleadings, applications, motions, or

other filings that was previously included at 8 CFR 1003.102(t)(2).

 

  1. Miscellaneous Changes

 

    Finally, the final rule makes changes to 8 CFR 1003.2 and 1003.3 to

include references to when the new entry of appearance form, Form EOIR-

60, must be utilized in filings regarding reopening before the BIA and

when the form must be filed with a Notice of Appeal before the BIA,

respectively. This clarification is necessary to inform practitioners

that any document assistance with respect to filings regarding

reopening before the BIA or a Notice of Appeal before the BIA falls

under the scope of 8 CFR 1003.38 and thus requires an entry of

appearance.

    Additionally, the final rule moves (without change) the definition

of the term ``practitioner'' from EOIR's Rules of Professional Conduct,

see 8 CFR 1003.101(b), to the list of generally applicable definitions

section. The Department is moving this term for clarity since the

provisions at 8 CFR 1003.17 and 1003.38 regarding entry of appearances

apply to all types of practitioners.

 

  1. Notice-and-Comment Requirements

 

    The NPRM provided for a 30-day notice and comment period as

required pursuant to 5 U.S.C. 553. The proposed rule provided

sufficient detail and rationale to permit interested parties to comment

meaningfully. Indeed, the Department received a number of substantive

comments recommending changes to the rule that have, in fact, been

adopted in certain respects. For example, pursuant to the public input

received, the final rule eliminates the proposed requirements to

disclose fees and obtain a signed written attestation from the

noncitizen and creates separate forms for entering a limited

appearance. Despite the discussion of the relevant issues in the NPRM,

some commenters contended that the 30-day comment period for this rule

was insufficient because there were significant equities at stake, this

rule was not time-sensitive, and the COVID-19 pandemic made it

difficult to respond properly to the proposed rule on a short

timeframe.

    While the APA does not require a minimum specific length of time

for the comment period, the Department believes the 30-day comment

period was clearly sufficient given the limited set of issues addressed

in the NPRM and the volume and detail of comments received. See 5

U.S.C. 553(b), (c). Moreover, the Department provided an additional 60-

day notice and comment period to comment on the proposed entry of

limited appearance Forms EOIR-60 and EOIR-61, which reflected that the

disclosure of fees and attestation from the noncitizen were not being

required. No comments were received regarding those forms during that

comment period.

    The revisions to ``practice'' and ``preparation,'' at 8 CFR

1001.1(i) and (k), maintain the general framework of the definitions in

the proposed rule, and also provide additional clarity about their

scope. The changes to the regulatory text are within the scope of the

notice provided by the NPRM, and the adopted changes are consistent

with the public comments received. Therefore, the final rule is a

logical outgrowth of the proposed agency action described in the NPRM

See, e.g., Environmental Defense Center v. U.S. E.P.A., 344 F.3d 832,

851-52 (9th Cir. 2003); American Water Works ***'n v. E.P.A., 40 F.3d

1266, 1274 (D.C. Cir. 1994). Thus, the purpose of the NPRM was

adequately stated and the interested parties could reasonably have

anticipated the final rulemaking from the NPRM and the comments

received.

 

  1. Regulatory Requirements

 

  1. Administrative Procedure Act

 

    This final rule is being published with a 60-day delayed effective

date, greater than the minimum 30-day period required by the

Administrative Procedure Act. 5 U.S.C. 553(d).

 

  1. Regulatory Flexibility Act

 

    The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that this rule will not have a significant economic

impact on a substantial number of small entities. Though many

practitioners may qualify as small entities under the Regulatory

Flexibility Act, the burdens of this rule will typically be limited to

the submission of forms identifying their personal participation, a

requirement estimated to require 6 minutes of time in each instance.

    Practitioners who wish to represent noncitizens in person as

practitioner of record in immigration proceedings are already required

to submit a Form EOIR-27 or EOIR-28, and all individuals who prepare an

application form or other form for a noncitizen are already required to

disclose such preparation if the form requires it. This rule will

require practitioners who provide document assistance to noncitizens to

submit a Form EOIR-60 or EOIR-61, if they elect not to become the

practitioner of record to represent them in EOIR proceedings. However,

most, if not all, such practitioners are well-versed in submitting a

similar Form EOIR-27 or EOIR-28 for entry of appearance in cases in

which they do represent a noncitizen in proceedings before EOIR. The

new Forms EOIR-60 or EOIR-61 are similar in nature to the existing

appearance forms, and therefore, should be simple to complete. They are

not expected to take more than 6 minutes to complete and will only

involve providing information that the practitioner providing

assistance already knows well--i.e., their own contact information and

identification of the documents they assisted with.

    The Department has also determined that the needs of requiring such

disclosure far outweigh the burden imposed on practitioners. The goals

of this rulemaking include providing greater flexibility to

practitioners to be able to assist noncitizens appearing pro se before

EOIR and increasing access to legal assistance for such noncitizens

because practitioners who may have been dissuaded from providing

assistance if they could not limit their role to document assistance

will be more willing to engage in a limited appearance. The Department

expects that this rulemaking will increase the number of competent

practitioners willing to identify themselves to EOIR. These changes, in

turn, will likely diminish the risk of individuals being exploited by

unaccountable ``ghostwriting'' because unqualified and unethical

individuals should have a reduced ability to operate in immigration

proceedings. Finally, the enhanced identification provisions of the

rulemaking will ensure that practitioners are abiding by EOIR's Rules

of Professional Conduct by allowing EOIR to hold practitioners

accountable for the quality and substance of their work.

    In order to achieve these goals, EOIR must have a means of

accurately

 

[[Page 56256]]

 

identifying practitioners providing document assistance under the terms

of this rule. The Department recognizes that requiring practitioners to

complete an entry of limited appearance form does impose a burden on

practitioners, and the Department has taken steps to minimize that as

much as possible, without sacrificing the requirements necessary to

safeguard noncitizens from unscrupulous actors. Therefore, even though

there will be an impact on practitioners, the Department believes that

the needs far outweigh the burden.

 

  1. Unfunded Mandates Reform Act of 1995

 

    This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year (as adjusted for inflation), and it

will not significantly or uniquely affect small governments. Therefore,

no actions were deemed necessary under the provisions of the Unfunded

Mandates Reform Act of 1995.

 

  1. Congressional Review Act

 

    This rule is not a major rule as defined by section 804 of the

Congressional Review Act. However, the Department will be submitting

the required reports under the Congressional Review Act to the

Government Accountability Office and to the House and Senate.

 

  1. Executive Orders 12866 and 13563

 

    The Office of Information and Regulatory Affairs (OIRA) has

determined that this rule is a ``significant regulatory action'' under

section 3(f) of Executive Order 12866 (Regulatory Planning and Review).

Accordingly, this rule has been submitted to the Office of Management

and Budget (OMB) for review. This rule has been drafted and reviewed in

accordance with Executive Order 12866's section 1(b), Principles of

Regulation, and in accordance with section 1(b) of Executive Order

13563 (Improving Regulation and Regulatory Review), General Principles

of Regulation.

    Executive Orders 12866 and 13563 direct agencies to assess all

costs and benefits of available regulatory alternatives and, if

regulation is necessary, to select regulatory approaches that maximize

net benefits (including potential economic, environmental, public

health, and safety effects, distributive impacts, and equity).

Executive Order 13563 emphasizes the importance of using the best

available methods to quantify costs and benefits, reducing costs,

harmonizing rules, and promoting flexibility.

    As discussed above, practitioners who wish to act as practitioner

of record for noncitizens in person in immigration proceedings are

already required to submit Form EOIR-27 or EOIR-28 and all individuals

who prepare an application form for a noncitizen are already required

to disclose such preparation if the form requires it. Although this

rule will require practitioners who provide document assistance to

noncitizens but elect not to become the practitioner of record to

represent them in court, to submit a Form EOIR-60 or EOIR-61, most, if

not all, such practitioners are well-versed in submitting a similar

Form EOIR-27 or EOIR-28 for cases in which they represent a noncitizen

in proceedings before EOIR.

    Moreover, the limited appearance form, which substantially mirrors

existing forms, will not add any significant time burden. The new Forms

EOIR-60 or EOIR-61 are similar in nature to the existing appearance

forms and are not expected to take more than 6 minutes to complete.

They only involve providing information that the practitioner providing

assistance already knows well--i.e., their own contact information and

basic details about the limited appearance by identifying the documents

for which they provided assistance. Any costs to practitioners will be

solely in relation to completing the limited appearance form and

explaining the scope of their assistance to the noncitizen. The

practitioner may, but is not required to, separately serve the form on

DHS or EOIR. Rather, the practitioner may provide the form to the pro

se noncitizen for them to file and serve with the underlying document.

    Thus, for the reasons explained above and in the NPRM, the expected

costs of this rule are likely to be de minimis.

 

  1. Executive Order 13132 (Federalism)

 

    This rule will not have substantial direct effects on the States,

on the relationship between the Federal government and the States, or

on the distribution of power and responsibilities among the various

levels of government. Therefore, in accordance with section 6 of

Executive Order 13132, the Department has determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a federalism summary impact statement.

 

  1. 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.

 

  1. Paperwork Reduction Act of 1995

 

    The Department of Justice, through EOIR, has submitted an

information collection request to OMB for review and clearance in

accordance with review procedures of the Paperwork Reduction Act of

1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing

regulations, 5 CFR part 1320. The Department, through EOIR, previously

submitted this rulemaking, including a request for a new information

collection (ICR Ref. No. 202111-1125-001), to the Office of Management

and Budget (OMB) for review and approval in accordance with the

Paperwork Reduction Act of 1995. This proposed information collection

was previously published in the Federal Register at 86 FR 48443 (Aug.

30, 2021), allowing for a 60-day comment period. OMB assigned OMB

Control Number 1125-0021 to this collection. Further comments are

encouraged and will be accepted for 30 days from the date of

publication of this rulemaking. Written comments and recommendations

for the proposed information collection should be sent within 30 days

of publication of this notice to https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting

``Currently under Review--Open for Public Comments'' or by using the

search function.

    The Department received comments related to the proposed

information collections associated with this rulemaking. In the

proposed rule, the Department stated that it would revise Form EOIR-26,

Notice of Appeal from a Decision of an Immigration Judge; Form EOIR-27;

and Form EOIR-28, to allow for limited appearances as contemplated in

this rule. See 85 FR at 61650. However, after further deliberation, the

Department has decided to pursue a new information collection request

(ICR) containing two new standalone forms for limited appearances

related to document assistance for pro se noncitizens. The Department

appreciates commenters' recommendation that the Department create

separate forms for the entry of a limited appearance before the

immigration courts and the BIA. The commenters' concerns that amending

the existing entry of appearance forms would cause confusion that could

lead to the misuse of the collection were valid. Thus, EOIR has created

the Forms

 

[[Page 56257]]

 

EOIR-60, Notice of Entry of Limited Appearance for Document Assistance

Before the Board of Immigration Appeals, and EOIR-61, Notice of Entry

of Limited Appearance for Document Assistance Before the Immigration

Court. The forms will be made available on EOIR's website, in a

fillable .pdf format. This rule implements new requirements for

practitioners to enter a limited appearance when assisting a pro se

noncitizen with documents intended to be filed with EOIR. This

information collection is necessary to allow a practitioner to notify

the BIA or the Immigration Court that the practitioner is entering a

limited appearance to assist a pro se noncitizen with a legal filing or

other document intended to be filed with EOIR. In completing the form,

practitioners must confirm that they have explained the scope of their

limited assistance to the noncitizen and the form must be filed with

the associated documents. The form creates no continuing obligation on

the part of the practitioner, and because of this, a new form must be

filed with each document submission. EOIR currently uses appropriate

information technology to reduce burdens and improve data quality,

agency efficiency, and responsiveness to the public. Under this rule,

EOIR will continue to do so to the maximum extent practicable and will

explore implementing technology to facilitate information collections.

    Under the current regulation, it is estimated that it takes a total

of 6 minutes to complete an entry of appearance form. At this time, it

is difficult for EOIR to estimate the total receipts it will receive

for this new collection. Pursuant to the NPRM, EOIR estimated the total

receipts would be at least as many receipts as received for the other

two forms for the entry of appearance before the Immigration Court

(Form EOIR-28) and the Board of Immigration Appeals (Form EOIR-27).

These forms are used for practitioners who wish to appear on behalf of

a noncitizen in pending proceedings and remain the practitioner of

record to which all obligations and responsibilities attach. Forms

EOIR-28 and EOIR-27 are not used for limited appearance purposes, but

EOIR expects that at least some of those practitioners will enter

limited appearances to assist noncitizens with document filings.

Therefore, in order to not underestimate the burden, EOIR will assume

that it will receive as many entries for limited appearances as it does

for full appearances. Therefore, the total number of submissions of the

Forms EOIR-60 and EOIR-61 are expected to be 841,029 (the total

receipts for the EOIR-27 (53,816) and EOIR-28 (787,213) for FY2019 as

provided in the NPRM). The total public burden of these revised

collections is estimated to be 84,102.9 burden hours annually (for Form

EOIR-27, 53,816 noncitizens (FY 2019) x 1 response per noncitizen x 6

minutes per response = 5,381.6 burden hours) + (for Form EOIR-28,

787,213 noncitizens (FY 2019) x 1 response per noncitizen x 6 minutes

per response = 78,721.3 burden hours) = 84,102.9 burden hours).

    Following the new ICR's review and approval by the Office of

Information and Regulatory Affairs (OIRA), the Department will publish

notice of the new forms in the Federal Register. Following that

publication, use of the new standalone form will be mandatory as

outlined in 8 CFR 1003.17(a)(2) and 1003.38(g)(1)(ii).

 

List of Subjects

 

8 CFR Part 1001

 

    Administrative practice and procedure, Immigration.

 

8 CFR Part 1003

 

    Administrative practice and procedure, [Noncitizens], Immigration,

Legal services, Organization and functions (Government agencies).

 

    Accordingly, for the reasons stated in the preamble, parts 1001 and

1003 of title 8 of the Code of Federal Regulations are amended as

follows:

 

PART 1001--DEFINITIONS

 

0

  1. The authority citation for part 1001 continues to read as follows:

 

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,

116 Stat. 2135; Title VII of Pub. L. 110-229.

 

 

0

  1. In Sec. 1001.1, revise paragraphs (i) and (k) and add paragraph

(ff) to read as follows:

 

 

Sec.  1001.1  Definitions.

 

* * * * *

    (i) The term practice means exercising professional judgment to

provide legal advice or legal services related to any matter before

EOIR. Practice includes, but is not limited to, determining available

forms of relief from removal or protection; providing advice regarding

legal strategies; drafting or filing any document on behalf of another

person appearing before EOIR based on an analysis of applicable facts

and law; or appearing on behalf of another person in any matter before

EOIR.

* * * * *

    (k) The term preparation means the act or acts consisting solely of

filling in blank spaces on printed forms with information provided by

the applicant or petitioner that are to be filed with or submitted to

EOIR, where such acts do not include the exercise of professional

judgment to provide legal advice or legal services. When this act is

performed by someone other than a practitioner, the fee for filling in

blank spaces on printed forms, if any, must be nominal, and the

individual may not hold himself or herself out as qualified in legal

matters or in immigration and naturalization procedure.

* * * * *

    (ff) The term practitioner means an attorney as defined in

paragraph (f) of this section who does not represent the Federal

Government, or a representative as defined in paragraph (j) of this

section.

 

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

 

0

  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; 28 U.S.C. 509, 510, 1746; sec.

2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;

section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506

and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section

1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

 

 

0

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

 

 

1003.2  Reopening or reconsideration before the Board of Immigration

Appeals.

 

* * * * *

    (g) * * *

    (1) English language, entry of appearance, and proof of service

requirements. A motion and any submission made in conjunction with a

motion must be in English or accompanied by a certified English

translation. If a party other than DHS is represented, any motion or

related filing by that party must be accompanied by a Form EOIR-27,

Notice of Entry of Appearance as Attorney or Representative Before the

Board, pursuant to 8 CFR 1003.38(g)(1). If a party other than DHS is

pro se and receives document assistance from a practitioner with a

motion or related filing pursuant to 8 CFR 1003.38(g)(2), a Form EOIR-

60 must be filed with the motion or related filing. In all cases, the

motion must include proof of service on the opposing party of the

motion and all attachments. If the moving party is not DHS, service of

the motion must be made upon the DHS office in which the

 

[[Page 56258]]

 

case was completed before the immigration judge.

* * * * *

 

0

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

 

 

1003.3  Notice of appeal.

 

    (a) * * *

    (3) General requirements for all appeals. The appeal must be

accompanied by a check, money order, or fee waiver request in

satisfaction of the fee requirements of Sec.  1003.8. If the respondent

or applicant is represented, pursuant to 8 CFR 1003.38(g)(1), a Form

EOIR-27, Notice of Entry of Appearance as Attorney or Representative

Before the Board, must be filed with the Notice of Appeal. If the

respondent or applicant receives document assistance from a

practitioner with the appeal, pursuant to 8 CFR 1003.38(g)(2), a Form

EOIR-60 must be filed with the Notice of Appeal. The appeal and all

attachments must be in English or accompanied by a certified English

translation.

* * * * *

 

0

  1. Revise Sec. 1003.17 to read as follows:

 

 

1003.17  Entry of appearance.

 

    (a) Entering an appearance using Form EOIR-28. A practitioner must

enter an appearance in proceedings before an immigration court using

Form EOIR-28 to perform the functions of and become the practitioner of

record. The practitioner of record is authorized and required to appear

in immigration court on behalf of the respondent, file all documents on

behalf of the respondent, and accept service of process of all

documents filed in the proceedings. The practitioner may enter an

appearance to be the practitioner of record for all proceedings before

the immigration court, or for custody and bond proceedings only, or for

all proceedings other than custody and bond proceedings. A

practitioner's entry of appearance in only a custody or bond proceeding

shall be separate and apart from an entry of appearance in any

proceeding other than custody or bond before the immigration court. The

Form EOIR-28 must indicate whether the practitioner's entry of

appearance is for all proceedings, for custody and bond proceedings

only, or for all proceedings other than custody and bond proceedings.

    (1) Filing Form EOIR-28. The practitioner must file a copy of the

Form EOIR-28 with the immigration court and serve a copy on DHS as

required by 8 CFR 1003.32. The practitioner must file and serve a Form

EOIR-28 even if the practitioner has previously filed a separate Notice

of Entry of Appearance with DHS for appearances before DHS or

previously entered a limited appearance using Form EOIR-61 in

connection with document assistance under paragraph (b) of this

section.

    (2) Effect of Filing Form EOIR-28. A practitioner who enters an

appearance using Form EOIR-28 is the practitioner of record and must

appear in immigration court on behalf of the respondent, file all

documents on behalf of the respondent, and accept service of process of

all documents filed in the proceedings, consistent with 8 CFR 1292.5.

Filing a Form EOIR-28 provides the practitioner with access to the

record of proceedings during the course of proceedings. A respondent

shall be considered represented for the proceedings in which an EOIR-28

has been filed.

    (3) Withdrawal or substitution. A practitioner who enters an

appearance on behalf of a respondent before the immigration court by

filing a Form EOIR-28 remains the practitioner of record unless an

immigration judge permits withdrawal or substitution during proceedings

upon oral or written motion submitted without fee.

    (b) Entering a limited appearance for document assistance using

Form EOIR-61. A practitioner who provides assistance to a pro se

respondent with the drafting, completion, or filling in of blank spaces

of a specific motion, brief, form, or other document or set of

documents intended to be filed with the immigration court, regardless

of whether such assistance is considered ``practice'' or

``preparation'' as defined in 8 CFR 1001.1, must disclose such limited

assistance to the immigration court using Form EOIR-61, unless pursuant

to paragraph (a) the practitioner has filed a Form EOIR-28 to become

the practitioner of record.

    (1) Filing Form EOIR-61. A Form EOIR-61 must not be filed as a

standalone document. The single Form EOIR-61 must be filed with the

immigration court at the same time as the document or set of documents

with which the practitioner assisted. Any subsequent filing of a

document or set of documents with which a practitioner assisted must be

accompanied by a new Form EOIR-61.

    (2) Effect of Filing Form EOIR-61. A practitioner who enters a

limited appearance using Form EOIR-61 is not the practitioner of

record, is not required to appear on behalf of respondent before the

immigration court, and is not required to submit a motion to withdraw

or substitute. The submission of a Form EOIR-61 does not create

additional ongoing obligations between the practitioner, the

respondent, and EOIR. An appearance through Form EOIR-61 does not

provide the practitioner with access to the record of proceedings. A

respondent who received assistance pursuant to this paragraph is not

represented, remains pro se, and is subject to service of process of

all documents filed in the proceedings, consistent with 8 CFR 1292.5.

    (c) Completing an appearance form, proof of qualification,

disclosure requirements, and identification. The practitioner must

properly complete and sign any Form EOIR-28 or Form EOIR-61, as

required by the form instructions. A practitioner's personal appearance

or signature on the Form EOIR-28 or Form EOIR-61 constitutes an

attestation that the person is authorized and qualified to appear as a

practitioner in accordance with Sec.  1292.1. Further proof that the

practitioner meets the qualifications of a practitioner as defined in

Sec.  1292.1 may be required. The completion of a Form EOIR-28 or Form

EOIR-61 in connection with an application or form that requires

disclosure of the preparer does not relieve a practitioner from

complying with the particular disclosure requirements of the

application or form. Notwithstanding the completion of a Form EOIR-28

or Form EOIR-61, the practitioner must identify themselves by name,

accompanied by their signature, on any document filed or intended to be

filed with the immigration court pursuant to an appearance under

paragraph (a) or (b).

 

0

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

 

 

Sec.  1003.38  Appeals

 

* * * * *

    (g) In proceedings before the Board on behalf of a respondent, a

practitioner must enter an appearance using Form EOIR-27 or Form EOIR-

60.

    (1) Entering an appearance using Form EOIR-27. In proceedings

before the Board, in order to become the practitioner of record, which

authorizes and requires the practitioner to appear before the Board on

behalf of the respondent, file all documents on behalf of the

respondent, and accept service of process of all documents filed in the

proceedings, a practitioner must enter an appearance using Form EOIR-

27.

    (i) Filing Form EOIR-27. The practitioner must file a copy of the

Form EOIR-27 with the Board and serve a copy on DHS as required by 8

CFR 1003.32. The practitioner must file and serve a Form EOIR-27 even

if the practitioner has previously filed a separate Notice of Entry of

Appearance with DHS for appearances before DHS

 

[[Page 56259]]

 

or a Form EOIR-28 with the immigration court, or has previously entered

a limited appearance using a Form EOIR-60 in connection with document

assistance under paragraph (g)(2) of this section.

    (ii) Effect of filing Form EOIR-27. A practitioner who enters an

appearance using Form EOIR-27 is the practitioner of record and must

appear before the Board on behalf of the respondent, file all documents

on behalf of the respondent, and accept service of process of all

documents filed in the proceedings, consistent with 8 CFR 1292.5.

Filing a Form EOIR-27 provides the practitioner with access to the

record of proceedings during the course of proceedings. A respondent

shall be considered represented for the proceedings in which a Form

EOIR-27 has been filed.

    (iii) Withdrawal or substitution. A practitioner who enters an

appearance on behalf of a respondent before the Board by filing a Form

EOIR-27 remains the practitioner of record unless the Board permits

withdrawal or substitution during proceedings only upon written motion

submitted without fee.

    (2) Entering a limited appearance for document assistance using

Form EOIR-60. A practitioner who provides assistance to a pro se

respondent with the drafting, completion, or filling in of blank spaces

of a motion, brief, form, or other specific document or set of

documents intended to be filed with the Board, regardless of whether

such assistance is considered ``practice'' or ``preparation'' as

defined in Sec.  1001.1, must disclose such limited assistance to the

Board using Form EOIR-60, unless pursuant to paragraph (g)(1) the

practitioner has filed a Form EOIR-27 to become the practitioner of

record.

    (i) Filing Form EOIR-60. A Form EOIR-60 must not be filed as a

standalone document. The single Form EOIR-60 must be filed with the

Board at the same time as the document or set of documents with which

the practitioner assisted. Any subsequent filing of a document or set

of documents with which a practitioner assisted must be accompanied by

a new Form EOIR-60.

    (ii) Effect of Filing Form EOIR-60. A practitioner who enters a

limited appearance using Form EOIR-60 is not the practitioner of

record, is not required to appear before the Board, and is not required

to submit a motion to withdraw or substitute. The submission of a Form

EOIR-60 does not create additional ongoing obligations between the

practitioner, the respondent, and EOIR. An appearance through Form

EOIR-60 does not provide the practitioner with access to the record of

proceedings. A respondent who received assistance pursuant to this

paragraph is not represented, remains pro se, and is subject to service

of process of all documents filed in the proceedings, consistent with 8

CFR 1292.5.

    (3) Completing an appearance form, proof of qualification,

disclosure requirements, and identification. The practitioner must

properly complete and sign any Form EOIR-27 or Form EOIR-60, as

required by the form instructions. A practitioner's personal appearance

or signature on the Form EOIR-27 or Form EOIR-60 constitutes a

representation that the person is authorized and qualified to appear as

a practitioner in accordance with 8 CFR 1292.1. Further proof that the

practitioner meets the qualifications of a practitioner as defined in 8

CFR 1292.1 may be required. The completion of a Form EOIR-27 or Form

EOIR-60 in connection with an application or form that requires

disclosure of the preparer does not relieve a practitioner from

complying with the particular disclosure requirements of the

application or form.

    Notwithstanding the filing of a Form EOIR-27 or Form EOIR-60, the

practitioner must identify themselves by name, accompanied by their

signature, on any document filed or intended to be filed with the Board

pursuant to an appearance under paragraph (g)(1) or (2) of this

section.

 

0

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

 

 

Sec.  1003.101  General provisions.

 

* * * * *

    (b) Persons subject to sanctions. Persons subject to sanctions

include any practitioner. Attorneys employed by the Department of

Justice shall be subject to discipline pursuant to Sec.  1003.109.

Nothing in this regulation shall be construed as authorizing persons

who do not meet the definition of practitioner to represent individuals

before the Board and the immigration courts or the DHS.

* * * * *

 

0

  1. Amend Sec. 1003.102 by:

0

  1. Removing the words ``Immigration Court'' in paragraphs (d) and (j)

and adding in their place the words ``immigration court'';

0

  1. Removing the words ``Immigration Courts'' in paragraph (f)(2)(i) and

adding in their place the words ``immigration courts'';

0

  1. Revising paragraphs (t) and (u); and

0

  1. Adding paragraph (w).

    The revisions and addition read as follows:

 

 

Sec.  1003.102  Grounds.

 

* * * * *

    (t) Repeatedly fails to submit a signed and completed entry of

appearance using the appropriate form in compliance with applicable

rules and regulations, including 8 CFR 292.4(a), 1003.17, and 1003.38;

    (u) Repeatedly drafts notices, motions, briefs, or claims that are

filed with DHS or EOIR that reflect little or no attention to the

specific factual or legal issues applicable to a client's case, but

rather rely on boilerplate language indicative of a substantial failure

to competently and diligently represent the client;

* * * * *

    (w) Repeatedly fails to sign any pleading, application, motion,

petition, brief, or other document prepared, drafted, or filed with DHS

or EOIR. The practitioner's signature must be in the practitioner's

individual name and must be handwritten or electronically in conformity

with the rules and instructions of the applicable system.

 

    Dated: September 9, 2022.

Merrick B. Garland,

Attorney General.

[FR Doc. 2022-19882 Filed 9-13-22; 8:45 am]

BILLING CODE 4410-30-P